UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

KATHLEEN M. RAMIREZ, )

)

Plaintiff, )

)

v. ) Case No. 2:13-CV-211-JD-JEM

)

CAROLYN W. COLVIN, )

Commissioner of Social Security , )

)

Defendant. )

OPINION AND ORDER

On June 14, 2013, Plaintiff Kathleen M. Ramirez filed her Complaint in this Court

seeking review of the final decision of the Defendant Commissioner of Social Security

(Commissioner). [DE 1.] The Commissioner filed an Answer on December 17, 2013. [DE 15.] 

On February 18, 2014, Ramirez filed her opening brief [DE 23], to which the Commissioner

responded on April 29, 2014. [DE 26.] Ramirez filed a reply on May 22, 2014. [DE 29.] 

Accordingly, the matter is now ripe for decision. Jurisdiction is predicated on 42 U.S.C. §

405(g).

I. Procedural History

Ramirez filed an application for supplemental security income (SSI) on May 24, 2010. 

(Tr. 133-136.) Her application was denied initially on August 10, 2010, and again upon

reconsideration on November 17, 2010. (Tr. 72-76.) On November 8, 2011, a hearing was held

before Administrative Law Judge Melody Paige. (Tr. 40-71.) On February 23, 2012, ALJ Paige

issued a decision denying the claim. (Tr. 16-34.) The Appeals Council denied a request for

review on April 18, 2013, making the ALJ's decision the final decision of the Commissioner. 

(Tr. 1-3.)
II. Facts

Ramirez was born on March 2, 1974 and was 37 years old on the date the ALJ rendered

her decision. (Tr. 33, 133.) Ramirez alleges a disability onset date of January 25, 2008 for both

physical and mental impairments, including bipolar disorder, depression, asthma, and migraine

headaches. (Tr. 149-158.) The ALJ found that Ramirez’s severe impairments included bipolar

disorder, posttraumatic stress disorder (PTSD), asthma, migraines, and obesity. (Tr. 21.)

A. Education and Employment Background

Ramirez has a high school degree and has completed 3 years of college education. (Tr.

51, 139.) Prior to the alleged onset date, Ramirez worked for a couple of years shelving books

as a library page, then for fourteen years as a payment service representative for the Chicago

Department of Revenue. (Tr. 58-59, 151.) On January 14, 2008, Ramirez was placed on

administrative leave from her job at the Department of Revenue after displaying violence in the

workplace, and later that month she was discharged from her position. (Tr. 208.)

B. Medical Evidence

Relevant to this appeal are Ramirez’s complaints of asthma and migraine headaches, and

her treatment for bipolar disorder. At the time of the hearing, Ramirez lived in an apartment

with her 8 month old child. (Tr. 49.) She testified that she relied heavily on the assistance of her

sister to cook and clean for her on a daily basis due to her medical conditions. (Tr. 53.)

1. Asthma

On October 13, 2009, Ramirez went to the emergency room for an acute exacerbation of

her asthma, and was discharged the following day after medication made her feel “markedly

better,” and she was instructed to followup with her primary care physician in regards to getting

a steroid inhaler. (Tr. 231, 237, 242-43.) On April 27, 2010, Ramirez was again seen in the

2
emergency room for shortness of breath, at which time it was noted she was out of meds. (Tr.

258.) Tests showed her lungs were clear (Tr. 263), she was diagnosed with asthma, and

discharged the same day. (Tr. 225.) On August 3, 2010, Ramirez underwent pulmonary testing

at St. Catherine, where her asthma was later assessed by state agent Dr. Whitley as being nonsevere. (Tr. 354-361.) This opinion was affirmed by state agent Dr. Mangala Hasanadka on

November 17, 2010. (Tr. 457.)

Ramirez’s records and testimony indicate she was seen in 2011 at the Hammond Clinic

about every three months for asthma problems. Her trouble with asthma is also documented in

her various mental health treatment records. (Tr. 56-57, 467-479.) It was noted that cold

weather, exercise, heat, humidity, and stress triggered her asthma, and Ramirez testified that she

could not climb stairs without becoming winded. Ramirez took asthma medication, including

Advair, Singulair, and Proventil which were listed in her prescription records. (Tr. 57, 624, 627-

628.)

2. Migraine Headaches

Ramirez has seen neurologist Shahida Ahmad, M.D. for her migraine headaches since as

early as 2004 (Tr. 608-610.) In June 2006, he ordered her to stay home from work for

approximately twelve weeks due to the side effects from her medication for headaches and

bipolar disorder. (Tr. 599.) She was then told to remain off of work another month due to her

persistent and severe migraines. (Tr. 598.) Psychiatrist Jayachandran also certified that Ramirez

was under his care for the treatment of bipolar disorder and indicated that she was totally

incapacitated from early June through September 2006. (Tr. 600.)

On August 24, 2009, Ramirez visited Dr. Ahmad with complaints of an increased number

of headaches, occurring almost daily, with severe attacks occurring 3-4 times a month and

3
lasting 2-3 days. (Tr. 217.) Due to not having insurance and an inability to find work, Dr.

Ahmad noted Ramirez was unable to get Topamax or Wellbutrin. 

On February 22, 2010, Ramirez visited Dr. Ahmad with complaints of an increased

number of headaches, this time with pain in her temples and in the back of her head. (Tr. 482.) 

On both occasions, Dr. Ahmad prescribed Topamax. (Tr. 217, 482.) It was again noted that

Ramirez was not able to get her Topamax due to financial difficulties, but once she started taking

it again she felt a little better. (Tr. 482.) Dr. Ahmad documented that Ramirez denied any

significant problems with her bipolar disorder, and was currently taking Abilify, Seroquel,

Wellbutrin, and Topamax daily, and Maxalt infrequently. An MRI study of Ramirez’s brain

presented no abnormalities except paranasal sinusitis. (Tr. 220.)

In July 2010, reviewing state agent J. Chilton found that Ramirez complained of asthma

and migraines, but neither met a listing nor were considered a severe impairment. (Tr. 343.)

On March 12, 2011, Ramirez was evaluated at Community Hospital when she

experienced severe headaches after the delivery of her baby. (Tr. 485.) Dr. Anthony Gentile,

M.D. noted that her headaches were not typical of post-epidural headaches, prescribed Topamax,

and recommended that she followup with Dr. Ahmad. (Tr. 485.) A CT scan of her brain was

normal. (Tr. 500.)

In May 2011, Ramirez returned to the care of Dr. Ahmad who noted that Ramirez was

experiencing ongoing headaches, and appeared mildly depressed and withdrawn. (Tr. 480-481.) 

He advised Ramirez to continue taking Topamax and see her psychiatrist as soon as possible.

In July 2011, Ramirez was referred to the Hammond Clinic Specialty Center for her

ongoing migraines which were noted as worse since Ramirez had her child. (Tr. 458-479.) She

was given Butalbital and Topamax. 

4
Relative to the limitations caused by her migraine headaches, Ramirez testified at the

hearing that she needed to take naps during the day and found it difficult to sit, stand, and walk

for long periods of time. (Tr. 61.)

3. Bipolar Disorder

Between July 2009 and October 2010, Ramirez had biweekly and then monthly therapy

sessions at the Regional Mental Health Center, where she had consultations with psychiatrist Dr.

Anissa Rivers and Dr. Eugene Kang, M.D. (Tr. 286-323, 393-455.) 

In her July 2009 intake report, Dr. Rivers diagnosed Ramirez with bipolar disorder

(moderate, acute, chronic) and PTSD (mild, acute, chronic). (Tr. 393-394.) Dr. Rivers also

noted that Ramirez had previously been treated for bipolar disorder for several years by another

therapist and psychiatrist. Dr. Rivers opined that Ramirez’s current Global Assessment of

Functioning (GAF)1

 score was 51. (Tr. 286, 399, 403.) 

Throughout Ramirez’s therapy sessions, it was noted that Ramirez appeared depressed

and tired, tended to isolate herself, and had to practice coping with stress and anger, although

some improvement was reported with continued therapy and medication. It was also reported

that in dealing with her mental issues Ramirez was doing better at some sessions than others. In

addition, her ongoing physical problems with asthma and migraine headaches were repeatedly

documented. 

1

A GAF score measures a clinician's judgment of the individual's overall level of psychological, social, and

occupational functioning. See DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS-Text

Revision (4th ed. 2000). The higher the GAF score, the better the individual's level of functioning. While GAF

scores have been replaced by the World Health Organization Disability Assessment Schedule, at the time relevant to

Ramirez’s appeal, GAF scores were in use. See Wikipedia, Global Assessment of Functioning,

http://en.wikipedia.org/wiki/Global_Assessment_of_Functioning (last visited Oct. 20, 2014). A GAF score of 51-60

indicates moderate symptoms, such as flat affect and circumstantial speech, occasional panic attacks, or moderate

difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).

5
In October 2009, it was documented that Ramirez had been depressed for four years, and

her depression was becoming progressively worse over the last year. Although she was

previously seeing a psychiatrist for two years, once terminated from her job she had no insurance

to cover the cost of therapy. Ramirez reported mood swings marked by sadness and crying, and

noted that she was stressed about not having a job. She also explained that she previously had a

lot of problems at work, such as confrontations with coworkers, and that she was terminated as a

result. Dr. Kang assigned Ramirez a current GAF of 55. 

On June 9, 2010, Dr. Rivers completed a “report of psychiatric status” and indicated she

had been seeing Ramirez biweekly for bipolar disorder since July 2009. (Tr. 278.) Dr. Rivers

reported Ramirez’s diagnoses of bipolar disorder, PTSD, asthma, and migraines, and assigned

Ramirez a GAF score of 51. (Tr. 278.) Dr. Rivers documented that Ramirez previously saw Dr.

Jayachandran, a psychiatrist, and therapist Cynthia Schiller from 2005-2007, and noted that she

underwent previous treatment as a child. Dr. Rivers also noted that Ramirez consistently

expressed a depressed mood, was frequently agitated, became upset when criticized, cried when

speaking of her relationship with her mother and sister, and was often fatigued. (Tr. 279.) Due

to Ramirez’s mental condition, Dr. Rivers opined that Ramirez would have problems with

reacting to co-workers, supervisors, and the public, and she would have difficulty maintaining

concentration and consistency with attendance and attending to tasks. (Tr. 282.) Dr. Rivers

indicated that Ramirez’s condition was “chronic,” but opined that she may be able to improve

coping and functioning skills in 1-2 years. Although Ramirez’s Abilify was discontinued, she

continued to take Wellbutrin.

On June 14, 2010, Dr. Kang reported that Ramirez was experiencing more sadness and

less energy and motivation. (Tr. 319-320) He also noted that Ramirez was not completing

6
household chores at the time, rather her boyfriend was taking care of the chores. Dr. Kang

increased her dose of Wellbutrin, but still gave Ramirez a current GAF rating of about 55-60.

 On July 27, 2010, Dr. Kang indicated that Ramirez had a current GAF score of “about

55-60” and listed her diagnoses as bipolar disorder, depression, asthma, migraines, and

relationship issues. (Tr. 440.) In August, Ramirez stopped using her medications after learning

she was pregnant. Dr. Kang assigned Ramirez a GAF score of 60, and in subsequent sessions it

was noted that Ramirez appeared happier when speaking about her pregnancy.

In July 2010, state agency non-examining psychologist Dr. Benetta E. Johnson prepared

a mental residual functional capacity assessment of Ramirez. (Tr. 325-327.) Dr. Johnson

determined that Ramirez was moderately limited in her ability to work in coordination with

others, interact appropriately with the public, and complete a normal workday and workweek

without interruptions from psychologically based symptoms and perform at a consistent pace

without an unreasonable number and length of rest periods. Dr. Johnson also completed a

psychiatric review technique form, finding that Ramirez suffered from bipolar disorder and

PTSD, which resulted in her having a moderate degree of limitation with respect to maintaining

social functioning and concentration, persistence, or pace. (Tr. 338-339.) Dr. Johnson further

noted that Ramirez’s GAF score of 51 did not appear to fully capture Ramirez’s reported

functioning, and believed Ramirez was capable of performing unskilled work with limited social

interaction. (Tr. 327.) On November 9, 2010, state agent psychologist Kenneth Neville

reviewed the file and affirmed the July 2010 assessment.

In October 2010, Ramirez expressed her concerns about experiencing postpartum

depression, and the need to resume medications after her pregnancy. (Tr. 575-589.) After

canceling two appointments in November, Ramirez requested to be discharged from therapy

7
despite continuing to have depressive symptoms, because her pregnancy was high risk and she

was having difficulty getting around on account of her increased physical problems. Ultimately,

Dr. Rivers discharged Ramirez with a GAF score of 51 and it was expected that she would return

to treatment after the birth of her child.

In April 2011, Ramirez had to cancel her return to therapy due to a doctor’s appointment

for her infant. (Tr. 530-574.) In May 2011, there was difficulty confirming Ramirez’s insurance

information in order to reopen her case, which then didn’t take place until June 14, 2011. Her

therapy resumed with diagnoses of PTSD and bipolar disorder, and an assigned GAF score of

60. At the time, Ramirez was taking Fioricet and Topamax for migraines, Wellbutrin for

depression, Librium for panic attacks, and Advair and Albuterol for asthma. During her intake

session, Ramirez reported to having been terminated in 2008 after having an anger outburst at

work. Dr. Rivers indicated that biweekly therapy sessions were needed, otherwise Ramirez may

have difficulty maintaining stable relationships and problems with managing affect. 

In August, Ramirez starting taking Abilify again, in addition to Librium, Topamax,

Advair, Singular, Fioricet, and her inhaler. In September, it was noted that Ramirez was having

significant trouble sleeping, significant trouble with anxiety and depressive symptoms, and

significant trouble with familial relationships. Dr. Rivers also noted that Ramirez had regressed

in all of her problem areas, and assigned Ramirez a GAF score of 55. On October 4, 2011, Dr.

Rivers reported that Ramirez needed to increase the frequency of her therapy sessions because

she had not progressed with respect to her treatment goals as initially observed. 

On October 25, 2011, Dr. Rivers completed a mental medical source statement. (Tr. 614-

619.) She reported that Ramirez had an increase in depressive symptoms followed by periods of

irritability and lack of energy; and Ramirez continued to show frequent anger at others and

8
experienced fears about family interactions. Dr. Rivers concluded that her “condition appears to

be chronic,” and noted that Ramirez was taking several medications, including Celexa and

Abilify which caused pronounced drowsiness. In addition, Dr. Rivers indicated Ramirez had

difficulty thinking or concentrating, decreased energy, persistent disturbances of mood or affect,

poor impulse control, and emotional withdrawal or isolation. (Tr. 615.) Dr. Rivers reported that

Ramirez was unable to meet the following competitive employment standards: maintaining

regular attendance; maintaining attention for two hour segments; working with others without

being unduly distracted; accepting and responding to instructions/criticism appropriately; dealing

with the stress of semiskilled or skilled work; responding to changes in a routine work setting;

and completing a normal workday and workweek without interruptions from psychologically

based symptoms. (Tr. 616-617.) Dr. Rivers believed that Ramirez’s impairments would cause

her to miss more than four days of work per month and would last at least twelve months, but

she believed Ramirez could manage her own disability benefits if awarded. Dr. Rivers further

reported that Ramirez had a current GAF score of 51, with the highest GAF score in the past

year being 55. (Tr. 614.)

C. Testimonial Evidence

1. Testimony of Ramirez

On November 8, 2011, Ramirez appeared with counsel and testified at a hearing before

the ALJ. (Tr. 40.) At the hearing, Ramirez testified that she last worked on January 14, 2008,

when she was placed on administrative leave and eventually terminated by the Chicago

Department of Revenue. (Tr. 45.) She testified that after her unexpected termination, she

collected unemployment benefits for approximately one year, because she still needed to pay

bills and purchase medication. (Tr. 46-48.) Ramirez confirmed that once her unemployment

9
benefits ran out, she did not have another source of income. Ramirez indicated that she did not

receive food stamps or Medicaid, and her mother paid the rent for her apartment. (Tr. 48-50.) 

Moreover, Ramirez testified that she and her husband were in the process of divorcing and that

she did not get along with her family except her mother and sister. (Tr. 62.)

Ramirez testified that on a normal day, she takes care of her baby, and she is able to

bathe, dress herself, style her hair, and make the bed, but she cannot vacuum because of her

asthma. (Tr. 52-53.) She indicated that her sister lives across the street and comes over to do

her vacuuming and cooking. (Tr. 53.) Ramirez testified that she generally leaves her house only

once every two weeks and she experiences anxiety around people. (Tr. 54.)

Ramirez reported that she gets very lightheaded and dizzy when she walks and that she

cannot sit or stand for long periods of time due to her migraines. (Tr. 55, 61.) Ramirez explained

that she needs to take naps during the day and her sister helps take care of her baby while she

naps. (Tr. 61.) She also testified that she gets winded when climbing stairs and experiences

drowsiness as a side effect of her medication. (Tr. 56, 60.) Ramirez confirmed that even when

she was working she had to take several sick leaves due to her medications. She also continues

to have problems with people even when taking her medications. (Tr. 61.)

2. Testimony of the Vocational Expert

During the hearing, the ALJ asked the VE to first consider a hypothetical individual of

Ramirez’s age, education, and past work experience, who had no exertional or postural

limitations, but had the following work related limitations: had to avoid places with high levels

of dust, gasses, molds, wetness, and other environmental pollutants, and had to have limited

interaction with the public and coworkers. (Tr. 65-66.) In response, the VE testified that such

an individual could not perform Ramirez’s past work as a payment services representative

10
because of the social interaction aspect, but that she could work as a library page. (Tr. 66.) The

VE also noted that the she could also perform the semi-skilled job of billing clerk and the

unskilled job of general office helper. (Tr. 66-67.)

Second, the ALJ asked the VE to refine the same hypothetical to someone who could

only perform simple, routine, and repetitive work, free of fast paced production requirements,

and involving only limited or superficial contact with the public and coworkers. (Tr. 67-68.) In

response, the VE testified that this hypothetical individual would be able to perform work as an

office helper and packing items to be shipped at both the light and medium exertional levels. 

(Tr. 68.)

Third, the ALJ asked the VE to further refine the same hypothetical to someone who was

unable to maintain regular attendance and attention for more than two hour segments; could not

work in coordination with or proximity to others or complete a normal workday or workweek

without interruptions from psychologically based symptoms; could not accept instruction and

respond appropriately to criticism from supervisors, get along with coworkers or peers, respond

appropriately to changes in the routine work setting, interact appropriately with the public,

maintain socially acceptable behavior, adhere to basic standards of neatness and cleanliness,

travel to unfamiliar places, or use public transportation; and could be expected to miss four or

more days of work per month. (Tr. 68-69.) The VE indicated that such a person would not be

able to perform work. (Tr. 69.)

D. The ALJ’s Decision

In her opinion dated February 23, 2012, the ALJ determined that Ramirez had not

engaged in substantial gainful activity since May 5, 2010, the application date (since SSI is not

payable until the month after the application is filed per 20 C.F.R. § 416.335). (Tr. 19-21.) The

11
ALJ concluded that Ramirez had severe impairments consisting of bipolar disorder, PTSD,

asthma, migraines, and obesity, but that her impairments did not, singly or in combination, meet

or equal any listed impairment enumerated in the Listings. (Tr. 21-22.) The ALJ discredited

Ramirez’s testimony with respect to the limiting effects of her severe impairments and

difficulties experienced with associating with others, irritability, depression, mood swings, lack

of motivation, chronic headache pain, difficulties breathing, and drowsiness from medications.

(Tr. 25-28.) The ALJ found that Ramirez had the residual functional capacity (RFC)2

 to perform

a full range of work at all exertional levels but with the following nonexertional limitations:

simple, routine, and repetitive work free of fast paced production requirements, no more than

limited superficial contact with the public and coworkers, and the need to avoid dust, fumes,

gases, and other environmental and pulmonary pollutants. (Tr. 24.) Ultimately, the ALJ

concluded that based on this RFC and the VE’s testimony, Ramirez was unable to perform any

past relevant work but she could still perform a significant number of jobs in the national

economy, namely office helper, packager, and light manufacturer. As a result, the ALJ

determined that Ramirez was not disabled. (Tr. 33-34.)

III. Standard of Review

The ruling made by the ALJ becomes the final decision of the Commissioner when the

Appeals Council denies review. Liskowitz v. Astrue, 559 F.3d 736, 739 (7th Cir. 2009).

Thereafter, in its review, this Court will affirm the Commissioner's findings of fact and denial of

disability benefits if they are supported by substantial evidence. Craft v. Astrue, 539 F.3d 668,

673 (7th Cir. 2008). Substantial evidence consists of “such relevant evidence as a reasonable

2

Residual Functional Capacity is defined as the most a person can do despite any physical and mental limitations

that may affect what can be done in a work setting. 20 C.F.R. § 416.945(a)(1).

12
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,

401 (1971). This evidence must be “more than a scintilla but may be less than a preponderance.” 

Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). Thus, even if “reasonable minds could

differ” about the disability status of the claimant, the Court must affirm the Commissioner’s

decision as long as it is adequately supported. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008)

(citations omitted).

In this substantial-evidence determination, the Court considers the entire administrative

record but does not reweigh evidence, resolve conflicts, decide questions of credibility, or

substitute the Court’s own judgment for that of the Commissioner. Lopez ex rel. Lopez v.

Barnhart, 336 F.3d 535, 539 (7th Cir. 2003) (citation omitted). Nevertheless, the Court conducts

a “critical review of the evidence” before affirming the Commissioner’s decision. Id. An ALJ

must evaluate both the evidence favoring the claimant as well as the evidence favoring the

claim’s rejection and may not ignore an entire line of evidence that is contrary to his findings. 

Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001). Consequently, an ALJ’s decision cannot

stand if it lacks evidentiary support or an adequate discussion of the issues. Lopez, 336 F.3d at

539. Ultimately, while the ALJ is not required to address every piece of evidence or testimony

presented, the ALJ must provide a “logical bridge” between the evidence and the conclusions. 

Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009) (citation omitted).

Furthermore, conclusions of law are not entitled to deference; so, if the Commissioner

commits an error of law, reversal is required without regard to the volume of evidence in support

of the factual findings. Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997).

13
IV. Analysis

Disability and supplemental insurance benefits are available only to those individuals

who can establish disability under the terms of the Social Security Act. Estok v. Apfel, 152 F.3d

636, 638 (7th Cir. 1998). Specifically, the claimant must be 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

create a five-step sequential evaluation process to be used in determining whether the claimant

has established a disability. 20 C.F.R. § 416.920(a)(4). The steps are to be used in the following

order:

1. Whether the claimant is currently engaged in substantial gainful activity;

2. Whether the claimant has a medically severe impairment;

3. Whether the claimant’s impairment meets or equals one listed in the 

 regulations;

4. Whether the claimant can still perform relevant past work; and

5. Whether the claimant can perform other work in the community.

Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). At step three, if the ALJ determines

that the claimant’s impairment or combination of impairments meets or equals an impairment

listed in the regulations, disability is acknowledged by the Commissioner. 20 C.F.R. §

416.920(a)(4)(iii). However, if a listing is not met or equaled, in between steps three and four,

the ALJ must then assess the claimant’s RFC, which, in turn, is used to determine whether the

claimant can perform her past work under step four and whether the claimant can perform other

work in society at step five of the analysis. 20 C.F.R. § 416.920(e). The claimant has the initial

14
burden of proof in steps one through four, while the burden shifts to the Commissioner in step

five to show that there are a significant number of jobs in the national economy that the claimant

is capable of performing. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).

Ramirez challenges the ALJ’s decision on four grounds: (1) that the ALJ failed to

properly analyze Ramirez’s credibility; (2) that the ALJ failed to properly analyze the opinion of

Ramirez’s treating psychologist, Dr. Rivers; (3) that the ALJ failed to consider the combined

impact of Ramirez’s impairments in the RFC; and (4) that the hypotheticals posed to the VE did

not incorporate all of the limitations listed in the RFC, and therefore the ALJ erred by relying on

the VE’s testimony with respect to the type of jobs that could be performed by Ramirez (since

the VE’s testimony was ultimately based on flawed hypotheticals).

A. Credibility of Ramirez

Ramirez argues that the ALJ failed to properly analyze the credibility of her testimony. 

Particularly, Ramirez believes that the ALJ failed to considered her motivations for collecting

unemployment, and the ALJ improperly discounted her complaints of migraine pain and

overlooked the medical evidence supporting Ramirez’s asserted limitations. The Commissioner

contends that the ALJ properly considered the medical evidence and gave sufficient reasons for

finding Ramirez not fully credible. The Court agrees with Ramirez.

Relative to Ramirez’s receipt of unemployment benefits, the ALJ placed great emphasis

on the conflict caused by Ramirez’s collecting unemployment benefits (and trying to find work)

while applying for disability benefits. The ALJ relied heavily on this information to diminish

Ramirez’s credibility. Yet, the ALJ improperly failed to consider Ramirez’s motivations for

collecting unemployment benefits (and looking for work) when the ALJ discounted her

testimony on this basis. Although the Seventh Circuit has noted that a claimant’s explanation for

15
seeking unemployment benefits may be relevant in assessing the credibility of her

representations to the Commissioner, Schmidt v. Barnhart, 395 F.3d 737, 745–46 (7th Cir.

2005), Ramirez testified that she sought unemployment benefits for approximately one year

because her termination was unexpected and she had no other source of income, yet had bills to

pay and medications to purchase. In addition, the record reflects that Ramirez oftentimes

stopped taking her medication and seeking treatment due to a lack of insurance and financial

means.

The Seventh Circuit has made clear that employment is not proof of ability to work.

Goins v. Colvin, 764 F.3d 677, 679 (7th Cir. 2014); Schmidt, 395 F.3d at 746 (citation omitted).

A desperate person might force herself to work—or in this case, certify that she is able to work

and even seek work—but that does not necessarily mean she is not disabled. See Gentle v.

Barnhart, 430 F.3d 865, 867 (7th Cir. 2005); Hawkins v. First Union Corp. Long–Term

Disability Plan, 326 F.3d 914, 918 (7th Cir. 2003). Despite this possibility, the ALJ discredited

Ramirez’s claims of disabling limitations because she sought work and unemployment

benefits—and the ALJ did so without discussing the evidence which indicated that Ramirez

lacked any source of income and had mounting financial responsibilities subsequent to her

abrupt termination. 

Therefore, on remand, the ALJ is to make further inquiry as to why Ramirez sought

unemployment benefits and explain how this information affects the credibility finding. See

Richards v. Astrue, 370 F. App'x 727, 732 (7th Cir. 2010); Cistrunk v. Colvin, No. 2:12-cv-82-

PRC, 2013 WL 1281824, at *11 (N.D. Ind. Mar. 27, 2013) (on remand “the ALJ shall discuss

the impact of Plaintiff’s financial hardship in relation to his receipt of early retirement and

unemployment benefits.”)

16
With regard to Ramirez’s stated limitations caused by painful headaches and asthma, the

ALJ properly considered the various factors set forth in SSR 96-7p. However, the ALJ erred

when she found Ramirez’s statements about her headaches and asthma were not credible because

medical evidence was lacking. (Tr. 29.) In particular, the ALJ stated that Ramirez didn’t seek

treatment in 2008 with respect to her asthma or migraines, which undercut “the intensity,

persistence, and limiting effects” of Ramirez’s alleged symptoms, and indicated “an

exaggeration” as to Ramirez’s testimony regarding the severity of her migraines and asthma. Id. 

The problem is that the ALJ failed to discuss Ramirez’s reasons for not seeking treatment

for her health problems during that time frame, despite evidence indicating that Ramirez was

indigent and didn’t have the funds to obtain needed medical care. See e.g., Shauger v. Astrue,

675 F.3d 690, 696 (7th Cir. 2012) (“an ALJ must first explore the claimant's reasons for the lack

of medical care before drawing a negative inference.”) (citations omitted); SSR 96-7p ("the

adjudicator must not draw any inferences about an individual's symptoms and their functional

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

explanations that the individual may provide, or other information in the case record, that may

explain infrequent or irregular medical visits or failure to seek medical treatment."). Remember

that Ramirez applied for Supplemental Security Income, which is a disability benefit available to

persons who have no more than $2000 in cash or the equivalent. Thus, the ALJ should have

explored and discussed Ramirez’s reasons for not seeking treatment in 2008 before concluding

that Ramirez exaggerated the limiting effects of her physical ailments, see, e.g., Goins, 764 F.3d

at 680, especially in this case where Ramirez has a history (pre-dating her termination in 2008)

of missing work for months at a time on account of her treatment for persistent and severe

migraines.

17
In summary, the ALJ’s credibility determination was patently wrong because it

discounted Ramirez’s testimony and asserted limitations in great part because Ramirez collected

unemployment benefits and didn’t seek treatment in 2008, without considering Ramirez’s lack of

financial resources and insurance once terminated in January 2008. Because the ALJ’s flawed

credibility determination directly affected the ALJ’s findings about the extent of Ramirez’s

limitations and her ability to perform work (as then reflected in the RFC), remand is required.

B. Opinion of Dr. Rivers

The ALJ afforded “little weight” to the medical source statements submitted by Dr.

Rivers, Ramirez’s treating psychologist. (Tr. 31.) Ramirez argues that the ALJ erred in this

respect by failing to provide good reason for not affording Dr. Rivers’ opinion controlling

weight, and failing to analyze the factors listed in 20 C.F.R. § 416.927 to determine the

appropriate weight to afford the opinion of Dr. Rivers. The Commissioner contends just the

opposite—that the ALJ did not commit error because she provided numerous reasons for

affording Dr. Rivers’ opinion little weight, all of which were supported by substantial evidence.

A treating physician’s opinion regarding the nature and severity of a medical condition is

entitled to controlling weight if the opinion is “is well-supported by medically acceptable clinical

and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence.” 

20 C.F.R. § 416.927(c)(2); Moss v. Astrue, 555 F.3d 556, 560 (7th Cir. 2009), Schmidt v. Astrue,

496 F.3d 833, 842 (7th Cir. 2007). “However, ‘while the treating physician’s opinion is

important, it is not the final word on a claimant’s disability.’” Schmidt, 496 F.3d at 842 (quoting

Books v. Chater, 91 F.3d 972, 979 (7th Cir.1996)). An ALJ may discount a treating physician’s

opinion if it “is inconsistent with the opinion of a consulting physician or when the treating

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physician's opinion is internally inconsistent, as long as he minimally articulates his reasons for

crediting or rejecting evidence of disability.” Schmidt, 496 F.3d at 842.

If the ALJ is justified in declining to give controlling weight to a treating physician’s

opinion, the ALJ must give the treating source significant weight or articulate reasons for giving

it less weight. Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010). Specifically, the ALJ must

determine what weight the treating physician’s opinion is due under the applicable regulations. 

Id.; see 20 C.F.R. § 416.927. Where an ALJ does not give a treating physician's opinion

significant weight, “the regulations require the ALJ to consider the length, nature, and extent of

the treatment relationship, frequency of examination, the physician's specialty, the types of tests

performed, and the consistency and supportability of the physician's opinion.” Moss, 555 F.3d at

560 ; 20 C.F.R. § 416.927; see also SSR 96-2p. It is error for the ALJ to accept one physician’s

opinions but not the treating physician’s opinions without any consideration of the factors

outlined in the regulations. See Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009) (finding error

where the ALJ failed to determine the weight to give a treating physician’s opinion in

accordance with Social Security Administration regulations).

Here, the ALJ afforded little weight to the October 25, 2011 opinion of Ramirez’s

treating psychiatrist, Dr. Rivers, wherein Dr. Rivers opined that Ramirez was unable to meet

various competitive employment standards and that Ramirez’s impairments would cause her to

miss more than four days of work per month. The ALJ discredited Dr. Rivers’ October 25

assessment because the ALJ found it to be inconsistent with the overall medical evidence and

with Dr. Rivers’ previous records. However, the Court finds the ALJ’s determination in this

respect to be without sufficient support because the ALJ discounted Dr. Rivers’ October 25

assessment based on various faulty premises. 

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The ALJ first noted that Dr. Rivers’ October 25 assessment was not supported by

Ramirez’s other treatment records. However, in discussing Ramirez’s mental health records, the

ALJ never mentioned many of the 2011 medical record notations which in fact supported Dr.

Rivers’ opinion that Ramirez’s mental health was declining. Specifically, as early as June 2011,

Dr. Rivers noted that without biweekly therapy, Ramirez would have difficulty maintaining

stable relationships and problems with managing affect. In September 2011, Dr. Rivers reported

that Ramirez was having “significant” trouble with anxiety and depressive symptoms,

“significant” trouble maintaining relationships, and “significant” problems with sleeping. Dr.

Rivers also noted that Ramirez had “regressed” in all of her problem areas. And in early

October 2011, prior to completing her October 25 assessment, Dr. Rivers reported that Ramirez

had not progressed with respect to her treatment goals as initially believed. 

Despite Dr. Rivers’ documented regression of Ramirez’s mental health status in 2011,

the ALJ only briefly refers to some of these record facts, and then concludes Ramirez is no more

limited than reflected in the RFC. But it was error for the ALJ to gloss over much of the

evidence favoring Ramirez and supporting the October 25 assessment of Dr. Rivers, while

relying only on the records indicating Ramirez was doing well. See Denton v. Astrue, 596 F.3d

419, 425 (7th Cir. 2010) (noting that the ALJ has an obligation to consider all relevant evidence

and cannot "cherry-pick" facts that support a finding of non-disability while ignoring evidence

that points to a disability finding). The ALJ also never mentioned the medical records which

explicitly referenced Ramirez’s having sought treatment from another psychiatrist and therapist

for two years prior to her termination. In fact, had the ALJ included a discussion of these

records, she may have noted that in 2006 Ramirez was deemed totally incapacitated for several

months on account of her bipolar disorder. And given these facts, the ALJ’s conclusion that

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“[t]here is no indication in [Ramirez’s] treatment records that she would miss multiple days of

work” (Tr. 32) as opined by Dr. Rivers, is clearly contradicted by the record.

Also problematic is the ALJ’s discounting of Dr. Rivers’ more restrictive October 2011

assessment, merely because various 2009-2010 treatment notes (and phrases) in Dr. Rivers’ file

indicated that Ramirez was improving in some aspects of treatment. Far from being inconsistent

with her earlier treatment notes, Dr. Rivers’ October 2011 assessment is supported by the

various medical records wherein Dr. Rivers documented Ramirez’s ongoing problems. In fact,

ever since July 2009, Dr. Rivers consistently opined that Ramirez’s mental disorders were

“chronic.” And although Dr. Rivers’ earlier treatment notes reflected hopeful remarks of

Ramirez’s bipolar and depressive condition, this did not automatically render her subsequent

concerns about Ramirez’s adjustment invalid. In other words, the ALJ did not account for the

fact that a person who suffers from a mental illness will have better days and worse days, so a

snapshot of any single moment says little about a claimant’s overall condition. Punzio v. Astrue,

630 F.3d 704, 710 (7th Cir. 2011); Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir. 2008) (“That is

likely to be the situation of a person who has bipolar disorder that responds erratically to

treatment.”); Kangail v. Barnhart, 454 F.3d 627, 629 (7th Cir. 2006) (“bipolar disorder is

episodic”). And Dr. Rivers’ documentation from 2011, reflected her belief that Ramirez had not

progressed as once thought. Thus, Dr. Rivers’ October 2011 assessment was not inconsistent

with other records.

The ALJ also discounted Dr. Rivers’ October 2011 opinion because the ALJ was unable

to reconcile how Dr. Rivers could believe Ramirez was so restricted in 2011, yet find that

Ramirez was able to manage her own benefits. (Tr. 32.) But being unable to manage one’s own

benefits is not a prerequisite to a finding of disability. For instance, Ramirez was not diagnosed

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as being mentally handicap nor noted as being incapable of performing basic math; rather, she

suffered from bipolar disorder and PTSD which affected her ability to sustain competitive

employment. The ALJ’s reasoning in this respect is simply unsound.

Finally, in declining to give controlling or significant weight to Dr. Rivers, the ALJ failed

to correctly consider the factors listed under the applicable regulation. See Moss, 555 F.3d at

560; 20 C.F.R. § 416.927; SSR 96-2p. As Ramirez points out, the ALJ did not directly address

the fact that Ramirez was treated for her mental conditions by Dr. Rivers, a psychologist, on a

biweekly and monthly basis for over two years. And as discussed in detail above, the ALJ failed

to observe the consistency and supportability of Dr. Rivers’ opinions with her own treatment

records. Additionally, it was improper for the ALJ to discount Dr. Rivers’ opinions because

Ramirez did not seek psychological treatment with Dr. Rivers in 2008, without also considering

Ramirez’s reasons for the lack of treatment. See Shauger, 675 F.3d at 696; SSR 96-7p. 

In sum, the ALJ has not sufficiently supported her determination that Dr. Rivers’ opinion

was not entitled to controlling or significant weight as a treating source. Accordingly, remand is

necessary for the ALJ to properly analyze and explain the weight to be afforded to the opinion of

Dr. Rivers, who in essence believed that Ramirez was disabled.

C. The RFC Determination

The ALJ must determine an individual’s RFC, or “what an individual can still do despite

his or her limitations,” SSR 96–8p, based upon medical evidence as well as “other evidence,

such as testimony by the claimant.” Murphy v. Colvin, 759 F.3d 811, 817 (7th Cir. 2014)

(citation omitted). In making a proper RFC determination, the ALJ must consider all of the

relevant evidence in the record, “even [limitations] that are not severe, and may not dismiss a

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line of evidence contrary to the ruling.” Id. (quoting Villano v. Astrue, 556 F.3d 558, 563 (7th

Cir. 2009)). 

Here, the ALJ’s flawed credibility determination and insufficiently supported discussion

of Dr. Rivers’ opinion affected the ALJ’s RFC findings about the extent of Ramirez’s

limitations. Until the ALJ supplies sufficient reason to disbelieve Ramirez and her treating

psychiatrist’s opinions, the Court is unable to conclude that the RFC is supported by substantial

evidence. For purposes of remand, the Court would specifically note that the ALJ failed to

properly account for Ramirez’s asserted limitations with regard to sitting, standing, and walking,

and her asserted need to take naps during the day.

Although there is no medical opinion indicating that Ramirez must take naps, Ramirez

testified that she must take naps during the day due to her migraines and that she relied on her

sister for assistance during those periods of rest. (Tr. 61.) Ramirez’s medical records also

evidence her persistent problem with being able to sleep. Despite this evidence, the ALJ

dismissed Ramirez’s testimony about her need to nap based on the faulty credibility discussion

previously detailed. Because Ramirez’s testimony and her documented sleep problems were not

contradicted by other evidence, on remand, the ALJ must sufficiently explain why Ramirez’s

unrebutted need for naps does not affect her ability to work. See Cuevas v. Barnhart, No. 02 C

4336, 2004 WL 1588277, at *15 (N.D. Ill. Dec. 29, 2004) (the ALJ erred by failing to address

unrebutted evidence that claimant needed to take naps during the day); Holland v. Barnhart, No.

02 C 8398, 2003 WL 22078383, at *9 (N.D. Ill. Sept. 5, 2003) (by failing to discuss the

claimant’s fatigue and how it might affect her job performance, the court was precluded from

evaluating whether there was substantial evidence to support the ALJ's finding).

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Similarly, the ALJ discounted Ramirez’s stated limitations with respect to her ability to

sit, stand, and walk, and the ALJ ultimately determined that Ramirez was capable of performing

a full range of work at all exertional levels. (Tr. 30.) Again, the ALJ’s RFC determination was

premised on the ALJ’s inadequate credibility finding and unsupported discrediting of Dr. Rivers’

assessment (that Ramirez was ultimately not able to meet competitive employment standards). 

As a result, on remand the ALJ must reconsider whether Ramirez would have further limitations,

especially with respect to her ability to sit, stand, and walk without breaks/naps, and the ALJ

shall explain how Ramirez’s credible abilities and limitations were accounted for in the RFC

assessment. 

D. The Hypothetical Questions Posed to the VE

The ALJ found that Ramirez could not perform her past work (step four), but she was

able to perform other jobs that existed in significant numbers in the national economy (step five). 

In deciding what work Ramirez was capable of performing, the ALJ relied on the VE’s

testimony, which in turn relied on the ALJ’s hypothetical questions (that were premised on the

ALJ’s impression of Ramirez’s limitations). 

The ALJ is required to incorporate into her hypotheticals those impairments and

limitations that she accepts as credible. See Schmidt v. Astrue, 496 F.3d 833, 846 (7th Cir. 2007).

Here, the ALJ’s insufficiently supported RFC findings about the extent of Ramirez’s limitations

led the ALJ to ask hypotheticals of the VE based upon only some, as opposed to all, of

Ramirez’s complaints.3

 Once the ALJ provides adequate support for her RFC findings, which

3

Admittedly, the Seventh Circuit has occasionally assumed a VE's familiarity with the claimant's limitations, despite

any gaps in the hypothetical, when the record shows that the VE independently reviewed the medical record or heard

testimony directly addressing those limitations. O'Connor-Spinner v. Astrue, 627 F.3d 614, n. 5 (7th Cir. 2010)

(citing Simila v. Astrue, 573 F.3d 503, 521 (7th Cir. 2009); Young, 362 F.3d at 1003; Steele v. Barnhart, 290 F.3d

936, 942 (7th Cir. 2002); Ragsdale v. Shalala, 53 F.3d 816, 819-21 (7th Cir. 1995); Ehrhart v. Sec'y of Health &

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can then be used as the basis of the hypotheticals, then the Court can assess whether a VE's

testimony can be relied upon as an accurate indicator for the type of work Ramirez is capable of

performing. But because it is the ALJ’s duty to assess the weight to be afforded to the record

evidence and to determine the claimant’s actual limitations and resulting RFC, 20 C.F.R. §§

416.920(e), 416.945, 416.946(c), steps four and five cannot be properly analyzed in this appeal.

Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004) (the ALJ must determine the claimant’s

RFC before performing steps 4 and 5 because a flawed RFC typically skews questions posed to

the VE); SSR 96-8p. 

On remand, the ALJ should be mindful not to assign an RFC to the claimant which is

more restrictive than the hypothetical questions posed to the VE. Specifically in this case, the

ALJ’s RFC indicated that Ramirez had “to avoid” dust, fumes, gases, and other environmental

and pulmonary pollutants, whereas the hypothetical questions posed to the VE only required

avoidance of “high levels” of dust, gasses, molds, wetness, and other environmental pollutants. 

While the jobs ultimately identified by the VE may not involve environmental pollutants, this

should be clarified on remand.

V. Conclusion

For the foregoing reasons, the Court GRANTS Kathleen M. Ramirez’s request to remand

the ALJ’s decision [DE 1.] Accordingly, the Court now REMANDS this case to the

Commissioner for further proceedings consistent with this Opinion and Order. 

Human Servs., 969 F.2d 534, 540 (7th Cir. 1992)). This exception does not apply here, since the ALJ asked a series

of increasingly restrictive hypotheticals that focused the VE's attention on the limitations of the hypothetical person,

rather than on the record itself or the limitations of the claimant herself. Id. (citing Simila, 573 F.3d at 521; Young,

362 F.3d at 1003). 

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SO ORDERED.

ENTERED: October 31, 2014 

 /s/ JON E. DEGUILIO 

Judge

United States District Court

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