UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

Jaime M. Keller, 

 

 Plaintiff, 

 v. Case No. 3:13-CV-494-JVB-CAN 

Carolyn W. Colvin, 

Acting Commissioner of 

Social Security Administration, 

 

 Defendant. 

OPINION AND ORDER 

Plaintiff Jaime Keller seeks judicial review of the final decision of Defendant Carolyn W. 

Colvin, Acting Commissioner of Social Security, denying her applications for Disability 

Insurance Benefits and Period of Disability under the Social Security Act. Keller suffered a 

shoulder injury that by itself was not “disabling” as defined in the Social Security Act. She 

alleges that the combination of all of her physical and mental impairments should have led the 

ALJ to find her disabled. The Court does not find that Plaintiff must be entitled to disability 

benefits, but finds that the ALJ erred in evaluating the extent of Plaintiff’s mental impairments as 

of her date last insured. This error cannot be called “harmless” and therefore requires remand to 

the Agency. 

 

A. Procedural Background 

Keller applied for disability benefits on March 22, 2010, alleging disability beginning on 

April 4, 2008. (R. 280.) Her application was denied initially on July 6, 2010, and again upon 
2 

reconsideration on September 24, 2010. (R. 154–57; 163–66.) Her request for an administrative 

hearing was granted, and she attended two hearings before Administrative Law Judge (“ALJ”) 

Dennis R. Kramer. (R. 36; 78.) The first hearing took place on June 22, 2011, and a 

supplemental hearing took place on January 11, 2012, after state agency consultants examined 

Keller in July 2011. (R. 36, 78.) ALJ Kramer issued an unfavorable decision, and Keller’s 

request for Appeals Council review was denied, rendering ALJ Kramer’s decision the final 

agency action. (R. 1–6, 16, 20–30.) 

B. Factual Background 

(1) Keller’s Background and Testimony

 Keller was born on May 27, 1977; she was thirty years old at the time of her alleged 

onset of disability, and thirty-four when the ALJ issued his decision. She has a high school 

education. (R. 83.) She stands five feet, seven inches tall, and at the first hearing she testified that 

she weighed 247 pounds but that her normal weight before her injury was 200 pounds. (R. 83.) 

 She testified that she worked previously as a hostess, waitress, head waitress, food 

supervisor, home health aide, and receptionist. (R. 86–92.) She stopped working in April 2008 

when she injured her shoulder at work while setting down a heavy tray full of plates. (R. 85.) 

 At the first hearing, Keller testified primarily about her shoulder injury and resulting 

limitations. There were no questions from the ALJ or Keller’s attorney about mental limitations, 

and there was no testimony from Keller regarding any mental impairment. Plaintiff was 

examined by a state agency psychological consultant the month after this hearing, and he 

diagnosed her with bi-polar disorder, obsessive-compulsive disorder (“OCD”), and posttraumatic stress disorder (“PTSD”), among other conditions. 
3 

 At the second hearing, Plaintiff’s attorney stated that she had evidence of mental 

limitations dating back to 2006, and that the inconsistent mental health treatment was due to her 

inability to pay. (R. 41.) Plaintiff testified that she did not get treatment for mental conditions 

because she had no insurance and she did not realize that there were serious problems. (R. 42.) 

She also testified that she had lost her job at a hotel for getting “into it” with the chef, had trouble 

interacting with people, and had trouble taking orders from supervisors. (R. 49.) 

(2) Medical Evidence

 On March 27, 2006, Keller saw Guy Merz, M.D., for right shoulder and hand pain, 

numbness in her left fingers, and tightness in her upper back. (R. 651.) She also suffered from 

back spasms that, along with the pain, caused her stress. (R. 615.) 

 In July 2006, Keller saw Sondra Wilkinson, M.C., at Empact for a behavioral health 

evaluation. (R. 612–34.) Keller indicated that she had experienced dizziness, headaches, and 

problems sleeping. (R. 616.) She reported bad mood swings and getting angry over little things, 

and that it had been an issue for about a year. (R. 618.) She attributed her condition to stress and 

family issues. (R. 618.) The mental status examination revealed Keller had a slightly irritable 

mood, blunted affect, realistic self-concept, normal thought process and content, average 

estimated intelligence, partial judgment and impulse control, and good insight. (R 623.) 

Wilkinson diagnosed Keller with a moderate episode of Major Depressive Disorder. (R. 624.) 

Psychosocial and environmental stressors included marital problems and limited access to health 

care. (R. 626.) Keller received a Global Assessment of Functioning (“GAF”) Score of 51, 

indicating she had moderate symptoms of impaired functioning. (R. 626.) 
4 

 On August 8, 2006, Keller had an initial counseling session with Joy Dugard at Empact. 

(R. 631.) She discussed physical and emotional trauma she had experienced in her life and stated 

that she had mood swings often and they affected her relationship with her fiancé and with coworkers. (R. 632.) A week later, Keller had an EMDR session with Dugard and at the end of the 

session she had a much lower level of distress and disturbance related to her history of trauma 

and anger.1 (R. 633.) In September 2006, Keller reported feeling stressed because she had lost 

her insurance coverage. (R. 633–34.) Then in October 2006, she informed Dugard that she 

planned on moving back in with her father, and declined further Empact services. (R. 634.) On 

November 29, 2006, Keller told an Empact employee that she was no longer covered by 

insurance and canceled an upcoming appointment. (R. 634, 627.) 

 On September 22, 2006, Michael Wilmink, M.D., performed an arthroscopy and 

subacromial decompression bursectomy on Keller’s right shoulder. (R. 680.) On September 26, 

2006, Kelli Coleman, a registered occupational therapist, prescribed Keller a home strengthening 

program because she lost insurance coverage and could not afford to pay for physical therapy. 

(R. 677–79.) On October 3, 2006, Dr. Wilmink cleared Keller to return to work by October 16, 

2006. (R. 676.) 

 A year and a half later, on April 16, 2008, Keller saw Tom A. Karnezis, M.D., for an 

initial appointment. (R. 443.) She reported that she injured her left shoulder at work on April 4, 

and Dr. Karnezis noted that x-rays were within normal limits but that an MRI showed evidence 

of left shoulder impingement and a partially torn rotator cuff. (R. 443.) Keller saw Dr. Karnezis 

three more times before undergoing surgery on her left shoulder on May 27, 2008. (R. 442, 440, 

 

1

 “EMDR” is eye movement desensitization and reprocessing therapy. See Captain Evan R. Seamone, 

Attorneys as First-Responders: Recognizing the Destructive nature of PostTraumatic Stress Disorder on the 

Combat Veteran’s Legal Decision-Making Process, 202 Mil. L. Rev. 144, 175 (2009) (“EMDR Therapy is an eightphase treatment which combines visualization techniques with optical stimulation. Based on the recognition that 

PTSD affects the two hemispheres of the brain.”). 
5 

436, 433–35.) Dr. Karnezis performed a left shoulder arthroscopic debridement with anterior and 

superior labral repair, and a partially torn rotator cuff repair. (R. 433–35.) The surgery provided 

some initial relief, but Keller continued to have pain in her scapulothoracic (shoulder blade) area 

and crepitus in her shoulder. (R. 428.) 

 An x-ray taken July 30, 2008, was within normal limits and the x-ray showed good 

subacromial decompression. (R. 426.) Keller went to physical therapy and had mixed results, but 

she continued to experience shoulder pain and crepitus. (R. 419–25.) On October 22, 2008, Dr. 

Karnezis opined that the crepitus could have resulted from a fiber wire stitch used in the May 27, 

2008, surgery. (R. 417.) 

 On October 30, 2008, Keller had a second round of surgeries on her left shoulder. (R. 

415–16.) The surgeries included: glenohumeral arthroscopic debridement with removal of Fiber 

Wires, and arthroscopic subacromial bursectomy and debridement with removal of multiple 

Fiber Wires. (R. 415.) Two weeks post-surgery, Dr. Karnezis reported that she had a full range 

of motion in her left shoulder, she was neurologically intact, but had scapulothoracic crepitus. 

(R. 413.) X-rays taken on December 10, 2008, were within normal limits, and Dr. Karnezis 

prescribed three-to-four physical therapy sessions every two weeks, with a one-pound weight 

restriction on the left arm to be increased over the next three weeks. (R. 411.) 

 Almost three years later, on July 20, 2011, John Heroldt, Ed.D, a state agency consultant, 

gave Keller a psychological examination. (R. 573.) Dr. Heroldt found that Keller had marked 

restrictions in her ability to interact appropriately with the public, with supervisors, and with 

coworkers, and a marked restriction in the ability to respond appropriately to usual work 

situations and changes in the routine work setting. (R. 574.) She reported several of the same 

traumatic experiences to Dr. Heroldt that she had discussed in 2006 at Empact. (R. 577.) 
6 

Dr. Heroldt diagnosed Keller with bipolar I disorder; PTSD; OCD; borderline intellectual 

functioning; personality disorder; educational and occupational problems; and a GAF score of 

forty-eight, indicating impaired reality testing and major symptoms of impaired functioning in 

several areas. (R. 580.) 

(3) Medical Expert’s Testimony

James McKenna, M.D., testified as a medical expert at both ALJ hearings. (R. 38, 80.) 

Dr. McKenna specializes in pulmonary disease and internal medicine. (R. 238.) At the first 

hearing, Dr. McKenna stated that Keller’s “extreme complaints” had no basis in the record and 

were “markedly out of proportion” with the objective medical evidence in the file. (R. 122.) Dr. 

McKenna opined that dropping a tray like Keller had on April 4, 2008, was a minor mechanism 

of injury, and that the resulting shoulder impingement should have been addressed by the first 

shoulder surgery. (R. 123.) When prompted by Keller to discuss evidence of her spinal tether, 

Dr. McKenna stated that the spinal tether was objective evidence supporting her complaints and 

would equal Listing 1.04. (R. 133.) However, Dr. McKenna qualified that the spinal tether did 

not equal the Listing until January 1, 2011, and that before that date Keller could perform light 

duty work. (R. 137.) 

 At the second hearing, Dr. McKenna stated that the spinal tether would equal Listing 

1.04A, and that it was equivalent to the listing as early as March 30, 2010. (R. 53–55.) Dr. 

McKenna stated that the earlier evidence in the file did not show the same impairments that were 

present during 2010. (R. 55.) He provided a residual functional capacity for Plaintiff’s physical 

limitations that included frequently lifting up to ten pounds; only occasionally lifting between 

eleven and twenty pounds; never lifting more than twenty pounds; sit, stand or walk for up to 
7 

two hours at one time; sit, stand or walk for a total of six hours each in and eight hour day; no 

need for a cane; no reaching overhead with the left arm, but no limitation for the right arm; 

occasionally handle, and push and pull with the left hand; frequently finger and feel with the left 

hand; no climbing ladders, ropes, or scaffolds; no crawling; occasional other postural positions; 

frequently balance; only occasional exposure to heat, vibrating vehicles or tools, and heavy 

equipment; never be around forklifts; and restrict the noise level to no more than a normal office. 

This RFC was adopted by the ALJ for the hypotheticals presented to the vocational expert at the 

second hearing. (R. 56–59, 63–65, 663–68.) 

(4) Vocational Expert’s Testimony

(a) First Hearing

Vocational expert Thomas Grzesik (“VE”) testified at the first hearing. Mr. Grzesik is a 

rehabilitation counselor, and he testified that he had reviewed Plaintiff’s work record. (R. 145.) 

The first hypothetical person presented to the VE had an RFC to do light work, but no work 

above the shoulder with the left hand, no fully-extended left-hand benchwork, and no far 

reaching with the left hand.2

 (R. 146–47.) The VE testified that the individual would be able to 

perform the past work of hostess and receptionist, as well as three other positions: cashier, dining 

service worker, and electronics worker. (R. 147–48.) 

(b) Second Hearing

 The vocational expert at the second hearing was Leslie Friels Lloyd, Ph.D., a certified 

rehabilitation counselor who had reviewed Plaintiff’s work history. (R. 63.) Dr. Lloyd testified 

 

2

 There is no hypothetical labelled “second” or “two”. 
8 

on the jobs available for three hypothetical individuals (labelled three, four, and five, by the 

ALJ). (R. 63–72.) 

 Hypothetical three included, among others, limitations to occasionally lifting eleven to 

twenty pounds; only occasionally reaching overhead, reaching in all other directions, handling, 

fingering, feeling, pushing and pulling with both hands; exposure to noise at moderate office 

level. (R. 63–65.) The VE testified that two light duty positions and two sedentary positions were 

available to such a person. (R. 66–67.) 

 Hypothetical four included limitations to frequently lift and carry ten pounds, 

occasionally lift and carry up to twenty pounds; sit, stand or walk for two hours straight in eight 

hour day; sit, stand or walk for six hours total; right hand, continuous fingering and feeling, 

frequent overhead reaching, reaching, and all other handling and pushing and pulling; left hand, 

never reaching overhead, occasionally handling and pushing and pulling, and frequently reach, 

finger, and feel; never climb ladders or scaffolds, or crawl; occasionally climb ramps and stairs, 

stoop, kneel, or crouch; and the ALJ included other environmental limitations. (R. 68–69.) The 

VE testified that three positions existed, a sales attendant in a retail setting with 46,000 jobs in 

Indiana, a general office clerk with 7000 jobs in Indiana, and a personal attendant with 4000 

positions in Indiana. 

 For hypothetical five, the ALJ added to hypothetical four the mental limitations of a 

moderate ability to make judgment on simple work related decisions, to understand and 

remember complex instructions, to carry out complex instructions, and to make judgments on 

complex work related decisions. The ALJ included a marked impairment in the ability to 

interact appropriately with the public, supervisors, coworkers, and to respond appropriately to 

situation changes in routine work setting. (R. 71–72.) The VE testified that this individual was 
9 

precluded from all competitive work because of the marked limitation in ability to interact with 

others. (R. 72.) 

(5) ALJ’s Decision

 The ALJ found that: 

3. Through the date last insured, the claimant had the following severe 

impairments: degenerative disc disease of the lumbar and cervical spine; obesity; 

status-post left shoulder surgeries; right carpal tunnel syndrome; and left 

scapulothoracic dysfunction (20 CFR 404.1520(c)). (R. 22.) 

. . . . 

4. Through the date last insured, the claimant did not have an impairment or 

combination of impairments that met or medically equaled the severity of one of 

the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 

404.1520(d), 404.1525 and 404.1526). (R. 23.) 

. . . . 

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

through the date last insured, the claimant had the residual functional capacity to 

perform light work as defined in 20 CFR 404.1567(b), as the claimant could lift 

and/or carry 11-20 pounds occasionally and up to 10 pounds frequently; sit for 2 

hours at one time for a total of 6 hours in an 8-hour workday; stand for 2 hours at 

one time for a total of 6 hours in an 8-hour workday; and walk for 2 hours at one 

time for a total of 6 hours in an 8-hour workday. The claimant could frequently 

reach overhead, in all other directions, finger, and push/pull with the right hand; 

and continuously finger and feel with the right hand. The claimant could never 

reach overhead with her left hand; occasionally handle and push/pull with her left 

hand; and frequently reach in all other directions, finger, and feel with her left 

hand. The claimant could frequently operate foot controls bilaterally. The 

claimant could never climb ladders or scaffolds and occasionally climb stairs and 

ramps; frequently balance; never crawl; and occasionally stoop, kneel, and 

crouch. In addition, the claimant could never be around unprotected heights, 

operate a commercial motor vehicle or be around vibrations. The claimant could 

occasionally be exposed to extreme cold, heat, and unpredictable moving hazards, 

such as forklifts and robot arms; frequently be exposed to humidity, wetness, 

dusts, odors, fumes, and pulmonary irritants; and continuously be exposed to 

moving mechanical parts, such as predictable conveyor belts. (R. 24.) 

. . . . 

Through the dated last insured, considering the claimant's age, education, work 

experience, and residual functional capacity, there were jobs that existed in 

significant numbers in the national economy that the claimant could have 

performed (20 CFR 404.1569 and 404.1569(a)). (R. 28.) 
10 

 The ALJ found that Keller’s major depressive disorder had no more than a minimal 

limitation on her ability to work before March 31, 2009. (R. 22.) And that under the Paragraph B 

criteria Keller had no more than mild limitations in three functional areas, and no episodes of 

decompensation. (R. 23.) Further, no acceptable medical source had mentioned any findings that 

were equivalent to any listed impairment (R. 23.) 

 The RFC was based primarily on the opinion of medical expert Dr. McKenna. (R. 27.) 

Dr. McKenna’s opinion was given significant weight because of its consistency with the record, 

and the ALJ’s RFC included Plaintiff’s limitations that Dr. McKenna found existed as of March 

31, 2009. (R. 27.) The ALJ gave “some weight” to Dr. Karnezis’s opinions from December 2008 

through February 2009. (R. 27.) The ALJ relied on the VE’s testimony regarding an individual 

with the given, and concluded that a significant number of jobs existed in the national economy 

that Keller could perform, and that Keller was therefore not disabled. (R. 28.) 

C. Standard of Review 

This Court has the authority to review Social Security Act claim decisions under 42 

U.S.C. § 405(g). The Court will uphold an ALJ’s decision if it is reached under the correct legal 

standard and supported by substantial evidence. Briscoe ex rel. Taylor 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.” Richardson v. Perales, 402 U.S. 389, 

401 (1971). This Court will not reconsider facts, re-weigh the evidence, resolve conflicts in the 

evidence, decide questions of credibility, or substitute its judgment for that of the ALJ. Boiles v. 

Barnhart, 395 F.3d 421, 425 (7th Cir. 2005). This Court will, however, ensure that the ALJ built 

an “accurate and logical bridge from the evidence to his conclusion so that, as a reviewing court, 
11 

we may access the validity of the agency’s ultimate findings and afford a claimant meaningful 

judicial review.” Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002). 

D. Disability Standard 

To qualify for DIB or SSI benefits, the claimant must establish that he suffers from a 

disability. A disability is an “inability to engage in any substantial gainful activity by reason of 

any medically determinable physical or mental impairment which can be expected to result in 

death or which has lasted or can be expected to last for a continuous period of not less than 12 

months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Administration (“SSA”) established a 

five-step inquiry to evaluate whether a claimant qualifies for disability benefits. A successful 

claimant must show: 

(1) he is not presently employed; (2) his impairment is severe; (3) his impairment 

is listed or equal to a listing in 20 C.F.R. § 404, Subpart P, Appendix 1; (4) he is 

not able to perform his past relevant work; and (5) he is unable to perform any 

other work within the national and local economy. 

Scheck v. Barnhart, 357 F.3d 697, 699–700 (7th Cir. 2004). 

 An affirmative answer leads either to the next step or, on steps three and five, to a finding 

that the claimant is disabled. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001). A negative 

answer at any point other than step three stops the inquiry and leads to a finding that the claimant 

is not disabled. Id. The burden of proof lies with the claimant at every step except the fifth, 

where it shifts to the Commissioner. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000). 

E. Analysis

 Plaintiff makes four primary arguments on appeal: (1) the ALJ’s decision was not 

supported by substantial evidence when he did not consult a medical expert about Plaintiff’s 
12 

mental limitations as of her date last insured and did not explain how he found that she suffered 

only mild limitations in social functioning; (2) the ALJ impermissibly discounted Plaintiff’s 

mental limitations because she did not seek mental health treatment; (3) the ALJ’s assessment of 

Plaintiff’s RFC was not supported by substantial evidence; and, (4) the ALJ improperly 

discounted Plaintiff’s credibility regarding her physical limitations. (DE 15 at 1–2, 16, 18, 22, 

24–25). 

 As a threshold issue, the ALJ found, and Plaintiff does not contest, that Plaintiff was 

insured through March 31, 2009. (R. 22.) Therefore, Plaintiff must have been disabled on or 

before March 31, 2009, in order to qualify for disability benefits. 42 U.S.C. § 423(c)(1); 

20 C.F.R. §§ 404.110, 404.130(b), 404.132. This means that an impairment or a combination of 

impairments must have been present and disabling as of March 31, 2009, because it is her date 

last insured. See Parker v. Astrue, 597 F.3d 920, 924 (7th Cir. 2010) (“But even if by 2005 she 

was totally disabled, she had to prove that she was totally disabled by March 2004, because after 

that date (the ‘date last insured,’ as it is called) she was no longer eligible for social security 

disability benefits.”). 

 The Court finds that the ALJ’s decision is not supported by substantial evidence because 

he failed to consider evidence contrary to his conclusion, specifically evidence of Plaintiff’s 

mental condition and explanations for her lack of mental health treatment. 

(1) ALJ’s Finding that Plaintiff had only Mild Limitations in Three Functional Areas Not 

Supported by Substantial Evidence 

Plaintiff asserts that at step two the ALJ performed a cursory examination of her mental 

impairments, and failed to confront the evidence that indicated her limitations in social 

functioning preclude her from full-time employment. The Commissioner responds that the ALJ’s 
13 

step two finding of no severe mental impairments is supported by substantial evidence, and that 

Plaintiff failed to produce evidence of a mental impairment before her date last insured. 

 The severity of mental impairments is initially considered at step two of the sequential 

analysis. 20 C.F.R. § 404.1520(a)(4). The evaluation follows a “special technique” to determine 

if there is a medically determinable mental impairment, and if so, the ALJ must rate the degree 

of functional limitation that results from the impairment. 20 C.F.R. § 404.1520a(b). The 

technique focuses on four functional areas: activities of daily living; social functioning; 

concentration persistent or pace; and episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3). 

 The technique rates the first three functional areas on a five-point scale: none, mild, 

moderate, marked, and extreme. 20 C.F.R. § 404.1520a(c)(4). The fourth area uses a four-point 

scale: none, one or two, three, four or more. Id. If the impairment is considered “severe” the ALJ 

must determine if the impairment meets or medically equals a listed mental impairment, and if it 

does, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii); 404.1520a(d)(2). Generally, a 

rating of none or mild in the first three areas results in a finding of “not severe” unless evidence 

shows that there are more than minimal limitations in the ability to do basic work activities. 

20 C.F.R. § 404.1520a(d)(1). However, an ALJ must still consider those impairments that are 

“not severe” in determining the residual functional capacity (“RFC”). 20 C.F.R. § 404.1545(e). 

 The ALJ acknowledged the special technique and found that Plaintiff had mild 

limitations in social functioning. But the only evidence he cited in support of this finding was 

Plaintiff’s testimony she “lived with her husband and did not note any difficulty with it.” (R. 23.) 

The ALJ does not discuss any of the evidence from Empact in 2006 that shows Plaintiff had 

trouble interacting with others at home and at work, had partial judgment and impulse control, or 

Plaintiff’s testimony that she had been fired from a job at a hotel because she “got into it” with 
14 

the chef (which, if the ALJ finds Plaintiff’s testimony credible, could be evidence of Plaintiff’s 

inability to interact appropriately with at least one co-worker). (R. 618, 623, 49.) And, the ALJ 

deliberately ignored evidence from the state agency psychological consultant that Plaintiff had 

marked limitations in all three functional areas, when he stated in a footnote that he would not 

consider Dr. Herodlt’s opinion. (R. 23 n.1.) 

(2) ALJ’s Finding that Plaintiff had No Severe Mental Impairments Not Supported by 

Substantial Evidence 

 A claimant generally must prove that she is disabled by providing the SSA with evidence 

the agency can use to determine medical impairments. 20 C.F.R. § 404.1512(a). However, the 

ALJ has a duty to develop a full and fair record if the provided evidence is insufficient or 

inconsistent. 20 C.F.R. § 303.1520b; Barnett v. Barnhart, 381 F.3d 664, 669 (7th Cir. 2004). An 

ALJ cannot draw any inference from a claimant’s failure to seek treatment without considering 

the claimant’s explanations or other evidence in the record that may explain the failure to seek 

treatment. SSR 96-7P, 1996 WL 374186 at *7 (Jul. 2, 1996). If the evidence remains insufficient, 

despite efforts to fully develop the record, the SSA makes a disability decision using the 

evidence it has. 20 C.F.R. § 404.1520b(d). However, the decision cannot be supported by 

substantial evidence when the ALJ failed to confront evidence contrary to his conclusion. See 

Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010) (“An ALJ has the obligation to consider all 

relevant medical evidence and cannot simply cherry-pick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.”). 

 In Parker v. Astrue the Seventh Circuit remanded a case because the ALJ contradicted 

himself while discussing when the claimant’s symptoms of mental impairments first appeared. 

597 F.3d at 924. The ALJ stated that the claimant suffered from post-traumatic stress disorder 
15 

(“PTSD”) and depression as of her date last insured, but then stated that none of her psychiatric 

impairments surfaced until after. Id. The record showed that the claimant had symptoms of 

PTSD before her date last insured and the claimant’s doctor listed PTSD and depression on the 

“client problem list” one month after the date last insured. Id. at 923. 

 The court in Parker provided two ways to answer whether the claimant’s mental 

limitations were disabling prior to her DLI: (1) determine if “the plaintiff’s ailments are at 

present totally disabling, and, if so . . . retain[] a medical expert to estimate how grave her 

condition was” as of the date last insured; or (2) consider all relevant evidence, including 

evidence of claimant’s condition at present, and directly determine if the claimant was totally 

disabled by the date last insured. Id. at 925. 

 In Plaintiff’s case, in July 2011, Dr. Heroldt diagnosed Plaintiff with bipolar I disorder, 

obsessive-compulsive disorder, PTSD, borderline intellectual functioning, personality disorder 

NOS, and assigned a GAF score of 48. (R. 580.) But, Dr. Heroldt provided that he could not 

identify an on-set date for those diagnoses pre-dating his evaluation. (R. 574.) The ALJ expressly 

relied on this limited diagnosis to exclude Dr. Heroldt’s opinion from the analysis at step two. 

(R. 23 n.1.) The ALJ failed to follow either of the paths set out in Parker. Dr. Heroldt’s July 

2011 psychological diagnoses would likely preclude Plaintiff from full time employment as of 

July 2011 so under the first step the ALJ should have retained a medical expert to estimate how 

grave Plaintiff’s mental impairments were as of March 31, 2009, her date last insured. 

Otherwise, the ALJ should have actually considered Dr. Heroldt’s opinion, along with all other 

relevant evidence to directly determine if Plaintiff was disabled as of March 31, 2009. 

 Additionally, the ALJ’s decision is not supported by substantial evidence because he 

“cherry picked” facts from the record that supported his conclusion while ignoring evidence 
16 

contrary to the conclusion. The ALJ had evidence of Plaintiff’s mental health therapy from 

Empact in 2006, the opinion evidence of state examining psychologist Dr. Heroldt from July 

2011, and Plaintiff’s testimony at the second hearing as to why she did not seek further mental 

health treatment after 2006. Instead, he limited his discussion to Plaintiff’s testimony that she 

had no trouble living with her husband as of her date last insured, and her lack of mental health 

treatment from April 2008 to March 2009. 

 The ALJ’s failure to consider explanations for Plaintiff’s lack of mental health treatment 

is a final reason that the ALJ’s finding of no severe mental impairment is not supported by 

substantial evidence. See SSR 96-7P at 1996 WL 374186 *7. The ALJ states that Plaintiff did not 

seek mental health treatment between April 4, 2008, and March 31, 2009, and that Plaintiff was 

diagnosed with depression at Empact in 2006 but did not seek any further treatment. (R. 22–23). 

In her brief, the Commissioner elaborates that the evidence of Plaintiff’s lack of mental health 

treatment, even after she regained insurance coverage in April 2010, demonstrates that “she did 

not believe she needed such treatment.” (DE 21 at 8). But Plaintiff offered an explanation for her 

failure to seek treatment that the ALJ does not appear to have considered. 

 Plaintiff testified that she did not have insurance and could not afford to continue mental 

health treatment, and that she did not realize the severity of her mental conditions. (R. 42.) This 

testimony is consistent with the notes from Empact, and the notes from Dr. Wilmink and 

occupational therapist Coleman. (R. 42, 633–34, 678–79, 680.) The notes from Empact and 

Coleman indicate that Plaintiff reported she lost insurance coverage, so she neither continued 

attending counseling at Empact nor began physical therapy with Coleman following her 

September 22, 2006, right shoulder surgery. (R. 633–34, 678–79.) The ALJ’s failure to consider 
17 

explanations or other reasons why Plaintiff did not seek or continue treatment for mental health 

conditions is additional reason this case must be remanded. 

(3) Not Harmless Error

 In Pepper v. Colvin, the Seventh Circuit held that an ALJ’s error in executing the special 

technique was harmless because the court was convinced the ALJ would reach the same result on 

remand. 712 F.3d 351, 367 (7th Cir. 2013). In that case the ALJ did not use the required point 

scales, but the court found that a plain reading of the decision showed that the ALJ discussed 

evidence related to the four functional areas. Id. at 366. In this case, the ALJ assigned point 

values to each of the functional areas, but as discussed above, these findings are not supported by 

substantial evidence. The ALJ’s error was not harmless when he failed to adequately articulate 

reasons for finding no severe mental impairments, or to include limitations related to mental 

impairments in the RFC. This was not harmless error because the VE at the second hearing 

testified that a hypothetical individual with a marked impairment in the ability to “interact 

appropriately with the public, . . . supervisors, . . . coworkers” would rule out all work because 

that person would be unable to “sustain a working level relationship with anyone in her 

environment.” (R. 71–72.) 

(4) Credibility Determination

 Plaintiff’s final argument is that the ALJ impermissibly discounted her credibility about 

the extent of her physical limitations by relying on her activities of daily living. An ALJ’s 

credibility determination should be upheld unless it is “patently wrong.” Clifford, 227 F.3d at 

872. 
18 

 The Court cannot say that the credibility determination in this case was patently wrong 

because the ALJ did not solely [base] the determination on Plaintiff’s activities of daily living. 

The ALJ relied on Plaintiff’s reported activities of daily living and her course of treatment for 

physical injury. However, the ALJ should re-evaluate the Plaintiff’s credibility, for both physical 

and mental limitations, as necessary on remand. 

(5) Physical Limitations in the RFC Supported by Substantial Evidence

 This case is being remanded due to deficiencies in the evaluation of Plaintiff’s alleged 

mental impairments. Plaintiff’s claims as to the physical limitations provided in the ALJ’s RFC 

do not have much merit, and will therefore be considered briefly. 

 Plaintiff argues that the ALJ ignored contrary evidence by not discussing opinions from 

Dr. Bernard Bach and Dr. Freedburg regarding her ability to work full time. The Commissioner 

responds that these opinions were either disability determinations reserved for the 

Commissioner, or that the opinions were not contrary to the ALJ’s decision. 

 The Commissioner has the better argument here, Drs. Bach and Freedburg expressed 

opinions as to Plaintiff’s ability to work full-time as a waitress. The ALJ was not required to 

adopt or address these opinions given that the physical RFC excluded Plaintiff’s past relevant 

work, work that included waitress. 

 Plaintiff next argues that the ALJ impermissibly “cherry picked” from Dr. Karnezis 

opinions by not including evidence from April 2009 that Plaintiff had no use of her left arm. But, 

the Commissioner points out that in those notes Karnezis stated Plaintiff’s left arm weakness was 

inconsistent with her other symptoms, and asserts that Dr. Karnezis’ April 2009 opinion is 

rebutted by Dr. Freedburg’s October 2009 opinion that Plaintiff could return to light duty work. 
19 

(DE 21 at 11). The only medical evidence related to physical impairments that the ALJ discusses 

which post-dates the date last insured are the evidence from the medical expert Dr. McKenna, 

and the evidence from the state consultative examiner, Dr. Inabnit. (R. 23 n.1; 27; 27 n.3.) 

 The ALJ did not “cherry pick” from the record because Karnezis’s note was not a 

medical opinion contrary to the decision. The ALJ followed the Parker requirement, by 

determining that Plaintiff would have been disabled in the present, due to the spinal tether 

condition, and enlisted the help of a medical expert to determine the extent of Plaintiff’s 

limitations as of her date last insured. See Parker, 597 F.3d at 925. The ALJ’s physical RFC is 

therefore supported by substantial evidence. 

F. Conclusion

 For the foregoing reasons, Plaintiff’s request for remand is GRANTED. The case is 

remanded to the Social Security Administration. 

SO ORDERED on September 30, 2014. 

 S/ Joseph S. Van Bokkelen 

 JOSEPH S. VAN BOKKELEN 

 UNITED STATES DISTRICT JUDGE