UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION 

MARGARET A. MORAN, )

 )

Plaintiff )

 )

v. ) CIVIL NO. 2:12 cv 28

 )

MICHAEL J. ASTRUE, Commissioner, )

Social Security Administration, )

 )

Defendant )

OPINION AND ORDER

This matter is before the court on the petition for judicial

review of the decision of the Commissioner of Social Security

filed by the claimant, Margaret A. Moran, on January 18, 2012. 

For the reasons set forth below, the decision of the Commissioner

is REMANDED. 

Background

The claimant, Margaret A. Moran, applied for Widow’s Disability Insurance Benefits, alleging a disability onset date of

March 12, 2008. (Tr. 126-27) Her claim initially was denied on

July 17, 2008, and again denied upon reconsideration on September

2, 2010. (Tr. 34-35) Moran requested a hearing before an

Administrative Law Judge ("ALJ"). (Tr. 39) A hearing before ALJ

Michael Hellman was held on September 2, 2010, at which Moran,

her son, Scott Moran, and vocational expert Leonard Fisher, Ph.D.

testified. (Tr. 11-32) 

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On December 7, 2009, the ALJ issued his decision denying

benefits. (Tr. 36-53) The ALJ found that Moran was not under a

disability within the meaning of the Social Security Act. (Tr.

36-53) Following a denial of Moran’s request for review by the

Appeals Council, she filed her complaint with this court.

Moran was born on November 23, 1955, and was 52 years of age

at the time of her alleged disability onset. (Tr. 126) She

stands 5'4", weighs 170 pounds, and possesses a high school

diploma and certificate from secretarial school. (Tr. 13, 135)

Moran has no past relevant work. (Tr. 12)

In 1990, Moran suffered a severe Cerebrovascular Accident,

or stroke, in the left front and parietal lobes. (Tr. 13, 276)

As a result, Moran lost her ability to walk and speak. Moran

underwent rehabilitative therapy and learned how to walk again

and regained her speech, but the stroke had long-lasting effects. 

(Tr. 13, 276) Before her stroke, Moran was right hand dominant,

but as a result of the stroke, she suffered right-side paralysis

and has become dependent on her left hand. (Tr. 14, 19) Moran

has developed tendinitis on her left side. (Tr. 286-288, 291-92)

She also complains that her stroke caused memory loss, forgetfulness, right-sided weakness and paralysis, and difficultly writing

and walking. (Tr. 13, 20, 23-35, 147, 229, 276, 309)

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A computer tomography scan in 2003 displayed a large infarct

in the left frontal and parietal lobe, which was evidence of the

stroke she suffered 13 years earlier. (Tr. 276) The CT scan

also revealed that Moran’s brain had atrophied in several areas

of the right and left frontal and parietal lobes. (Tr. 276) 

Moran adapted her gait to her right-sided weakness. As a

result of putting more pressure on her left side, she experienced

a stress fracture in her left foot. (Tr. 309) She was prescribed

a bone stimulator to encourage new bone growth because her

fracture was slow to heal. (Tr. 299) Her adapted gait made her

more susceptible to falls and fractures. (Tr. 213, 228, 279,

309, 315, 354) 

Most of Moran’s medical records following her stroke were

destroyed by natural disaster or the passage of time. (Tr. 26,

335) The remaining available medical evidence shows that she

suffered depression after the stroke in addition to a period of

psychosis. (Tr. 308-09, 329) Over the last few years, her

physicians have recorded evidence of a hearing loss. (Tr. 344,

358)

After Moran filed her petition for benefits, she was interviewed by an employee of the Social Security Administration. The

interviewer described Moran as slow in understanding, answering,

and remembering details. (Tr. 128) He described her right hand

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as "crumpled" and noted that she had difficulty signing the

medical release. (Tr. 128) He also noted that she was slow to

rise and lower from her seat. (Tr. 128) 

Following her interview, Moran underwent a physical examination by Dr. M. Siddiqui, M.D. She reported her stroke and

complained of slurred speech and difficulty gripping with her

right hand, but she acknowledged improvement in her speech since

beginning therapy. (Tr. 228) Dr. Siddiqui’s examination revealed

symmetric extremities, mild stiffness with slight decreased range

of motion of the right shoulder, non-tender bilateral extremity

joints, no joint effusion, and mostly normal muscle and grip

strength. (Tr. 229) She had difficulty squatting, walking on her

heels and toes, and picking up and gripping a coin with her right

hand. (Tr. 229) Her range of motion in her right shoulder was

reduced by as much as 50 degrees from the standard. (Tr. 231) 

Her speech was slightly slurred, but Dr. Siddiqui noted that he

could understand her conversation. (Tr. 229) Dr. Siddiqui did

not give an opinion as to Moran’s disabled status.

Dr. Gary Durak conducted a psychological evaluation on

Moran. He found that Moran was oriented in all spheres, cooperative, and able to interact. (Tr. 242) She exhibited appropriate

appearance and normal motor activity, but she had problems

sitting, walking, standing, climbing stairs, and bending, and

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when using her right side, with lifting, reaching, grabbing, and

holding. Her speech reflected an expressive language disorder

and a communication disorder with delayed responses. (Tr. 242)

She was alert, but her concentration was "distractible" and her

memory was impaired. Moran’s thought processes and thought

content both were within normal limits. He found that her affect

and mood indicated depression. (Tr. 242) Dr. Durak administered

the Wechsler Memory Scale-III and found that Moran was in the

extremely low range in the areas of auditory immediate memory

(1st percentile), visual immediate memory (1st percentile), and

immediate memory (1st percentile). (Tr. 243) She was in the

borderline range in auditory delayed memory (3rd percentile),

visual delayed memory (3rd percentile), general memory (3rd percentile), and working memory (5th percentile). (Tr. 243-44) Dr.

Durak assigned Moran a Global Assessment of Functioning (GAF)

score of 45. (Tr. 244) 

In July 2008, state agency reviewing doctor Kenneth Neville,

Ph.D., completed a mental capacity assessment. (Tr. 248-251) He

reviewed the reports from the independent consultative examiners

and Moran’s surviving medical records. Dr. Neville completed a

checkbox form finding that Moran was moderately limited in her

ability to understand and remember detailed instructions, carry

out detailed instructions, maintain attention and concentration

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for extended periods, respond appropriately to changes in the

work setting, and complete a normal work day and work week

without interruptions from psychologically based symptoms. He

also determined that Moran could perform at a consistent pace

without an unreasonable number and length of rest periods. (Tr.

248-49) Moran was able to understand, remember, and carry out

simple instructions, make simple work-related decisions, remember

locations and simple work-like procedures, maintain an ordinary

routine without special supervision, relate to others, attend to

tasks for extended periods with normal pace, manage day-to-day

stress, adapt to workplace changes, and maintain a schedule. 

(Tr. 250) Dr. Neville determined that the consulting physicians

were mistaken in their observations of Moran’s abilities and had

exaggerated their findings. 

State agency reviewing physician Dr. F. Lavallo, M.D., also

completed a physical capacity assessment. (Tr. 266-273) He

determined that Moran could lift, carry, push, or pull up to 20

pounds occasionally and ten pounds frequently, stand, walk or sit

for six of eight hours a day, occasionally perform postural

activities, and occasionally reach and finger with the right

hand. (Tr. 267-269) Moran occasionally could climb ramps and

stairs, balance, stoop, kneel, crouch, and crawl. (Tr. 268) Dr.

Lavallo noted that Moran had a limited range of motion in her

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right shoulder and difficulty in gripping with her right hand. 

(Tr. 267) He also noted that Moran was limited in her ability to

reach in all directions, including overhead, and fingering or

fine manipulations. (Tr. 269) 

Moran’s treating physician, Dr. Ramaraj Yalavarthi, prepared

a letter dated September 13, 2011, stating that Moran had several

falls resulting in fractures, suffered from involuntary movements

of her left hand, right sided paralysis, and speech impairment

secondary to her stroke. (Tr. 369) Dr. Yalavarthi stated that

these conditions prevent Moran from engaging in any gainful

employment. (Tr. 369)

At the hearing before the ALJ, Moran testified that she

lived alone with her dog. (Tr. 11-12, 15) She had a high school

diploma and had not worked in over 25 years, although she tried

to obtain work after her stroke. (Tr. 12-13) She continued to

experience weakness and paralysis on her right side from her

stroke, and she had no control over her right hand, stating that

she used it only to carry her handbag on her wrist. (Tr. 19, 22)

She had difficulty with her memory, explaining that it had become

worse in the last few years, and she struggled to find the right

words to express herself. (Tr. 20-21) She got tired frequently

and had to take naps or rest on benches when out in public. (Tr.

21) Moran’s typical day involved getting up, letting her dog

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outside, and making coffee. (Tr. 14-15) She then made her bed,

bathed, and straightened her house, vacuuming if needed. (Tr.

15) She spent most of her day watching television and took short

naps. (Tr. 16, 21) She occasionally drove to the store. (Tr. 16)

Her sons often visited her and took her out to eat. (Tr. 16-17) 

She no longer could bowl, sew, or engage in hobbies. (Tr. 15-16)

Moran’s son, Scott Moran, was next to testify. He stated

that Moran was regressing, her right leg was getting weaker, and

he worried about her driving. (Tr. 23, 25) She could not open

jars or lift objects easily because of her right side paralysis. 

(Tr. 23, 25) She struggled to speak and her conversations were

peppered with frequent silence because she struggles to find the

words to use. (Tr. 23) Moran was hospitalized a few years before

the hearing with progressive dementia and her memory now was so

poor that her sons started administering her finances and came by

her house frequently to assist with chores, although Moran

continued to care for her dog. (Tr. 24) She recently had started

exhibiting involuntary movements, even slapping herself, but her

finances prevented any treatment. (Tr. 25-26)

Vocational Expert Dr. Leonard Fisher, Ph.D., was last to

testify. The ALJ asked the VE to name any appropriate jobs for

an individual of Moran’s age, education, and work experience, who

was limited to light work and occasional climbing of ladders,

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ropes, scaffolds, ramps, and stairs, balancing, stooping, crouching, kneeling, and crawling. The hypothetical individual also

was limited to occasional reaching overhead with the right arm

and occasional fingering using the right hand and could perform

only simple, routine, and repetitive tasks. (Tr. 27) The VE

replied that employment existed for such an individual as an

usher (2,200 positions), parking lot attendant (5,200 positions),

and school bus monitor (900 positions). In response to a query

from the ALJ, the VE stated that the named positions still would

be available even if the employee could not engage in complex or

frequent verbal communication. (Tr. 28)

The ALJ asked the VE whether his testimony was consistent

with the Dictionary of Occupational Titles (DOT). (Tr. 28) The

VE responded affirmatively, but he explained that the DOT does

not discuss limitations in the use of the right upper extremity. 

He based his response concerning the use of the arm on his

experience. (Tr. 28-29)

In his decision, the ALJ discussed the five-step sequential

evaluation process for determining whether an individual was

disabled. (Tr. 40-50) In step one, the ALJ found that Moran had

not engaged in substantial gainful activity since March 12, 2008,

her alleged onset date. (Tr. 41) At step two, the ALJ found that

Moran had the following severe impairments: residual complica9

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tions from stroke, adjustment disorder, and cognitive disorder. 

(Tr. 41) 

At step three, the ALJ found that Moran’s impairments did

not meet or medically equal one of the listed impairments. (Tr.

42) In particular, the ALJ determined that the residuals of

Moran’s stroke did not satisfy Listing 11.04 because there was no

evidence to show that she had sensory or motor aphasia resulting

in ineffective speech or communication, significant and persistent disorganization of motor function in two extremities,

resulting in sustained disturbance of gross and dexterous movements, or gait and station. (Tr. 42) 

The ALJ also determined that Moran’s impairments did not

meet or equal the criteria of Listings 12.02 or 12.04. (Tr. 42) 

The ALJ explained that Moran’s impairments did not satisfy the

Paragraph B criteria, which required a finding of at least two of

the following: a marked restriction of activities of daily

living; marked difficulties in maintaining social functioning;

marked difficulties in maintaining concentration, persistence, or

pace; or repeated episodes of decompensation, each of extended

duration. (Tr. 42) The ALJ determined that Moran had a mild

restriction in activities of daily living because she engaged in

such activities as cleaning, shopping, cooking, taking public

transportation, paying bills, maintaining a residence, caring for

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her hygiene, using telephones, and using a post office. (Tr. 42)

Moran could drive a car, go to the grocery store, and do simple

cooking and cleaning. Her typical day involved getting up at 8

or 9 A.M., making coffee, letting the dog out, making the bed,

taking a shower, vacuuming, doing laundry, and straightening up. 

(Tr. 42) 

The ALJ also found that Moran had mild limitations in social

functioning because she was able to interact independently, 

appropriately, effectively, and on a sustained basis with others. 

Moran reported that she got along well with those she interacted

with. (Tr. 43) The ALJ next explained that Moran had moderate

difficulties with concentration, persistence, and pace. Moran

had the ability to sustain focused attention and concentration

long enough to complete tasks. She was able to remember to let

out, feed, and give water to her dog. (Tr. 43) At a mental

status examination, Moran was able to recall what she had for

breakfast and dinner and who brought her to the appointment. She

also could recall four digits forward and three backwards. (Tr.

43) On short-term memory, she could recall three of six items

after ten minutes of lapsed time, and on arithmetic calculation,

she successfully completed 17 out of 20 items in 60 seconds time. 

She also completed serial subtractions in one minute and 30

seconds with two errors. (Tr. 43) The ALJ also recognized that

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Moran was in the extremely low range for auditory immediate

memory, visual immediate memory, and immediate memory on the

Wechsler Memory Scale III test and in the borderline range in the

areas of auditory delayed memory, visual delayed memory, general

memory, and working memory. (Tr. 43) The ALJ concluded by

stating that the record did not reflect that Moran experienced

repeated episodes of decompensation. Because she did not have at

least two marked limitations or one marked limitation and an

episode of decompensation, the ALJ found that Moran did not

satisfy the Paragraph B criteria. (Tr. 43)

At step four, the ALJ found that Moran had the residual

functional capacity to perform simple, routine, and repetitive

light work, which he defined as: frequently lifting and/or

carrying up to 10 pounds; occasionally lifting and/or carrying up

to 20 pounds; standing/walking, each for about six hours in an

eight hour workday; and sitting for at least six hours in an

eight hour workday; occasional climbing of ropes, ladders, or

scaffolds, ramps, and stairs; occasional balancing, stooping,

crouching, kneeling, and crawling; occasional reaching and

overhead reaching with the right upper extremity; occasional

fingering with the right upper extremity; and occupations that

did not require frequent verbal communication. (Tr. 44) In

reaching this conclusion, the ALJ summarized Moran’s medical

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evidence. (Tr. 45) Moran had right-sided weakness from her

stroke but had learned to adjust and use her left hand. Moran

testified that she used her right hand only to hold her purse and

that she had difficulty walking, sitting, standing, stair climbing, and bending. Scott Moran corroborated Moran’s complaints

and alleged that she was getting worse, but the ALJ determined

there was no objective medical evidence to support that. (Tr.

45) 

The ALJ next noted that the Disability Report and Reconsideration Disability Report did not list any difficulties observed

by the Social Security Administration employees. During Moran’s

interview at the field office, it was noted that the interviewer

observed difficulty with understanding, coherency, concentrating,

talking, answering, sitting, standing, walking, using her hands,

and writing. The ALJ also considered Moran’s appearance, observing that she did not require the use of an assistive device for

ambulating or brace on her right hand. (Tr. 45) 

The ALJ concluded that Moran’s allegations were not supported by the medical evidence. (Tr. 46) The consultative

examination noted deficits in right upper extremity muscle

strength and right grip, as well as slurred speech and a slightly

limping gait, but the examiner found her alert, oriented, ambulating without an assistive device, and in no acute distress. 

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The physician stated that he could understand her well and there

were no expressions of any weakness. (Tr. 46) 

At the June 16, 2008 consultative examination, Moran’s

extremities were symmetric. (Tr. 46) There was mild stiffness

with slight decreased range of motion of the right shoulder. 

Moran’s right-upper extremity was -4/+5, the right lower extremity was +4/+5, the left upper and lower left extremity was 5/5. 

Her right grip was weak -4/5 and the left was 5/5. She had

difficulty squatting and picking and gripping with her right

hand. At four examinations between 2008 and 2010, Moran stated

that she had no joint or muscle complaints. She also denied

symptoms associated with tinnitus, vertigo, heightened sensitivity to noise, ear pain or hearing loss. (Tr. 46) She had no loss

of balance, no decrease in her ability to concentrate, no episodes of dizziness, gait difficulties, headaches, loss of consciousness, loss of sensation, memory loss, complaints of muscle

weakness, seizures, speech difficulties, or complaints of tremor. 

From this, the ALJ concluded that there was no evidence to support Scott Moran’s testimony that Moran had involuntary movements

of her arms. None of the treating or examining sources indicated

that her impairments required that she take a nap. (Tr. 46)

Moran testified that her memory had become worse, but there

was no evidence of inpatient psychiatric hospitalization, sub14

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stance abuse, or history of mental illness in her biological

family. (Tr. 46) Moran testified that she was hospitalized for

dementia, her brother took over her finances, and that her doctor

told her that her symptoms would get worse because of the brain

damage she suffered. (Tr. 47) The ALJ disagreed with this,

stating that the allegations were not supported by the medical

evidence. (Tr. 47) Dr. Durak found that Moran was oriented in

all spheres, cooperative, and able to interact. Her speech

reflected an expressive language disorder and a communication

disorder and she gave delayed responses. Her memory was impaired, but her thought process and content were within normal

limits. (Tr. 47) Moran was diagnosed with adjustment disorder,

with depressed mood, cognitive disorder, and expressive language

disorder. Dr. Durak assessed a GAF score of 45, indicating

serious symptoms in one of the following: social, occupational,

or school functioning. However, reviews of psychiatric systems

performed on January 22, 2009, March 16, 2010, and March 24,

2010, essentially were normal. (Tr. 47) 

The ALJ gave great weight to the state consultative physicians’ opinions. Dr. Neville completed a Psychiatric Review

Technique Form in which he determined that Moran had mild limitations in activities of daily living and social functioning,

moderate limitations in concentration, persistence, or pace, and

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no episodes of decompensation. (Tr. 47) Dr. Neville also

completed a Mental Residual Capacity Assessment Form in which he

stated that Moran was moderately limited in her ability to understand and remember detailed instructions, carry out detailed

instructions, maintain attention and concentration for extended

periods, complete a normal work-day and work week without interruptions from psychologically based symptoms and to perform at a

consistent pace without an unreasonable number and length of rest

periods, and respond appropriately to changes in the work setting. (Tr. 48) Dr. Neville concluded that Moran had the ability

to carry out simple, repetitive tasks on a competitive basis. 

Dr. Larsen affirmed Dr. Neville’s conclusion. (Tr. 48)

Based on this evidence, the ALJ concluded that Moran experienced some limitations and restrictions from her impairments, but

the medical record in its entirety demonstrated that she had no

greater limitations in her ability to perform work related

activities than those reflected in the RFC. The evidence showed

that she had the intellectual capacity to make simple workrelated decisions, to remember locations, and to remember simple

work-like procedures. (Tr. 48) She was able to maintain an

ordinary daily routine without supervision, and could cook,

clean, and shop. (Tr. 49) The ALJ accounted for her speech by 

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limiting Moran to occupations that did not require frequent

verbal communication. (Tr. 49) 

With the RFC determined, at step four the ALJ found that

Moran did not have any past relevant work. (Tr. 49) After

considering Moran’s age, education, work experience, and RFC, the

ALJ determined that there were significant jobs available in the

national economy that she could perform, including usher (2,200

positions), parking lot attendant (5,200 positions), and school

bus monitor (900 positions). 

Discussion

The standard for judicial review of an ALJ’s finding that a

claimant is not disabled within the meaning of the Social Security Act is limited to a determination of whether those findings

are supported by substantial evidence. 42 U.S.C. §405(g) ("The

findings of the Commissioner of Social Security, as to any fact,

if supported by substantial evidence, shall be conclusive.");

Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012); Schmidt v.

Barnhart, 395 F.3d 737, 744 (7th Cir. 2005); Lopez ex rel Lopez

v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). Substantial

evidence has been defined as "such relevant evidence as a reasonable mind might accept to support such a conclusion." Richardson

v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d

852 (1972)(quoting Consolidated Edison Company v. NLRB, 305 U.S.

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197, 229, 59 S.Ct. 206, 217, 83 L.Ed.2d 140 (1938)). See also

Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012); Jens v.

Barnhart, 347 F.3d 209, 212 (7th Cir. 2003); Sims v. Barnhart,

309 F.3d 424, 428 (7th Cir. 2002). An ALJ’s decision must be

affirmed if the findings are supported by substantial evidence

and if there have been no errors of law. Rice v. Barnhart, 384

F.3d 363, 368-69 (7th Cir. 2004); Scott v. Barnhart, 297 F.3d

589, 593 (7th Cir. 2002). However, "the decision cannot stand if

it lacks evidentiary support or an adequate discussion of the

issues." Lopez, 336 F.3d at 539.

Disability insurance benefits are available only to those

individuals who can establish "disability" under the terms of the

Social Security Act. The claimant must show that she is unable

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)

The Social Security regulations enumerate the five-step sequential evaluation to be followed when determining whether a claimant has met the burden of establishing disability. 20 C.F.R. 

§404.1520. The ALJ first considers whether the claimant is

presently employed or "engaged in substantial gainful activity."

20 C.F.R. §404.1520(b). If she is, the claimant is not disabled

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and the evaluation process is over; if she is not, the ALJ next

addresses whether the claimant has a severe impairment or combination of impairments which "significantly limits . . . physical

or mental ability to do basic work activities." 20 C.F.R. 

§404.1520(c). Third, the ALJ determines whether that severe

impairment meets any of the impairments listed in the regulations. 20 C.F.R. §401, pt. 404, subpt. P, app. 1. If it does,

then the impairment is acknowledged by the Commissioner to be

conclusively disabling. 

However, if the impairment does not so limit the claimant's

remaining capabilities, the ALJ reviews the claimant's "residual

functional capacity" (RFC) and the physical and mental demands of

her past work. If, at this fourth step, the claimant can perform

her past relevant work, she will be found not disabled. 20

C.F.R. §404.1520(e). However, if the claimant shows that her

impairment is so severe that she is unable to engage in her past

relevant work, then the burden of proof shifts to the Commissioner to establish that the claimant, in light of her age,

education, job experience and functional capacity to work, is

capable of performing other work and that such work exists in the

national economy. 42 U.S.C. §423(d)(2); 20 C.F.R. §404.1520(f).

Moran argues that the ALJ "cherry-picked" the evidence and

disregarded a substantial amount of evidence that was favorable

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to support a finding that she was disabled. Specifically, Moran

argues that the ALJ relied on her daily activities although they

are not comparable to a work setting, the ALJ parsed through the

medical evidence and ignored her GAF score, and the ALJ erroneously relied on the medical opinions of the consultative physicians who never examined her. 

SSR 96-8p explains how an ALJ should assess a claimant’s RFC

at steps four and five of the sequential evaluation. In a

section entitled, "Narrative Discussion Requirements," SSR 96-8p

specifically spells out what is needed in the ALJ’s RFC analysis.

This section of the Ruling provides:

The RFC assessment must include a narrative

discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and

nonmedical evidence (e.g., daily activities,

observations). In assessing RFC, the adjudicator must discuss the individual’s ability

to perform sustained work activities in an

ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5

days a week, or an equivalent work schedule),

and describe the maximum amount of each workrelated activity the individual can perform

based on the evidence available in the case

record. The adjudicator must also explain how

any material inconsistencies or ambiguities

in the evidence in the case record were considered and resolved. (footnote omitted)

SSR 96-8p 

Thus, as explained in this section of the Ruling, there is a

difference between what the ALJ must contemplate and what he must

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articulate in his written decision. See Morphew v. Apfel, 2000

WL 682661, *3 (S.D. Ind. 2002) ("There is a distinction here [in

SSR 96-8p] between what the ALJ must consider and what the ALJ

must articulate in the written opinion."); Lawson v. Apfel, 2000

WL 683256, *2-4 (S.D. Ind. May 25, 2000) (ALJ who restricted the

claimant to medium work satisfied the requirements of SSR 96-

8p)("[SSR 96-8p] does not require an ALJ to discuss all of a

claimant’s abilities on a function-by-function basis. Rather, an

ALJ must explain how the evidence supports his or her conclusions

about the claimant's limitations and must discuss the claimant's

ability to perform sustained work activities."). The ALJ is

required to "consider the aggregate effect of this entire constellation of ailments — including those impairments that in

isolation are not severe." Golembiewski v. Barnhart, 322 F.3d

912, 918 (7th Cir. 2003). The ALJ cannot ignore entire lines of

evidence or cherry pick the evidence that is favorable to a

finding of non-disability. Golembiewski, 322 F.3d at 917. 

Rather, the ALJ must weigh all impairments and consider the

effect these ailments have on the claimant's ability to function

in their entirety. 

The notes to SSR 96-8p explain that the "RFC is the individual's maximum remaining ability to do sustained work activities

in an ordinary work setting on a regular and continuing basis,

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and the RFC assessment must include a discussion of the individual's abilities on that basis." When making this determination,

the ALJ may consider the claimant’s daily activities. If the ALJ

places significant weight on a claimant’s daily activities to

support a finding that the claimant can sustain employment, the

activities must reflect that the person is capable of engaging in

work eight hours a day for five consecutive days a week. Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004). To show

this, the record should reflect that the claimant engages in such

activities for a substantial part of the day. Evidence of

sporadic physical activity is not sufficient because a claimant

may engage in sporadic activities despite pain, but may not be

able to engage in continuous activity for an eight-hour workday. 

Moreover, the activities must be transferable to a work setting. 

The ALJ must make a clear record that the claimant’s activities

are such that the claimant could perform duties common to the

work place on a sustained basis. Carradine, 360 F.3d at 756. 

In Carradine, the claimant testified that she could drive,

shop, and do housework. The ALJ relied on this when determining

that the claimant was capable of working. Carradine, 360 F.3d at

756. On appeal, the Seventh Circuit explained that although the

claimant could perform these activities, the claimant performed

the reported activities on a sporadic basis, and the record was

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not clear whether these skills were related to a work setting or

whether the claimant could sustain activity on a continuous basis

during an eight-hour work day. The Seventh Circuit remanded for

further explanation of how the claimant’s reported daily activities were consistent with a finding that she could engage in work

eight hours a day, five days a week. Carradine, 360 F.3d at 756. 

Moran argues that her daily activities do not support the

ALJ’s finding that she was capable of gainful employment. 

Specifically, she argues that her activities were not related to

a work setting, her activities were performed on a sporadic basis

and were necessary to survive, and the ALJ failed to consider how

limited she was at performing these activities. The Commissioner

disputes Moran’s position, arguing that the activities Moran

performed were not necessary to survival, the ALJ considered her

activities as a whole, and the ALJ acknowledged that Moran

completed these activities at a slower than average pace. 

The Commissioner has pointed to several cases in support of

his argument. In these cases, significant facts beyond the

claimant’s activities supported the ALJ’s decision to disregard

the claimant’s testimony concerning her capabilities. In one

case, the record reflected that the claimant had a history of

falsifying information. Prochaska v. Barnhart, 454 F.3d 731, 738

(7th Cir. 2006) (finding the claimant not credible because she

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previously falsified information to obtain unemployment benefits). In another, the claimant testified that she was disabled,

yet the record reflected that she applied for jobs after the

alleged onset date. Castile v. Astrue, 617 F.3d 923, 930 (7th

Cir. 2010). And in the third, the claimant’s testimony at the

hearing addressing her daily activities directly conflicted with

her account of daily activities as given at an earlier interview. 

Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000). In each

case, there was information to show that the claimant’s testimony

likely was falsified or inconsistent with the daily activities

she reported at the hearing. Here, that is not the case. 

Moran testified about the activities she performed, which

included cooking, driving, completing household chores such as

making her bed, making coffee, bathing, letting her dog out,

visiting with family and friends, going out to eat, and attending

church services. However, she informed the ALJ that it took her

significantly longer to perform the activities. The activities

were performed in Moran’s own home and at her own pace, and Moran

could structure her day around her physical limitations. Although Moran performed a variety of activities, there was no

indication that she did all of these activities every day or that

she was capable of performing them in a continuous manner. The

Commissioner argues that the fact that she lived alone and had to

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perform many of these activities to survive is irrelevant, however, the court disagrees. Many of the tasks she performed were

essential to daily living and were tasks she might have done in

spite of pain in order to survive. 

The ALJ has not explained how Moran’s daily activities would

translate into completing tasks on a continuous basis during an

eight-hour work day. The record reflects that Moran had significant difficulties with her memory. She was in the extremely low

range in areas of auditory immediate memory, visual immediate

memory, and immediate memory. It is not clear how remembering to

let her dog out, completing household chores, and maintaining

general hygiene demonstrated that she had the capabilities to

remember assignments. The record also reflects that her capabilities were decreasing. Moran’s son testified that he was taking

over performing chores for her, he recently began maintaining her

finances, and he was worried about her driving. The ALJ failed

to explain not only how these activities suggest that Moran could

engage in activity for a continuous period, but also how the

activities she performed translated into skills required to

maintain employment. Sporadic skills necessary for survival may

not translate into skills useful during employment. This matter

is REMANDED to the ALJ for further clarification on how Moran’s

activities were transferable to a work setting and how her

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case 2:12-cv-00028-APR document 26 filed 01/30/13 page 25 of 39
activities were consistent with a finding that she could engage

in continuous activity for eight-hours a day, five days a week.

The parties next dispute whether the ALJ provided an adequate explanation for dismissing the GAF score Dr. Durak assigned. The GAF scale measures a "clinician's judgment of the

individual's overall level of functioning." Am. Psychiatric

Ass'n, Diagnosis and Statistical Manual of Mental Disorders,

Fourth Edition, Text Revision, 32, 34 (2000) (DSM IV–TR). The

established procedures require a mental health professional to

assess an individual's current level of symptom severity and

current level of functioning, and adopt the lower of the two

scores as the final score. Id. at 32–33. A GAF score ranging from

41–50 indicates serious symptoms; scores ranging from 51–60

indicate moderate symptoms; and scores ranging from 61–70 indicate mild symptoms. Id. GAF scores are "useful for planning

treatment" and are measures of both severity of symptoms and

functional level. Id. At 32-34. Because the "final GAF rating

always reflects the worse of the two," the score does not reflect

the clinician's opinion of functional capacity. "[N]owhere do the

Social Security regulations or case law require an ALJ to determine the extent of an individual's disability based entirely on

his GAF score." Wilkins v. Barnhart, 69 Fed.Appx. 775, 780 (7th

Cir. 2003) (citing Howard v. Comm'r of Soc. Sec., 276 F.3d 235,

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case 2:12-cv-00028-APR document 26 filed 01/30/13 page 26 of 39
241 (6th Cir. 2002)). However, the GAF score may assist in

formulating the claimant’s RFC. Adams v. Astrue, 2009 WL

1404675, *4 (N.D. Ind. May 18, 2009). 

The ALJ was not required to cite or discuss a claimant’s GAF

score in his opinion. See Boone v. Astrue, 2010 WL 2943637, *7

(N.D. Ind. July 22, 2010). This is because the ALJ need not

address every piece of evidence in his analysis. However, this

must be weighed against the ALJ’s duty to provide some minimal

explanation of his reasoning and to support his opinion with

substantial evidence. Boone, 2010 WL 2943637 at *7. It is not

entirely clear that the ALJ satisfied that duty here. In addition to dismissing the GAF score, the ALJ also decided to disregard Dr. Durak’s opinion in its entirety. In doing so, the ALJ

stated that "reviews of psychiatric systems at the time of

routine exams were essentially normal." Two of the reviews the

ALJ pointed to made no mention of concentration or memory, the

two areas where Dr. Durak found that Moran struggled the most. 

Although the third report stated that Moran had no decreased

ability to concentrate or memory loss, this did not equate to

saying her memory was intact in all areas or that her concentration was at a level sustainable for employment. It does not

appear that the reviews in fact contradict Dr. Durak’s opinion. 

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The ALJ went on to explain that he adopted the opinions of

the non-examining consultative physicians over that of the

consultative examining physicians, including Dr. Durak, and

Moran’s treating doctors. A treating source's opinion is entitled to controlling weight if the "opinion on the issue(s) of the

nature and severity of [the claimant's] impairment(s) is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record. 20 C.F.R. §404.1527(d)(2). See

also SSR 96-2p (same); Schmidt v. Astrue, 496 F.3d 833, 842 (7th

Cir. 2007)(same); Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir.

2003)(same). A physician who merely reviews a claimant’s file

without personal observation of the claimant deserves little

weight in the evaluation of disability. Anderson v. Heckler, 602

F.Supp. 46, 50 (N.D. Ill. 1985) (citing Whitney v. Schweiker, 695

F.2d 784, 789 (7th Cir. 1982)). Inconsistencies in a treating

physician’s opinion, whether conflicting internally or with other

substantial evidence in the record, may justify denying the

opinion controlling weight. 20 C.F.R. §404.1527(c)(2); Clifford

v. Apfel, 227 F.3d 863, 871 (7th Cir. 2000). See, e.g., Schmidt,

496 F.3d at 842 ("An ALJ thus may discount a treating physician’s

medical opinion if the opinion is inconsistent with the opinion

of a consulting physician or when the treating physician’s

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case 2:12-cv-00028-APR document 26 filed 01/30/13 page 28 of 39
opinion is internally inconsistent, as long as he minimally

articulates his reasons for re-editing or rejecting evidence of

disability."); Latkowski v. Barnhart, 93 Fed. Appx. 963, 969 (7th

Cir. 2004)(same). The ALJ also may disregard a treating physician’s opinion if there is evidence that he was "leaning over

backwards" to help the claimant receive benefits. Cummins v.

Schweiker, 670 F.2d 81, 84 (7th Cir. 1982). However, "a consulting physician cannot supply substantial evidence just by contradicting reports about the underlying facts or offering unfounded

speculation . . . when the consulting physician adds new information or perspectives, that may be substantial evidence." Russell

v. Sullivan, 1990 WL 610874, *8 (N.D. Ind. Jan. 23, 1990) (citing

Garrison v. Heckler, 765 F.2d 713 (7th Cir. 1985)).

The ALJ based his opinion on the assessment reports of Dr.

Lavallo and Dr. Neville. Both physicians were non-examining

consultative physicians. They reviewed the medical records and

provided their opinions of Moran’s RFC. In adopting their

opinions, the ALJ rejected the opinion of Dr. Durak, the state

agency mental health specialist who examined Moran on one occasion and reported his assessment of her RFC. Because the ALJ was

required to give greater weight to the opinions of physicians who

examined the claimant, the court must consider whether Dr.

Durak’s opinion and the medical records from Moran’s treating

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physicians were not well-supported by medically acceptable

clinical and laboratory diagnostic techniques or were inconsistent with the other substantial evidence, and whether the consultative physicians’ conclusions were supported by substantial

evidence and not based on speculation.

Dr. Durak examined Moran, rendering his opinion entitled to

greater weight than that of Dr. Lavallo and Dr. Neville. Upon

examination, Dr. Durak found that Moran had a language disorder

and gave delayed responses. Her concentration and memory were

impaired, and when Dr. Durak administered the Wechsler Memory

Scale-III, Moran scored in the extremely low category. This was

consistent with the observations of the interviewer at the Social

Security Administration. He described Moran as slow in understanding, answering, and remembering details. (Tr. 128) The

record was littered with notes that Moran experienced memory loss

and forgetfulness. (Tr. 13, 20, 23-35, 147, 229, 276, 309) In

light of the test that Dr. Durak administered and the numerous

portions of the record referring to Moran’s concentration and

memory problems, it appears that Dr. Durak’s opinion was supported by substantial evidence. Although the ALJ stated that

later psychiatric reviews showed that Moran’s condition was normal, as explained above, this was not an accurate depiction of

what these reviews stated. There was no evidence that the test

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he administered was not reliable or that his findings were inconsistent with other tests or observations. Moreover, because Dr.

Durak was a state consultative examining physician, the risk that

he would "bend over backwards" to help Moran obtain benefits was

reduced. 

The ALJ did not point to one piece of objective medical

evidence to support his decision. Rather, he exclusively relied

on the opinions of the consultative physicians who did not

examine Moran. Neither non-examining physician was a mental

health specialist as was Dr. Durak. Rather, one was a gynecologist and the other an internist. Dr. Lavallo merely filled out a

check box form and offered no explanation to support his opinions. It is not clear what medical records Dr. Lavallo based his

opinion on, and the ALJ offered no subsequent explanation. Dr.

Neville provided some explanation, stating that Moran’s functioning appeared better than her WMS-III scores would suggest. He

dismissed her WMS-III scores and Dr. Durak’s conclusion regarding

her memory and concentration deficits by explaining that Moran

was able to perform certain daily activities, including cooking

simple foods, cleaning, doing laundry, shopping, and driving. 

However, his opinion was not based on any tests or examinations. 

Rather, he based his conclusion solely on the activities Moran

reported throughout the record, without any inquiry into whether

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Moran performed these activities on a sustained basis or any

explanation of the pace at which they were performed. Dr.

Neville did not explain why he felt that the ability to do

certain activities, many of which were necessary and may have

been done in spite of pain, was consistent with his finding that

Moran had the memory and concentration to sustain gainful employment. Without examining Moran or pointing to one test or personal examination, it appears that Dr. Neville’s opinion was

based on speculation of the tasks and pace at which Moran could

perform. 

Moreover, there are inconsistencies within Dr. Neville’s

conclusion. For example, Dr. Neville’s report stated that Moran

was limited in her ability to respond appropriately to changes in

the workplace, but then stated she was able to adapt to workplace

changes. (Tr. 250) He also found that her pace was within normal

limits, and then later stated that her pace was slowed and in the

psychiatric review, he found that she had problems "maintaining

concentration, persistence, or pace." (Tr. 250, 269) The ALJ did

not address these inconsistencies within Dr. Neville’s own

opinions. Dr. Neville drew conclusions, such that Moran could

maintain a schedule and engage in tasks for extended periods. 

However, neither Dr. Neville nor the ALJ provided an explanation

or pointed to any tests or examinations to support this conclu32

case 2:12-cv-00028-APR document 26 filed 01/30/13 page 32 of 39
sion. This conclusion appears contradictory to Moran’s reports

of her ability and the available medical records. It is not

clear how Dr. Neville could review the records, none of which

were consistent with his conclusion, and reach the determination

that he did. Additionally, Moran and her son testified that her

condition was worsening. The ALJ dismissed this on the basis of

insufficient medical records, but he did not consider the reasons

why the record may have been devoid or corroborating evidence. 

Crawford v. Astrue, 633 F.Supp.2d 618, 632 (N.D. Ill. 2009) (explaining that the ALJ must consider the claimant’s reasons for

failing to seek treatment). Scott Moran testified that Moran’s

condition was increasing in severity, but she did not have the

funds to seek additional treatment. For these reasons, this

matter is REMANDED to the ALJ to provide greater support for

rejecting the opinions of the examining physicians and for 

greater explanation of the inconsistencies within the non-examining physicians’ reports. 

Moran next argues that the ALJ failed to investigate how the

VE determined the positions Moran was capable of performing. The

VE testified that the positions he identified were consistent

with the DOT, except that the DOT did not address limitations

with overhead reaching with the right upper extremity. The VE

chose the available positions based on his experience to accommo33

case 2:12-cv-00028-APR document 26 filed 01/30/13 page 33 of 39
date Moran’s additional limitation. Moran argues that the ALJ

should have questioned how the VE’s experience led him to conclude that Moran could perform the positions he identified. 

However, the record is clear that the ALJ fulfilled his duty. 

The ALJ is responsible for investigating and resolving any

apparent conflicts between the VE’s testimony and the DOT. SSR

00-49; Weatherbee v. Astrue, 649 F.3d 565, 570 (7th Cir. 2011). 

Provided there is no apparent conflict between the VE’s testimony

and the DOT, the ALJ may rely on the VE’s confirmation that the

testimony is consistent with the DOT. Weatherbee, 649 F.3d at

570. The ALJ also is free to accept the VE’s testimony when it

conflicts with or exceeds the specifications provided in the DOT. 

See Eaglebarger v. Astrue, 2012 WL 602022 (citing Overman v.

Astrue, 546 F.3d 456, 464 (7th Cir. 2008) ("An ALJ is free to

accept testimony from a VE that conflicts with the DOT when, for

example, the VE's experience and knowledge in a given situation

exceeds that of the DOT's authors . . . .")). Experience,

knowledge, education, and training are all sufficient basis on

which the ALJ may adopt the VE’s opinion that conflicts with or

exceeds the purviews of the DOT. Eaglebarger, 2012 WL 602022 at

*8. The ALJ satisfies his duty when he questions whether the

VE’s answer is consistent with the DOT and receives an affirmative answer, even if the VE’s response partially is based on his

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case 2:12-cv-00028-APR document 26 filed 01/30/13 page 34 of 39
experience, provided there are no apparent inconsistencies that

the ALJ must further resolve. The claimant then has an affirmative duty either to identify any inconsistencies or to question

the VE’s experience. If the claimant does not question the VE

about the foundation of his opinion, she forfeits the right to

challenge it on appeal. Eaglebarger, 2012 WL 602022 at *8 (citing Barrett v. Barnhart, 355 F.3d 1065, 1067 (7th Cir. 2004)). 

Here, the ALJ satisfied his duty by questioning whether the

VE’s testimony was consistent with the DOT, and receiving an

affirmative response. The ALJ elicited testimony from the VE

concerning the limitations that were not addressed by the DOT and

was permitted to rely on the VE’s personal experience for positions that would accommodate Moran’s limitations using her right

upper extremity. Moran did not question the basis of the VE’s

testimony at the hearing and has forfeited her right to do so on

appeal. Nor has Moran pointed to any inconsistencies so apparent

that would have triggered the ALJ’s duty to delve further into

the basis of the VE’s testimony. See Terry v. Astrue, 580 F.3d

471, 478 (7th Cir. 2009)(explaining that it is harmless error and

remand would be futile when no conflict exists between the VE’s

testimony and the DOT.) For these reasons, the court finds that

the ALJ fulfilled his duty to develop the record on this issue.

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Moran however, did identify other testimony that she believed conflicted with the DOT. First, Moran argues that the

usher position did not allow for sitting two hours in an eight

hour work day, as it required constant standing to hand out

programs and direct people to their seats, and required frequent

talking. Moran also contests that the parking lot attendant

position requires frequent reaching, handling, and fingering,

which was inconsistent with the ALJ’s determination that Moran

should be limited to only occasional reaching overhead with the

right arm and occasional fingering using the right hand. Finally, Moran argues that the school bus monitor position required

talking, interacting with people, and visual abilities beyond

Moran’s capabilities. 

The Commissioner disputes these inconsistencies. The DOT

description for the usher position did not indicate that the

position required constant standing and walking, and even if it

included such a requirement, the ALJ determined that Moran was

capable of standing six hours during an eight hour work day,

which is consistent with the DOT’s definition of constant. 

Moreover, the ALJ limited Moran to no complex frequent verbal

communication. The DOT description of the usher position stated

that the position required simple writing and speaking. Because

the ALJ limited Moran only from frequent complex communications,

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Moran was capable of engaging in simple verbal communication. 

For these reasons, there was no apparent conflict between the

usher position and Moran’s RFC.

Moran also has challenged whether the school bus monitor

position was inconsistent with the RFC because it required

talking, interacting with people, and visual abilities beyond her

capabilities. Again, there was no inconsistency between the DOT

description and her RFC. The school bus monitor position did not

require complex verbal communication, and the ALJ did not find

that Moran had any visual limitations or limitations interacting

with others. 

The Commissioner does not dispute that there are inconsistencies between the parking lot attendant position and Moran’s

RFC. Instead, he argues that any inconsistencies would be

harmless error because the usher and school bus monitor positions

have not been eliminated and that the ALJ fulfilled his duty

because he asked the VE whether the positions were consistent

with the DOT. The Commissioner is correct that the ALJ fulfilled

his duty by questioning whether the positions were consistent

with the DOT. The ALJ was permitted to rely on the VE’s confirmation unless the conflict was apparent. Moran has not demonstrated that the conflict was apparent, nor did Moran’s attorney

question the VE about the conflict at the hearing. See Eagle37

case 2:12-cv-00028-APR document 26 filed 01/30/13 page 37 of 39
barger, 2012 WL 602022 at *7 (explaining that the ALJ can rely on

the VE’s confirmation that his testimony is consistent with the

DOT, and the claimant forfeits the right to challenge this on

appeal if she does not question the VE about any non-apparent

conflict). 

Regardless, the court has not found any inconsistencies

between the VE’s testimony and the DOT with regard to the usher

and school bus monitor positions. Because sufficient positions

were available in the economy that Moran was capable of performing based on the RFC as originally assessed, even if the parking

lot attendant positions were inconsistent, this would be harmless

error. However, the court has instructed the ALJ to reconsider

his RFC finding, specifically Moran’s limitations with memory and

speech. If, after reconsidering the evidence the ALJ re-defines

Moran’s RFC, he will need to revisit the VE’s testimony and

determine what positions someone with Moran’s limitations is

capable of fulfilling. 

Moran finally complains that the ALJ ignored the VE’s

testimony that the school bus monitor positions would be eliminated if the claimant often fell, the parking lot attendant

position would be eliminated if the claimant had memory loss and

forgetfulness, and the parking lot attendant and usher positions

would be eliminated if the claimant struggled with speech. 

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However, the VE did not find that Moran suffered from these

ailments, and therefore, was not required to rely on the VE’s

testimony that was inconsistent with the stated RFC. Moran’s

argument is more accurately resolved as a challenge to the RFC. 

The court already has instructed the ALJ to reconsider the RFC,

specifically the records concerning Moran’s memory and speech. 

In doing so, if the ALJ concludes that Moran’s memory and speech

were more limiting than originally believed, the ALJ will need to

readdress the part of the VE’s testimony to determine whether

someone with Moran’s limitations can perform the positions

identified by the VE. 

_______________

Based on the foregoing reasons, the petition for judicial

review of the decision of the Commissioner of Social Security 

filed by Margaret A. Moran on January 18, 2012, is GRANTED, and

this case is REMANDED. 

ENTERED this 30th day of January, 2013

s/ ANDREW P. RODOVICH

 United States Magistrate Judge

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