UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

TIMOTHY R. KNIGHT, )

Plaintiff, )

)

v. ) CAUSE NO.: 2:14-CV-465-PRC

)

CAROLYN W. COLVIN, )

Acting Commissioner of the )

Social Security Administration, )

Defendant. )

OPINION AND ORDER

This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Timothy R. Knight

on December 22, 2014, and an Opening Brief [DE 19], filed by Plaintiff on June 4, 2015. Plaintiff

requests that the July 9, 2013 decision of the Administrative Law Judge denying his claim for

disability insurance benefits and supplemental security income be reversed and remanded for further

proceedings. On September 10, 2015, the Commissioner filed a response, and Plaintiff filed a reply

on October 1, 2015. For the following reasons, the Court grants Plaintiff’s request for remand.

PROCEDURAL BACKGROUND

Plaintiff filed applications for disability insurance benefits and supplemental security income

on June 24, 2011, alleging an onset date of April 24, 2011. His claims were denied initially and upon

reconsideration. Plaintiff timely requested a hearing, which was held on June 3, 2013. In attendance

at the hearing were Plaintiff and an impartial vocational expert by telephone. On July 9, 2013,

Administrative Law Judge (“ALJ”) Harry Kramzyk issued a written decision denying benefits,

making the following findings:

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

through December 31, 2016. 

2. The claimant has not engaged in substantial gainful activity since April 24,

2011, the alleged onset date. 
3. The claimant has the following severe impairments: a major depressive

disorder, an anxiety-related disorder including a panic-attack disorder with

agoraphobia, and polysubstance use disorders. 

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

that meets or medically equals one of the listed impairments in 20 CFR Part

404, Subpart P, Appendix 1.

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

claimant has the residual functional capacity to perform a full range of work

at all exertional levels but with the following non-exertional limitations: the

claimant is able to understand, remember and carry out short, simple,

repetitive instructions; can sustain attention/concentration for 2-hour periods

at a time and for 8 hours in the workday on short, simple, repetitive

instructions; can use judgment in making work decisions related to short,

simple, repetitive instructions; requires an occupation with set routine and

procedures, and few changes during the workday; requires an occupation

with only superficial contact with the public on routine matters; and no fast

paced production work; can maintain regular attendance and be punctual

within customary tolerances; and can perform activities within a schedule.

6. The claimant is unable to perform any past relevant work.

7. The claimant was born [in 1965] and was 46 years old, which is defined as

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

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

in English.

9. Transferability of job skills is not material to the determination of disability

because using the Medical-Vocational Rules as a framework supports a

finding that the claimant is “not disabled,” whether or not the claimant has

transferable job skills.

10. Considering the claimant’s age, education, work experience, and residual

functional capacity, there are jobs that exist in significant numbers in the

national economy that the claimant can perform.

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

Act, from April 24, 2011, through the date of this decision. 

(AR 14-24).

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The Appeals Council denied Plaintiff’s request for review, leaving the ALJ’s decision the

final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. Plaintiff filed this civil

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

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

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

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

U.S.C. § 405(g).

STANDARD OF REVIEW

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1997)).

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

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

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

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

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

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

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

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

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

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

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

DISABILITY STANDARD

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

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

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

physical or mental impairment that can be expected to result in death or that has lasted or can be

expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A),

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

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

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

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

416.920(e)-(f).

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

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

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

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

an impairment or combination of impairments that are severe? If no, the claimant is not disabled,

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

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

considered disabled; if no, then the inquiry proceeds to step four; (4) Can the claimant do the

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

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

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

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

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

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

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

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

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

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

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

313 (7th Cir. 1995).

ANALYSIS

Plaintiff seeks reversal and remand for further proceedings, arguing that (1) the ALJ should

have found him disabled under Listings 12.04 and 12.06, (2) the RFC is not supported by substantial

evidence, and (3) the credibility determination is deficient. The Court considers each in turn.

A. Listings 12.04 and 12.06

At step three of the sequential analysis, the ALJ considered whether Plaintiff met or equaled

Listings 12.04 (Affective Disorders) and 12.06 (Anxiety Related Disorders), finding that, under the

paragraph B criteria, Plaintiff had (1) mild restrictions in activities of daily living, (2) moderate

difficulties in social functioning, (3) moderate difficulties with concentration, persistence, or pace,

and (4) no episodes of decompensation. The ALJ found that Plaintiff did not meet either Listing

because he did not have a combination of either two ratings of “marked” in the first three categories

or a rating of “marked” in at least one of the first three categories as well as “repeated episodes of

decompensation, each of extended duration.” See 20 C.F.R. § Pt. 404, Subpart P Appx. 1, §§ 12.04,

12.06. Plaintiff argues that the ALJ erred in finding that he had no episodes of decompensation and

in finding only moderate difficulties in social functioning; if he had been found to have marked

difficulties in social functioning and repeated episodes of decompensation, each of extended

duration, he would have met a Listing.

1. Episodes of Decompensation

“Episodes of decompensation” is defined in the regulations as “exacerbations or temporary

increases in symptoms or signs accompanied by a loss of adaptive functioning, as manifested by

difficulties in performing activities of daily living, maintaining social relationships, or maintaining

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concentration, persistence, or pace.” 20 C.F.R. § Pt. 404, Subpart P Appx. 1, § 12.00.C.4. These

episodes can be “demonstrated by an exacerbation in symptoms or signs that would ordinarily

require increased treatment or a less stressful situation (or a combintation of the two). Id. “Repeated

episodes of decompensation, each of extended duration” as that term is used in the Listings for

mental impairments “means three episodes within 1 year, or an average of once every 4 months,

each lasting for at least 2 weeks.” Id. The Listing further explains that, if the claimant experiences

more frequent episodes of shorter duration or less frequent episodes of longer duration, the ALJ

must use “judgment to determine if the duration and functional effects of the episodes are of equal

severity and may be used to substitute for the listed finding in a determination of equivalence.” Id.

These episodes may also be inferred from medical records that show “significant alteration in

medication,” from documentation of the need for a more structured psychological support system,

or from other relevant information in the record about the existence, severity, and duration of the

episode. Id.

In finding no episodes of decompensation, the ALJ noted that Plaintiff was hospitalized

twice as a result of his severe mental impairments but found that neither was of sufficient duration.

(AR 19). The ALJ also found that, in both instances, Plaintiff “rapidly improved with appropriate

treatment such that the severity of the decompensatory event does not meet the level of severity

required under Listing 12.00.” Id. (citing Ex. 1F, 2F (AR 223-48, 249-82)). The Court finds that

substantial evidence supports the ALJ’s determination that Plaintiff did not experience “repeated

episodes of decompensation, each of extended duration.”

Although Plaintiff is quick to note his two hospitalizations, he fails to explain that the first

lasted just one day, from March 9 to March 10, 2011, and the second lasted three days, from July

5 to July 8, 2011. See (AR 251-72, 273-82). Neither hospitalization lasted the requisite two weeks. 

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Plaintiff also makes much of his treating psychologist’s statement that the harassment

Plaintiff experienced at his work resulted in psychological decompensation to the level that he was

psychiatrically hospitalized.” (AR 375). That hospitalization was the first hospitalization from

March 9 to March 10, 2011, and was not a separate, third event. 

Plaintiff suggests that the ALJ did not properly exercise his judgment regarding other events

that could be considered as functionally equaling the episodes of decompensation necessary to meet

a Listing. Plaintiff notes the events surrounding the harassment at work that lead him to quit his job

and be hospitalized, suggesting that together the events constitute an episode of decompensation of

longer duration. Plaintiff also notes that he continued to have self-inflicted burns in 2011, that his

medications were occasionally changed, and that he continued to experience distress in both social

and public settings. Plaintiff’s treating therapist, Brian Dieckmann, Psy.D., opined on January 12,

2012, that “[a] return to work at this time may set [Plaintiff] up for job related failure directly related

to returning to a setting associated with traumatic experiences and the associated psychological

decline.” (AR 375). During each hospitalization, Plaintiff reported having injured himself and both

hospitalizations resulted in a change of medication. 

However, none of these events alone or in combination are significant enough to challenge

the ALJ’s judgment as to episodes of decompensation. For example, Plaintiff notes changes in his

medications Abilify and Celexa but offers no evidence or argument that they were anything other

than changes from an initial to a recommended dosage or a routine adjustment in the course of

treatment; in other words, he has not demonstrated that the increase was “significant.” In his reply

brief, Plaintiff points to medication changes on March 9, 2011, but that is the day that Plaintiff was

admitted for his first hospitalization. (AR 235-36, 237). Even if the month period in which Plaintiff

was adjusting to medication constituted an episode, Plaintiff did not suffer repeated episodes. The

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two hospitalizations occurred at the outset of his mental health treatment and were not repeated over

the course of two years before the ALJ’s decision. Also, as correctly recounted by the ALJ, several

of Plaintiff’s behaviors improved, including incidents of self-harm, and he showed clinical

improvement with using several techniques. Although, as discussed in more detail below, Plaintiff

continued to suffer severe symptoms regarding social functioning, there were no exacerbations or

temporary changes that would rise to the level of an episode.

Plaintiff argues that the ALJ improperly relied on the September 20, 2011 opinion of Dr.

Kladder, the state agency doctor, that there were no episodes of decompensation because it is not

clear whether Dr. Kladder had access to the hospitalization records. See (AR 314). However,

Plaintiff’s speculation is belied by the content of the records Dr. Kladder specifically discusses,

namely (1) the Mental Status Examination of Dr. McKian, dated September 6, 2011, which details

the hospitalizations (describing them each as “one week” in duration), and (2) the June and July

2011 records from treating psychiatrist Dr. Hess and treating psychologist Dr. Dieckmann, which

note the July hospitalization. See (AR 291, 293, 295, 298). Dr. Kladder also discussed the content

of the treatment notes from June 2011, including Plaintiff’s daily activities as recounted to Dr.

Dieckmann during therapy. (AR 314). Although Dr. Kladder did not mention the hospitalizations

in his report, given that the hospitalizations were reported as being of only a week in duration, the

evidence supports his finding that there were no episodes of decompensation.

Unlike in Larson v. Astrue, 615 F.3d 744, 750 (7th Cir. 2010), cited by Plaintiff, no medical

source, treating or otherwise, opined that Plaintiff had “repeated episodes” of decompensation that

equal a Listing. Thus, this is not a case in which a medical source found sufficient episodes of

decompensation and the ALJ found otherwise. 

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Finally, Plaintiff argues that he did not experience the vast “improvement” suggested by the

ALJ. Although he was not relieved of all symptoms following the two hospitalizations, such as the

amount of time he spent in bed, burning himself for several months afterwards, or his ongoing

difficulties with social functioning, the records show that Plaintiff significantly improved following

each hospitalization, and the ALJ accurately discussed the hospitalization records in the decision.

For example, the ALJ noted the improvement of Plaintiff’s GAF scores from 20 upon admission to

50 upon discharge for both hospitalizations. See (AR 21, 256, 274-75). The ALJ also noted that, as

Plaintiff “became more compliant with treatment and abstinence from substances, his GAF scores

improved such that they have consistently ranged in the mid-fifties.” (AR 21 (citing Exs. 9F, 15F));

(AR 330-71, 388-475). The ALJ then noted that Plaintiff’s “trend towards improvement continued

in 2012.” (AR 22 (citing Ex. 15F)); (AR 388-475). The ALJ noted, as is supported by the record,

that Plaintiff had “continued success at using coping techniques and relaxation exercises to avoid

engaging in self-harming behavior as he had done in the past, even in spite of decreased frequency

of treatment sessions.” (AR 22 (citing Ex. 15F)). The ALJ did not ignore the fact that Plaintiff

continued to have difficulties, despite improvement since hospitalization, noting that Plaintiff

continued to have physical shakiness, difficulty quieting his mind before sleeping, and difficulty

tolerating the social interaction involved with a garage sale. 

The Court will not re-weigh the evidence that was properly considered by the ALJ. See

Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012) (“We do not reweigh the evidence or substitute

our own judgment for that of the ALJ; if reasonable minds can differ over whether the applicant is

disabled, we must uphold the decision under review.”). Substantial evidence supports the ALJ’s

finding that Plaintiff did not suffer repeated episodes of decompensation, each of extended duration.

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2. Social Functioning 

Under the Listings, “social functioning” describes a claimant’s capacity to interact

independently, appropriately, effectively, and on a sustained basis with other individuals. 20 C.F.R.

§ Pt. 404, Subpart P. Appx. 1, § 12.00. Impaired social functioning may be demonstrated by “a

history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships,

or social isolation.” Id. In contrast, strength in social functioning may be demonstrated by the

“ability to initiate social contacts with others, communicate clearly with others, or interact and

actively participate in group activities.” Id. A “marked” limitation in social functioning is not

defined by a specific number of different behaviors but rather “the nature and overall degree of

interference with function.” Id.

The ALJ found that Plaintiff has moderate difficulties in social functioning; Plaintiff argues

that the evidence supports a finding of marked difficulties in this category. In his decision, the ALJ

acknowledged the record evidence that Plaintiff avoids crowds, is socially isolative on a daily basis,

lacks motivation to get out of bed, and exhibits some shaking and crying behavior in the presence

of treating professionals. (AR 18). However, the ALJ also found that, in the presence of appropriate

treatment, Plaintiff “attends social get-togethers with family and friends, communicates with people

via Facebook, attends public events such as the circus, and goes to Wal-Mart and grocery stores to

shop for needed items.” (AR 18) (citing Ex. 4E, 4F, 5R, 9F, 15F). 

When scrutinized, the evidence of record does not support the ALJ’s characterization of

Plaintiff’s social functioning. The ALJ discounts the severity of Plaintiff’s agoraphobia and social

isolation by cherry picking the only social events in the record and paints them as illustrative of a

much richer social life. 

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First, the reference to a social get-together and Facebook is from Dr. Dieckmann’s June 22,

2011 treatment record that Plaintiff went to a barbeque with some friends he reconnected with on

Facebook. However, the same treatment record explains that he “was encouraged to process[] . . .

his anxiety around going to the bar-b-q.” (AR 290). Two weeks later was his second hospitalization.

In August 2011, Plaintiff reported to Dr. Dieckmann that he had to leave a wake after 20 minutes

because “he had to get out.” (AR 337). Plaintiff attended the circus with friends in approximately

November or December 2011, but he went to an early performance that was less well attended and

reported that “he could not have done it without Xanax.” (AR 361). In May 2012, Plaintiff reported

to Dr. Dieckmann that he had recently been at his friend’s house helping with yard work when he

realized a garage sale with over thirty people was going on at the house; he had a panic attack and

had to leave. (AR 391). At the same visit, Plaintiff reported that he did not plan to go to a Memorial

Day party in Chicago because it would have required taking the South Shore train and the “L,” to

which he commented: “not like that won’t turn out bad.” (AR 391). Plaintiff reported on December

15, 2011, that he was going to be picked up by his brother for Christmas to spend time with his

family, (AR 354), and in January 2013, Plaintiff reported that he spent the holidays with his

brother’s family, (AR 441). However, in his testimony, he stated that he only sees his family on

holidays, indicating that these were uncommon events. In the January 2013 note, Plaintiff reported

that his only outing was to visit a friend. (AR 441). The only reference to Wal-Mart is in the May

26, 2013 treatment note by Kimberly Meyer, M.D. (who replaced Dr. Hess as Plaintiff’s treating

psychiatrist in Spring 2012) that Plaintiff’s last outing was to visit a friend, being to Wal-Mart. (AR

445). In his testimony, Plaintiff explained that he usually does his grocery shopping at midnight so

that he can avoid crowds of people. (AR 53, 55).

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When the events cited by the ALJ are examined, the evidence depicts an individual who

leaves social situations immediately when he encounters a crowd, attends family functions only at

the holidays, and shops late at night to avoid crowds, all of which appears to constitute fear of

strangers, fear of crowds, avoidance of interpersonal relationships, and social isolation. The ALJ’s

downplay of the facts to support a finding of only moderate limitations suggests that Plaintiff in fact

has marked limitations in social functioning. In addition, as discussed in the next section below, the

ALJ interpreted the treatment records regarding social functioning in a manner inconsistent with the

treating physicians’ medical source statements, which also support marked limitations in social

functioning. See Mason v. Barnhart, 325 F. Supp. 2d 885, 900, 904 (E.D. Wis. 2004). This is not

a matter of the ALJ not discussing every piece of evidence, as suggested by the Commissioner, see

(Def. Br. 5 (citing Simila v. Astrue, 573 F.3d 503, 516 (7th Cir. 2009)), but rather the ALJ implying

that the evidence discussed means something other than what appears on its face to support a finding

of moderate rather than marked limitations. Thus, because the ALJ did not provide a complete

picture of these limited events, the ALJ did not built an accurate and logical bridge between the

evidence and his conclusion. See Godbey v. Apfel, 238 F.3d 803, 808 (7th Cir. 2000).

However, to the extent the step three determination is concerned, the error regarding the

degree of limitation in social functioning is harmless. Because there is not another marked limitation

in a functional area or sufficient episodes of decompensation, even if the ALJ had found that

Plaintiff had a marked limitation in social functioning, Plaintiff would not have met a Listing.

Therefore, the ALJ did not err in finding that Plaintiff’s impairments do not meet Listings 12.04 and

12.06. But, as discussed in the next section, a marked limitation in social functioning does impact

the RFC. 

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B. Residual Functional Capacity

Plaintiff argues that the ALJ erred in formulating his RFC by improperly weighing the

opinions of his treating doctors, arguing that the ALJ inflated Plaintiff’s social capabilities,

erroneously suggested Plaintiff’s condition improved, and relied on unsupported state agency

opinions.

The RFC is a measure of what an individual can do despite the limitations imposed by his

impairments. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); 20 C.F.R. §§ 404.1545(a),

416.945(a). The determination of a claimant’s RFC is a legal decision rather than a medical one. 20

C.F.R. §§ 404.1527(e)(1), 416.927(e)(1); Diaz, 55 F.3d at 306 n.2. The RFC is an issue at steps four

and five of the sequential evaluation process and must be supported by substantial evidence. SSR

96-8p, 1996 WL 374184, *3 (July 2, 1996); Clifford, 227 F.3d at 870.

“RFC is an assessment of an individual’s ability to do sustained work-related physical and

mental activities in a work setting on a regular and continuing basis. A ‘regular and continuing’

basis means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96-8p at *1.

“The RFC assessment is a function-by-function assessment based upon all of the relevant evidence

of an individual’s ability to do work-related activities.” SSR 96-8p, at *3. The relevant evidence

includes medical history; medical signs and laboratory findings; the effects of symptoms, including

pain, that are reasonably attributed to a medically determinable impairment; evidence from attempts

to work; need for a structured living environment; and work evaluations, if available. Id. at *5. In

arriving at an RFC, the ALJ “must consider all allegations of physical and mental limitations or

restrictions and make every reasonable effort to ensure that the file contains sufficient evidence to

assess RFC.” Id.

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As for Plaintiff’s mental RFC, the first ALJ gave “partial weight” to the state agency

psychological consultant’s mental assessment, finding that it was not sufficiently restrictive on the

basis that the evidence supported not only limitations in social interaction but also in the ability to

concentrate and persist in work activity. Plaintiff does not dispute this determination.

However, Plaintiff argues that the ALJ then erred by giving only “little weight” to the

January 1, 2012 medical source statement of his therapist Dr. Dieckmann, and the January 17, 2012

medical source statement of his psychiatrist Dr. Meyer, both of whom treated Plaintiff at Regional

Mental Health and both of whom opined that Plaintiff had, at best, fair, poor, or no ability to

consistently engage in work activity. (AR 22-23). Both doctors checked the box for “poor/none” for

Plaintiff’s ability to relate to co-workers, deal with the public, deal with work stresses, and relate

predictably in social situations. (AR 373-74; 377-78). Dr. Meyer additionally checked “poor/none”

for the ability to interact with supervisors; function independently; understand, remember, and carry

out complex job instructions; understand, remember, and carry out detailed, but not complex, job

instructions; and behave in an emotionally stable manner. (AR 377-78). In his “basis for

assessment,” Dr. Dieckmann explained that Plaintiff’s symptoms increased in early 2011 as a result

of a hostile work environment that “resulted in psychological decompensation to the level that he

was psychiatrically hospitalized.” (AR 375). Dr. Dieckmann commented that Plaintiff “experiences

significant distress in social and public settings. A return to work at this time may set [Plaintiff] up

for job related failure directly related to a setting associated with traumatic experiences and the

associated psychological decline.” Id. Dr. Meyer based her assessment on the diagnoses of major

depressive disorder and panic disorder and on the stressors of being unemployed, having difficulty

accessing health care, and financial difficulties. Dr. Meyer completed a second medical source

statement over a year later on April 24, 2013, giving the same opinion.

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An ALJ must give the opinion of a treating doctor controlling weight if (1) the opinion is

supported by “medically acceptable clinical and laboratory diagnostic techniques” and (2) it is “not

inconsistent” with substantial evidence of record. Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir.

2010). “An ALJ must offer ‘good reasons’ for discounting the opinion of a treating physician.” Scott

v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011). If an ALJ determines that controlling weight is not

appropriate, the ALJ must then decide what weight to assign to the opinion. 20 C.F.R. §§

404.152(c), 416.927(c);SSR 96-2p, 1996 WL 374188 (Jul. 2, 1996); Schmidt v. Astrue, 496 F.3d

833, 842 (7th Cir. 2007).

The reason given by the ALJ for assessing “little weight” to the medical source statements

of Dr. Dieckmann and Dr. Meyer was that the opinions “are not consistent with the [doctors’] own

notations of progress made by the claimant in psychotherapeutic treatment both as regards his ability

to socially interact and his ability to concentrate upon and persist in activity.” (AR 23). The ALJ

supported this reasoning by citing Exhibits 10F, 11F, and 16F. However, those exhibits are not

treatment records but rather are the three medical source statements themselves. More importantly,

the ALJ provided no explanation of how or which portions of the doctors’ treatment records are

inconsistent with their opinions.

The ALJ is correct that Plaintiff was stabilized after his hospitalizations and showed

improvement in his ability to use certain techniques to improve his attitude and avoid self harm. For

example, Plaintiff’s thoughts of self-harm or infliction of self-harm continued for several months

in 2011 but then stabilized. See (AR 337) (8/25/2011) (self-harm); (AR 339) (9/8/2011) (self-harm);

(AR 346, 350) (10/20/2011) (self harm); (AR 354) (12/15/2011) (no self-harm); (AR 396)

(8/9/2012) (same); (AR 401) (10/4/2012) (same); (AR 403) (10/18/2012) (same); (AR 404)

(11/15/2012) (same). In June 2012, Dr. Dieckmann noted that interventions appeared effective

16
because Plaintiff took the lead in making comments about his progress and was more accurately able

to appraise his growth. (AR 393).

However, the records do not suggest significant improvement in his ability to function

socially. The more recent records continue to note that Plaintiff spent the majority of his day at

home, watching television, and playing with his cat, in isolation. See (AR 403, 405-06, 439). In the

paragraphs leading up to the weighing of the opinion evidence, the ALJ discussed the treatment

records and noted, as he did at step 3, that Plaintiff shopped at Wal-mart and visited with his one

friend to show improvement in his symptomology, “particularly as regards his ability to persist in

activity and engage in social interaction.” (AR 22). However, as discussed in the previous section,

the ALJ misstated the record by stating that Plaintiff “tolerat[ed] the social interaction involved with

a garage sale,” when in fact he left the friend’s house with a panic attack when he observed the

crowd of people in May 2012. (AR 22); (AR 391) (5/17/2012). Although the ALJ represents that

there were “repeat” outings with a friend, there is only one record of going to Wal-mart, and the

reports to Dr. Dieckmann of seeing his one friend are sporadic. Although Plaintiff saw his family

at the Christmas holiday both years, the ALJ’s finding that Plaintiff engaged in “family social

gatherings” implies more than the limited nature of the two events. (AR 22). There are only a few

other references to socialization in the record—an outing to the circus that required Plaintiff to

medicate with Xanax to make it through the show, a barbeque that Plaintiff described as a stressor

to Dr. Dieckmann, and a wake that Plaintiff had to leave after 20 minutes. There was also one time

when Plaintiff socialized with neighbors, but he first purchased vodka to be able to engage in the

social interaction. (AR 396). The ALJ also suggested that Plaintiff reinstating his drivers license

somehow demonstrates social interaction; but the record does not indicate whether Plaintiff

reinstated his license online or in person. These sporadic events, which took place over two years,

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are not inconsistent with the treating medical source statements of Dr. Dieckmann and Dr. Meyer,

nor do they suggest progress in social functioning.

As noted by the ALJ, Plaintiff continued to display shaking or nervous affect with Dr.

Dieckmann. See (AR 345) (9/22/2011); (AR 361) (12/15/2011); (AR 363) (1/12/2016); (AR 388)

(4/5/2012); (AR 395) (7/12/2012); (AR 396) (8/9/2012); (AR 397) (8/23/2012); (AR 404)

(11/15/2012). And, Plaintiff remained isolated. On May 31, 2012, Dr. Dieckmann noted that

Plaintiff reported continued experiences of anxiety and panic. (AR 392). On June 14, 2012, Plaintiff

reported more isolation and that his anxiety had not improved.(AR 393). On August 23, 2012,

Plaintiff reported increased feelings of anxiety and poor sleep and that he “has not felt right in at

least two weeks.” (AR 397). On October 4, 2012, Plaintiff reported that he remained isolated and

nervous of others. (AR 401). On October 18, 2012, Plaintiff reported remaining isolated although

feeling less depressed over the previous week. (AR 403).

On both November 29, 2012, and December 13, 2012, Plaintiff presented as appearing within

normal limits within most areas, and his affect was normal with some restricted affect. (AR 405,

406). However, Plaintiff reported that he continued to isolate himself in his apartment. Id. Although

Plaintiff’s therapy sessions with Dr. Dieckmann ended because he had reached the maximum

number of visits permitted under Medicaid, he continued to see Dr. Meyer for medication. And, in

April 2013, Dr. Meyer gave Plaintiff the same ratings in an updated medical source statement,

indicating that Plaintiff could not work. (AR 477). Dr. Meyer’s treatment notes for January 29, 2013,

and February 26, 2013, show reports of feeling better, keeping busy around the house, feeling sad

on his mother’s birthday, no crying spells, sleeping better, and a good appetite. But, Plaintiff’s only

outing was the trip to Wal-Mart. (AR 443, 445).

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The Commissioner’s response brief wholly fails to address Plaintiff’s criticism of the ALJ’s

assessment of Plaintiff’s social functioning. See (Def. Br. 6). Instead, the Commissioner quotes the

ALJ’s reasoning at step three regarding the other functional areas of “activities of daily living” and

“concentration, persistence or pace,” neither of which Plaintiff is challenging. See (Def. Br. 6

(quoting AR 18, 19)).

In this case, the only reason given by the ALJ for discounting the opinions of Dr. Meyer and

Dr. Dieckmann is that the opinions are inconsistent with their own treatment records. An ALJ is

entitled to discount the medical opinion of a treating physician if it is inconsistent with the opinion

of a consulting physician or when the treating physician’s opinion is internally inconsistent, as long

as the ALJ gives good reasons. Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010); Schaaf, 602

F.3d at 875; Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004). The ALJ in this case did not

give good reasons because he did not explain how the opinions are inconsistent with the treatment

records, and, the ALJ’s conclusions about improvement in social functioning are not supported by

substantial evidence. Nor is there other substantial evidence in the record that contradicts or conflicts

with the opinions. SSR 96-2p. Thus, substantial evidence does not support the weight given by the

ALJ to the treating mental health opinions.

When a treating source’s opinion is not given controlling weight, the ALJ must apply several

factors to determine the weight to give the opinion and must give good reasons for the weight given

to the treating source’s opinion. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see also Schaaf,

602 F.3d at 875. The factors are the length of the treatment relationship and the frequency of

examination, the nature and extent of the treatment relationship, supportability, consistency,

specialization, and other factors such as the familiarity of a medical source with the case. 20 C.F.R.

§§ 404.1527(c), 416.927(c). Plaintiff argues that the ALJ erred by not explaining how these factors

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were applied. In this case, because the reason given by the ALJ is not supported by the evidence,

the absence of any discussion of how the ALJ weighed these factors is palpable. Compare Henke

v. Astrue, 498 F. App’x 636, 640 n.3 (7th Cir. 2012) (“The ALJ did not explicitly weigh every factor

while discussing her decision to reject Dr. Preciado’s reports, but she did note the lack of medical

evidence supporting Dr. Preciado’s opinion, and its inconsistency with the rest of the record. This

is enough.”). Dr. Dieckmann treated Plaintiff biweekly for 18 months, and Dr. Meyer treated him

for over a year. Both were knowledgeable about Plaintiff’s repeated self-inflicted wounds,

hospitalizations, and social phobia. Moreover, the doctors’ medical source statements are

remarkably similar and, thus, are consistent with each other. Compare Herrmann v. Colvin, 772 F.3d

1110, 1111 (7th Cir. 2014). Generally, the more consistent an opinion is with the record as a whole,

the more weight it is given. 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4). Thus, the ALJ’s failure to

discuss any of the other factors leaves the Court with no basis on which to find that the assigned

weight is supported by substantial evidence. Remand is required for a proper consideration of the

opinions of treaters Dr. Meyer and Dr. Dieckmann.

Plaintiff also argues that his social limitations impact the availability of jobs. He reasons that

the job of kitchen helper identified by the vocational expert “seems pretty similar” to his prior

employment with the exception of some of the job responsibilities. Similarly, Plaintiff notes that a

hospital cleaner works in a hospital where there are large numbers of people, and that the position

of janitor may also require being near large groups of people. Thus, Plaintiff argues that, because

his difficulties with crowds of people were not properly factored into the RFC, these jobs may not

be appropriate in light of his social limitations. Because this case is being remanded, the ALJ will

have an opportunity to clarify with the vocational expert, if necessary, whether the available jobs

sufficiently account for Plaintiff’s social limitations.

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As for his physical RFC, Plaintiff contends that gout should have been considered severe at

step two or incorporated in the RFC. On September 16, 2011, state agency consultant Dr. Sands

opined that Plaintiff did not have a severe physical impairment. (AR 311). The ALJ gave his

physical assessment “great weight” on the basis that it was consistent with the record as a whole.

(AR 22). At step two, the ALJ concluded that Plaintiff’s gout was not “severe,” noting that there was

no imaging of the joints, “treatment has been exceedingly conservative, consisting essentially of

nothing other than an ongoing regimen of Meloxicam which predates both the claimant’s alleged

onset date and cessation of substantial gainful activity,” and that assessments of Plaintiff’s gait and

peripheral joint function consistently indicate that his gait is normal, his joint range-of-motion is

within functional limits, and his fine-motor function is intact. (AR 17-18). These statements are

supported by the evidence of record.

Plaintiff remarks that “gout” is noted many times in the record, citing pages 48, 59-60, 308-

10, 479-81, and 492 of the administrative record. While these citations reference gout, none requires

reversing the ALJ’s determination. The first page cited is Plaintiff’s testimony that he takes

medication for his gout. (AR 48). However, there is no testimony or evidence that his gout is not

controlled with medication and diet, and, in fact, he testified that it is controlled. (AR 59-60). The

reference to gout at page 308 of the record is Plaintiff’s recitation of his medical history to

consultative examiner Dr. A. Perez; Dr. Perez’s physical examination findings of Plaintiff’s

extremities were all normal. (AR 308-10). On a July 6, 2012 treatment record, there is a notation of

“Gout NOS” under “current problems,” and the same record lists the Meloxicam prescription to treat

gout. (AR 479-80). Another citation is to the February 23, 2011 treatment note from his regular

treating nurse practitioner for his hypertension that he had a “past history” of “gouty arthritis”;

however, there is no record of treatment at that time for gout. (AR 492). The last citation is to

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Plaintiff’s testimony about his ability to stand, but Plaintiff fails to note his testimony that his gout

is controlled as long as he eats a proper diet. (AR 59-60). Plaintiff also notes that his former

employer reported that he called off of work four to five times a year because of gout. (AR 196).

But, he nevertheless maintained his employment for 15 years.

The ALJ did not err in the physical RFC with regard to Plaintiff’s gout as it appeared to be

under control with medication. Nor did the ALJ err in giving great weight to the state agency

medical consultant’s physical assessment.

C. Credibility Determination

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

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

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

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

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

(1) The individual’s daily activities;

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

(3) Precipitating and aggravating factors;

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

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

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

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

symptoms.

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

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

credibility determination unless it is ‘patently wrong.’” Shideler, 688 F.3d at 310-11 (quotation

marks omitted) (quoting Skarbek, 390 F.3d at 504-05); see also Prochaska, 454 F.3d at 738.

Nevertheless, “an ALJ must adequately explain his credibility finding by discussing specific reasons

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supported by the record.” Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013) (citing Terry, 580

F.3d at 477); SSR 96-7p, 1996 WL 374186, at *2 (Jul. 2, 1996) (“The determination or decision

must contain specific reasons for the finding on credibility, supported by the evidence in the case

record, and must be sufficiently specific to make clear to the individual and to any subsequent

reviewers the weight the adjudicator gave to the individual’s statements and the reasons for that

weight.”).

First, Plaintiff argues that the ALJ used the impermissible boilerplate language. The ALJ did

not as there is no reference to the RFC in the ALJ’s introduction to the credibility determination.

Rather, the ALJ found that “the claimant’s statements concerning the intensity, persistence and

limiting effects of these symptoms are not entirely credible for the reasons stated in this decision.”

(AR 20) (emphasis added). This is precisely the type of analysis the Seventh Circuit Court of

Appeals requires. See Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012); Bjornson v. Astrue, 671

F.3d 640, 645-46 (7th Cir. 2012). 

Next, Plaintiff argues that the ALJ did not specify which parts of his testimony were not

credible. However, the ALJ discussed Plaintiff’s improvement following his hospitalization and that

as Plaintiff “became more compliant with treatment and abstinence from substances,” his condition

improved. (AR 21). As discussed above, the ALJ correctly noted that with “the benefit of ongoing

psychotherapeutic counseling and his medication regimen of BuSpar, Xanax, and Abilify,

[Plaintiff’s] abilities towards social interaction and maintaining concentration did improve, albeit

with some slowing secondary to the claimant’s lack of between session compliance.” (AR 21). The

ALJ then detailed the treatment records in 2012 to show that Plaintiff continued to improve despite

the evidence of physical shaking and difficulty quieting his mind. (AR 22). The ALJ noted Dr.

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Dieckmann’s treatment notations that Plaintiff continued to succeed in using coping techniques and

relaxation exercises to avoid engaging in self-harming behavior. Id.

However, the details cited by the ALJ go to Plaintiff’s ability to perform activities of daily

living and maintain concentration, persistence, or pace, but, as discussed above, do not show

resolution of his difficulties in social functioning. In contrast, Plaintiff made statements in the

Function Report - Adult that he could not go out in public, did indoor household necessities only,

avoided going out due to agoraphobia, and shopped monthly for necessities. He also reported

difficulty completing tasks, with concentration, and in getting along with others. (AR 187-191).

These are statements consistent with his hearing testimony two years later as well as the treatment

records and opinions of Dr. Dieckmann and Dr. Meyer. On remand, the ALJ is directed to re-weigh

Plaintiff’s testimony regarding his social functioning once he has re-weighed the treating physician

opinion evidence.

Plaintiff also argues that the ALJ discounted his credibility solely because of objective

evidence. This is incorrect as the ALJ relied mostly on Plaintiff’s own reports to his treating doctors,

which is not objective evidence. See 20 C.F.R. §§ 404.1529(a), 416.929(a).

As for the ALJ’s reference to the decreased frequency in therapy sessions, Plaintiff argues

that he had reached the maximum number of treatment sessions under his Medicaid coverage.

However, the ALJ did not hold the decreased sessions against Plaintiff. In addition, Plaintiff

continued to be seen regularly by Dr. Meyer for medication, and Dr. Meyer kept detailed records

regarding Plaintiff’s progress. As noted above, although Dr. Meyer noted improvement in areas, she

nevertheless gave a medical source statement in April 2013 that did not support improvement.

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CONCLUSION

Based on the foregoing, the Court hereby GRANTS the relief sought in the Opening Brief

[DE 19], REVERSES the final decision of the Commissioner of Social Security, and REMANDS

this matter for further proceedings consistent with this Opinion and Order.

So ORDERED this 30th day of March, 2016.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

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