impairment is severe, but does not meet the listings, the ALJ will assess the plaintiff's
RFC. 20 C.F.R. § 416.920a(d)(3).

In this case, the ALJ’s decision does not indicate whether she applied this
prescribed technique to evaluate the functional limitations of Salinas’s mental impairment.
The regulations clearly require that the ALJ “document application of this technique” by
including “a specific finding as to the degree of limitation in each of the functional areas
in his decision.” 20 C.F.R. § 416.920a(e)(2)(emphasis added).° While the ALJ here
found that Salinas’s mental impairment is severe, she made no mention of the “technique”
and does not even allude to any of the four functional areas in her decision, let alone make
any specific findings. Even when the ALJ assessed Salinas’s mental impairment under the
listings - an assessment that ordinarily involves reference to the degree of limitation in
the four functional areas as the listings incorporate them in the “B” criteria, see 20 C.F.R.
Pt. 404, Subpt. P, App. 1, Listing of Impairments, 12.01 et seg. - she made no specific
finding as to any functional limitations. Instead, the ALJ briefly noted:

In this case, the claimant does not have an impairment or combination of
impairments that meets or equals the requirement of a listed impairment.

5 Under the former version of this regulation, the ALJ was required to document these
findings by completing a Psychiatric Review Technique Form and including it in his
opinion. The regulation was revised effective September 20, 2000. While it no
longer requires completion of the form, it nevertheless mandates the documentation
of the application of the technique with specific findings in the ALJ’s opinion. See
Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain
Injury, 65 Fed.Reg. 50746, 50774-50775 (August.21, 2000).

19


prescription for Trazodone. (/d.). She then discussed Salinas’s session with Dr. Tolstedt,
who diagnosed post-traumatic stress disorder exacerbated by socioeconomic and health
problems. (R. 17). The ALJ also noted that Dr. Tolstedt assigned Salinas a GAF score
of 50. (/d.).

The ALJ determined that the medical evidence did not support the existence of
limitations on Salinas’s capacity for work any greater than those she had found. (R. 17).
She stated that she considered the factors described in 20 C.F.R. § 416.926(c)(3) and
Social Security Ruling 96-7p. (R. 17). The ALJ felt Salinas exaggerated some of his
complaints, noting that his allegations of blackouts were inconsistent. (R. 17). She
explained that, although Salinas alleged he was unable to hold a job because he could not
get along with others, he also testified that his jobs had ended for various reasons other
than his conduct. (R. 17). The ALJ questioned why, given Salinas’s allegations of
disabling symptoms, the medical record did not include some statement by a treating
physician indicating Salinas’s ability to work was restricted. (/d.). On the other hand, the
ALJ noted, state disability agency physicians had found Salinas not disabled. (/d.).

The ALJ then addressed Salinas’s GAF score of 50, (R. 17-18). The ALJ indicated
that Dr. Tolstedt had seen Salinas just one time, and appeared to have accepted his account
of his inability to work without question. (R. 18). The ALJ found that nightmares were
the only symptom of Salinas’s post-traumatic stress disorder, and that there was no

indication that this had any affect on Salinas’s ability to work. (/d.). Finally, the ALJ also

13


source which should be accorded at least some weight, especially given the remainder of
the record in this case. 20 C.F.R. 416.927(d)(1)(“Generally, we give more weight to the
opinion of a source who has examined you than to a source who has not examined you.”).
The record includes the evaluation of only one other examining source, Dr. Eiger, who
assessed Salinas’s functioning on a similar, if slightly more restricted, level. Indeed, the
record does not even include a conflicting assessment of Salinas’s mental impairment from
a non-examining source: the state disability agency physicians reviewed the medical record
prior to any assessment of Salinas’s psychological state. The fact that Dr. Tolstedt may
have examined Salinas on just one occasion is an insufficient reason, given this record, to

reject her assessment of Salinas’s functional limitations.’

6(.. continued)

states that Salinas was not under any psychiatric treatment other than “being followed
at [WSVA] for care of physical health and for psychiatric medication.” (R. 297). Dr.
Tolstedt makes no mention that she was treating Salinas on an ongoing basis, or that
she had seen him any more than the one time reflected in her report. Finally, Dr.
Tolstedt titles her report as an “intake assessment,” suggesting that it reflected the
first time she saw Salinas. For the purposes of this opinion, however, the court
assumes that Dr. Tolstedt examined Salinas on just one occasion.

7 Salinas argues that if the ALJ had concerns about whether Dr. Tolstedt’s report was
based on a single interview or on an uncritical acceptance of Salinas’s complaints,
the ALJ should have contacted Dr. Tolstedt. (Memorandum in Support of Plaintiff's
Motion for Summary Judgment, at 4, 6). The regulations and rulings require an ALJ
to contact a treating physician before rejecting his or her opinion under two
circumstances: (1) when the evidence from the treating physician or other medical
source is “inadequate for [the Administration] to determine whether [the claimant is}
disabled,” 20 C.F.R. § 416.1512(e), and (2) when the treating source provides an
opinion on an issue reserved to the Commissioner, and the basis for the opinion is not
clear, SSR 96-5p, 1996 WL 374183, at * 6. Because the court assumes, for the

(continued...)

23



sharp, intermittent, cramping and pulling sensation in his legs. (/d.). Salinas claimed to
have experienced blackouts twice a month for the preceding two years. (/d.). Dr. Nave
noted that Salinas had a history of hypertension, and that his blood pressure was under fair
control with medication. (R. 198, 201). Physical examination was essentially normal,
with the exception of Salinas’s knees and lower back. R.198-200). Dr. Nave found
moderate degenerative joint disease in Salinas’s knees, but no swelling, tenderness, or
redness. (R. 199). Salinas’s range of motion in his lumbar spine was limited to 80 out of
90 degrees on flexion; there were no other range of motion limitations. (R. 200). His grip
strength was 5/5 bilaterally. (/d.). Mental status was normal. (/d.). Dr. Nave diagnosed
chronic low back pain, and suggested radiological testing to confirm the origin. (/d.). The
doctor also indicated that the pulling and cramping in Salinas’s legs might be secondary
to his back problem. (R. 201). He thought Salinas’s blackouts might be consistent with
angina. (Id.).

On August 15, 2001, Salinas underwent an EEG at WSVA. (R. 157). There was
no evidence of any abnormality, and no epileptic discharges were seen. (/d.). The results
of a thallium stress test performed on September 17, 2001, were described as “probably
normal.” (R. 222). There was no evidence of ischemia or infarction. (/d.). When
Salinas returned to WSVA on October 19, 2001, the attending physician acknowledged that
all test results had been negative for any evidence of syncope or seizures. (R. 221). At

that time, Salinas said he had not had an episode since his release from prison. (/d.).

4



For example, the arthritis in the claimant’s cervical and lumbar spine has not
resulted in neurological deficits, as tequired by section 1.04,

(R. 14). Thus, there is nothing in the ALJ’s decision that approaches compliance with the
Tegulation’s requirement of specific findings as to the degree of limitation in the four
functional areas. This failure to follow the applicable regulations and document the
application of the “special technique” amounts to an error of law that necessitates a remand
of this case to the Commissioner.

2.

While the ALJ’s failure to follow 20 C.F.R. § 416.920a and apply the “special
technique” to evaluate Salinas’s mental impairment warrants a remand in and of itself, it
also raises doubts about her analysis of the evidence regarding that impairment. In
particular, it calls into question the ALJ’s treatment of the two GAF scores that are part
of the medical record: a 45, which Dr. Eiger assigned on August 12, 2002, and a 50,
which Dr. Tolstedt assigned on November 12, 2002. The ALJ failed to consider Dr.
Eiger’s assessment, and rejected Dr. Tolstedt’s assessment. Both scores are indicative of
an individual with serious symptoms - such as suicidal ideation or obsessive rituals - or
a serious impairment in social or occupational functioning - such as having no friends,
or being unable to keep a job. These are the types of limitations on functioning that the
“special technique” specifically addresses, but the ALJ failed to adequately consider them

here.

20



consciously attempted to describe symptoms or portray limitations that are

not actually present in order to increase the chance of obtaining benefits.

(R. 18 (citations omitted)). According to the ALJ, then, Dr, Tolstedt’s assessment of
Salinas’s level of functioning was worthy of little weight because it was the product of a
single visit and reflected an uncritical acceptance of Salinas’s complaints, which the ALJ
felt were exaggerated based on the other psychiatric evidence in the record. Given the
ALI’s failure to consider the GAF score Dr. Eiger assigned Salinas - which, at 45, is
consistent with Dr. Tolstedt’s assessment - the ALJ’s reasoning is unconvincing.

An ALJ can reject an examining medical source’s opinion only for reasons
supported by substantial evidence in the record. Gudgel v. Barnhart, 345 F.3d 467, 470
(7TM Cir. 2003). Under the regulations, the ALJ must generally consider whether an
examining source’s opinion is supported by evidence, is consistent with the medical
record, and whether that source is a specialist in the relevant area. 20 C.F.R. 416.927(d).
Here, the ALJ's first criticism of Dr. Tolstedt’s assessment was that it was unconvincing
because it was based on a single visit. This might have been the case - although there is

some evidence to the contrary ~ but it was nevertheless the product of an examining

6 — Salinas’s testimony that he had been seeing Dr. Tolstedt on a weekly basis beginning
in August of 2002 was fairly specific, including times and description of the sessions.
(R. 36-37). A note from WSVA indicates he had an appointment for August 22,
2002. (R. 260). While there are no clinical notes regarding such treatment in the
record, Dr. Tolstedt does refer to notes in the cover sheet for her November 12, 2002
assessment of Salinas. (R. 295). On the other hand, in that same report, Dr. Tolstedt
(continued...)

22



C. Analysis

Salinas challenges the ALJ’s decision on three grounds, all of which have to do with
evidence regarding his mental impairment. First, he argues that the ALJ ignored certain
evidence in the record regarding his mental impairment, specifically, Dr. Eiger’s report
dated August 12, 2002. Second, Salinas contends that the evidence pertaining to his
mental impairments contradicts the limitations the ALJ found on his capacity for light
work. Finally, according to Salinas, the ALJ failed to perform her duty of fully
developing the record because she did not contact Dr. Tolstedt to question her about
Salinas’s treatment. Before addressing Salinas’s concerns, however, the court notes that
in evaluating Salinas’s mental impairment, the ALJ failed to follow the regulation
applicable to the assessment of mental impairments.

1

The Commissioner is bound by her own regulations and rulings. Pope v. Shalala,
998 F.2d 473, 486 (7" Cir. 1993). In cases where a plaintiff presents evidence that he
suffers from a mental impairment, those regulations prescribe a “special technique” the
ALJ must follow. 20 C.F.R. 416.920a(a). Under the special technique, the ALJ must
first evaluate the plaintiff’s pertinent symptoms, signs and laboratory findings to determine
whether he has a medically determinable mental impairment(s). 20 C.F.R.§
416.920a(b)(1). If so, the ALJ must then rate the degree of functional limitation resulting

from the impairment(s). § 416.920a(b)(2). This entails a consideration of such factors as

17


what had happen because he blacked out. (R. 29). Salinas also related that he was
separated from his wife, and said that she had had him arrested - wrongfully - more than
once for hitting her. (R. 29).

According to Salinas, he suffers constant pain in his lower back. (R. 32). He also
said that, despite surgery, he continued to have problems with his Tight knee. (R. 32-33).
It was still tender, Salinas explained, and he was not sure when it would give out. (R. 33).
He said that he experiences blackouts - most recently, a month and a half before the
hearing ~ which begin with chest pains and render him unconscious. (id.). The chest
pains are sudden and sharp. (R. 34). Salinas said these episodes began when he was
incarcerated after the fight with his brother. (R. 40). He said he had seven blackouts
while he was in prison, and two more since he has been out. (R. 40-41). According to
Salinas, it took him about a half-out after a blackout to gain focus again. (R. 44). Salinas
also stated that he would be having surgery for prostate cancer about a month after the
hearing. (R. 33).

Salinas testified that he had been seeing a psychologist, Dr. Tolstedt, on a weekly
basis since August of 2002. (R. 36). He described these sessions as involving seeing a
movie with a group, then talking with Dr. Tolstedt individually for about an hour. RR.
37). He said the medication he was taking, Trazodone, helped him sleep but did not

prevent him from dreaming about Viet Nam. (R. 31, 37, 43). Salinas stated he had these


normal, (/d.). An x-ray of Salinas’s lumbosacral spine demonstrated spurs at the L4-L5
level, and mild osteopenia.'! (R. 230-31).

During his April 17, 2002 visit to WSVA, Salinas reported that his lower back and
knee pain were stable (R. 233). By May 6, 2002, however, he said that his right knee was
locking all the time. (R. 234). Salinas underwent an MRI of his right knee on May 13,
2002, which was consistent with a tear of the posterior horn of the medial and lateral
meniscus.” (R. 235). On June 6, 2002, Salinas underwent arthroscopic surgery on his
right knee. (R.243-46). Surgeons were unable to find any tears in the meniscus, but noted
chondromalacia’ changes. (R. 245).

Salinas developed some swelling in both feet, and a rash on his right ankle, and
sought treatment at the WSVA on August 7, 2002. (R. 253-54). On August 12, he
reported that the rash was recurring, and lasted for two to three days. (R. 255).
Thereafter, a social worker discussed Salinas’s unemployment with him, and noted that in
the last year, Salinas had not checked with his physician to determine what type of work
he was capable of performing. (R. 256). Salinas made various excuses about not being

able to work, despite having gone a year without any income. (/d.). Salinas stated that

'  Osteopenia is a decrease in bone mass. DORLAND’S ILLUSTRATED MEDICAL
DICTIONARY, at 1202 (28" ed. 1994).

2 The meniscus is a crescent-shaped disk of fibrocartilage in the knee, attached to the
tibia. DORLAND’S, at 1013.

3 Chondromalacia is a softening of articular cartilage, most commonly in the knee,
resulting in pain and crepitus. DORLAND'S, at 321.

6



In connection with Salinas’s application for SSI, a state disability agency physician
reviewed the preceding medical records and, on December 4, 2001, found that Salinas
could occasionally lift or carry up to fifty pounds, frequently lift or carry up to twenty-five
pounds, stand or walk about six hours of an eight-hour workday, sit about six hours of an
eight-hour workday, and push or pull hand or foot controls without limitation. (R. 204-
211). On February 7, 2002, a second state disability agency physician conducted a similar
review, and concurred in that assessment. (R. 210).

On January 10, 2002, Salinas went to the WSVA, and reported suffering low back
and leg pain every second or third night, with soreness lasting a few days. (R. 227). The
“drawer test” was negative for torn ligaments in the knees. (/d.). The attending physician
recommended aspirin and Tylenol for leg cramps at night. (R. 228).

Salinas had a depression screening at the WSVA on January 17, 2002. (R. 228).
He indicated that he had been experiencing symptoms of depression, including sadness and
loss of interest in things he formerly cared about. (/d.). The attending physician
encouraged Salinas to become more physically active. (/d.). That same day, the doctor
noted that Salinas’s leg cramping had responded well to night time medication. (R. 229).
X-rays of Salinas’s right knee, performed on February 4, 2002, were normal. (R. 232).
On April 17, 2002, Salinas returned to WSVA with complaints of lower back pain. (R.

230). Neurological examination - assessing strength, reflexes, and sensation - was


the quality and level of the plaintiff's overall functional performance, any episodic
limitations, the amount of supervision or assistance he requires, and the settings in which
he is able to function. 20 C.F.R. § 416.920a(c)(2). The ALJ must rate the plaintiff's
degree of functional limitation in four broad functional areas: activities of daily living;
social functioning; concentration, persistence, or pace; and episodes of decompensation.
20 C.F.R. § 416.920a(c)(3). In the first three functional areas (activities of daily living;
social functioning; and concentration, persistence, or pace), the ALJ employs a five-point
scale to rate the degree of limitation: none, mild, moderate, marked and extreme. To rate
the degree of limitation in the fourth functional area (episodes of decompensation), the ALJ
employs a four-point scale: none, one or two, three, four or more. The last point on each
scale represents a degree of limitation that is incompatible with the ability to do any gainful
activity. 20 C.F.R. § 416.920a(c)(4). If the ALJ rates the degree of limitation in the first
three functional areas as “none” or “mild,” and “none” in the fourth area, she generally
may conclude that the impairment(s) is not severe, unless the evidence otherwise indicates
that there is more than a minimal limitation in the plaintiff’s ability to do basic work
activities. 20 C.F.R. § 416.920a(d)(1). If the mental impairment(s) is severe, the ALJ will
then determine if it meets or is equivalent in severity to a listed mental disorder by
comparing the medical findings and the ratings of the degree of functional impairment to

the criteria of the appropriate listing. 20 C.F.R.§ 416.920a(d)(2). If the plaintiff's

18


He said he was unable to find employment since that time, because he had been unable to
perform manual labor. (/d.). He also said he was afraid to drive because of his blackouts.
(Id.). Salinas tied his depression to his inability to draw an income and support his
children. (/d.). He stated that he was separated from his wife, and told Dr. Tolstedt that
she had had him arrested several times for domestic battery, although he had never hit her.
(d.). Salinas explained that his imprisonment stemmed from an incident when his brother
pulled a knife on him; he was able to wrest it away from his brother and stab him. (id.).
Salinas said he distrusts most people, and has to monitor his anger carefully. (/d.). Dr.
Tolstedt diagnosed post-traumatic stress disorder. (R. 300). She assigned a GAF score
of 50. (id.). According to Dr. Tolstedt, Salinas often had periods of moderate
dysfunction, and his health problems exacerbated his psychological symptomology. (id.).
B. Plaintiff’s Testimony

At the administrative hearing, Salinas testified that, over the preceding fifteen years,
he had not worked at any job for very long. (R. 27). He said he had difficulty getting
along with co-workers, or people in general, because they tended to make him angry. (R.
27, 29). Salinas testified that he does not socialize, likes being left alone, and is afraid of
getting into a fight if someone aggravates him. (R. 29, 31). He has two friends, whom
he visits about once a week or every two weeks. (R. 47-48).

Salinas admitted he was arrested and imprisoned for stabbing his brother. (R. 28).

Explaining this incident as self defense, Salinas testified that he could not recall exactly

8


The ALJ did provide an additional criticism of Dr. Tolstedt’s assessment: that it
reflected an uncritical acceptance of Salinas’s complaints. According to the ALJ, Dr.
Tolstedt should not have accepted Salinas’s allegations because he was not credible. As
an example, the ALJ noted that Salinas’s examining psychiatrist, Dr. Eiger, found that
Salinas was not suicidal despite Salinas’s claim of having suicidal thoughts. Again,
however, the ALJ neglected to mention Dr. Eiger’s also assigned Salinas a GAF score of
45. While Dr. Eiger may not have believed Salinas was suicidal, he did appear to believe
that Salinas was limited to a similar degree that Dr. Tolstedt found. As already noted, the
ALI may not select and discuss only that evidence that favors her ultimate conclusion.
Herron, 19 F.3d at 333. Here, however, the ALJ chose to discuss only those portions of
Dr. Eiger’s report that she felt undermined Dr. Tolstedt’s assessment of Salinas’s
functioning. In so doing, the ALJ ignored the fact that the only two examining sources to
assess the effect Salinas’s mental impairment had on his level of functioning arrived at
consistent conclusions.

3.

The ALJ in this case failed to follow the regulation that governs the evaluation of

mental impairments, 20 C.F.R. § 416.920a. For this reason alone, a remand of this case

is warranted. Additionally, however, the court finds that the ALJ’s failure also adversely

1(...continued)
purposes of this opinion, that Dr. Tolstedt examined Salinas ona single occasion and
remands this case for other reasons, it need not address this issue.

24


Minute Onder Form (06/97)
s

” \se United States District Court, Northern District of Illinois

rf ao Ste Nan R. Nolan mses
CASE NUMBER 03 C 1330 DATE 7/19/2004
CASE Alfredo J. Salinas vs, JoAnne B, Barnhart
TITLE
[In the following box (&) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of he motion bing presented]
DOCKET ENTRY:
(1) o Filed motion of { use listing in “Motion” box above.}
(2) oO Brief in support of motion due
(3) Qa Answer brief to motion due___. Reply to answer brief due.
(4) Oo Ruling/Hearingon set for____att
(5) Oo Status hearing[held/continued to] {set for/re-set for]on__——sset for at
(6) ia} Pretrial conference[held/continued to] [set for/re-set for}on__—ssetfor__——sat_—
(7) Do Trial[set for/re-set for]on___—_aat
(8) Oo [Bench/Jury trial] [Hearing] held/continuedto_ at
(9) O . This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) O)Local Rule 41.1 OFRCP41(a\(1) CFRCP41(a)(2).

ao [Other docket entry] Plaintiff's Motion for Summary Judgment [9-1] is granted and this case is
hereby remanded to the Commissioner for further proceedings consistent with this opinion. Defendant’s
Motion for Summary Judgment [10-1] is denied. Enter Memorandum Opinion and Order.

al) @f [For further detail see order attached to the original minute order.]
‘No notices required, advised in open court.

No notices required.

a | Notices mailed by judge's staff.
Notified counsel by telephone.
Docketing to mail notices.

7_| Mail A0 450 for. jynod £9Kisia ‘sn
Copy to judge/magistrate judge. WwITD
courtroom QO stWY 12 WF NO0Z
SRB deputy’s s
initi Pewtnce a a ten ber
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central Clerk’s Office a mailing deputy initials



A

operate dangerous machinery, could perform any work in the regional economy. (R. 53).
The VE indicated that there were 11,000 assembler jobs and 8,000 packager jobs in the
Chicago area that such an individual could perform. (R. 54). The ALJ then asked
whether a hypothetical individual with those same limitations, who was also unable to
perform complex or detailed tasks, or work with the general public or closely with others,
could perform any work in the regional economy. (/d.). The VE explained that the types
of work she had already suggested required proximity with others, but not interpersonal
interactions. (R. 54-55). Next, the ALJ asked whether an additional restriction of needing
to change positions every ten to twenty minutes would affect the occupational base. {R.
55). The VE felt that such an individual would not be able to maintain a regular work
routine. (R. 55).
D. The ALJ’s Decision

The ALJ found that Salinas had not engaged in substantial gainful activity since he
filed for benefits on July 12, 2001. (R. 14, 19). Next, she determined that Salinas had
several severe impairments: hypertension, a history of syncopal episodes, depression with
post-traumatic stress disorder, degenerative arthritis in the knees, and arthritis in the
lumbar and cervical spine. (R. 14). These impairments, according to the ALJ, met the
Agency’s requirement that a severe impairment significantly limit the ability to perform
basic work activities. (Id.). See 20 C.F.R. § 416.920(c). The ALJ further determined,

however, that none of these impairments, either singly or in combination, met or equaled

ll



”

nightmares every other night. (R. 43). In order to clear his head afterward, Salinas said
he would go to the lakefront. (R. 44).

Salinas testified that he could only walk about four blocks at a time, however, and
that he would sometimes catch a bus after that. (/d.). He thought he could sit for about
ten or fifteen minutes before having to change positions, and stand for about fifteen or
twenty minutes before having to walk around. (R. 50). Salinas estimated that he could
lift about ten pounds. (R. 51). He said he was unable to do any chores around the
apartment because of his back. (R. 44-45). According to Salinas, his medication does not
help his back pain much. (R. 45). He did state, however, that the medication for his leg
was working. (R. 46). About all he did during the day, he said, was read or watch TV.
(R. 46-47). Salinas stated that he accompanied his brother to the laundromat and grocery
store. (R. 47). He also stated that he went grocery shopping alone sometimes, for “light
stuff.” (R. 47).

C. Vocational Expert’s Testimony

The VE testified after Salinas, and both she and the ALJ assumed, based on
Salinas’s sporadic work history in the preceding fifteen years, that Salinas had no past
relevant work. (R. 52-53). The ALJ asked whether a hypothetical individual of the same
age, education, and work background as Salinas, who could lift twenty pounds
occasionally, ten pounds frequently, sit or stand for six hours in a workday, and walk

occasionally, but who could not climb stairs or ladders, work at unprotected heights, or

10



he had suicidal thoughts, and appeared emotionally unstable. (/d.). He was referred for
psychological counseling. (/d.).

Salinas then saw Dr. Eiger, the attending psychiatrist that day. Dr. Eiger noted
Salinas was depressed, but not at all suicidal. (R. 255). Dr, Eiger felt Salinas’s condition
might improve if he could get adequate sleep. (/d.). During the session, Salinas
complained of feeling depressed and helpless due to his physical limitations. (R. 259).
He related that he had recently been experiencing flashbacks and nightmares about Viet
Nam. (/d.). The psychiatrist diagnosed depression and post-traumatic stress, and assigned
a GAF score of 45.‘ (/d.). He started Salinas on a prescription of Trazodone, for
depression. (R. 255). When Salinas returned for counseling on August 20, 2002, the
clinical nurse at WSVA referred Salinas to a veteran center closer to his home, and set up
an appointment with psychologist Betsy Tolstedt for August 22, 2002. (R. 260). There
is no evidence regarding that appointment in the record.

In a report dated November 12, 2002, psychologist Betsy Tolstedt provided a Vet
Center Intake Assessment regarding Salinas’s mental state. (R. 295-300). She reported

that Salinas related having nightmares about Viet Nam since his imprisonment. (R. 299).

‘ The GAF score is a subjective determination, ona scale of 100 to 1, of the clinician’s

judgment of an individual’s overall level of psychological, social, and occupational
functioning. American Psychiatric Association, Diagnostic and Statistical Manual
of Mental Disorders (DSM-IV-TR) at 32 (rev. 4th ed.2000). A GAF score of 41-50
indicates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) OR any serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job)." Jd. at 34.

7



Contrary to Salinas’s argument (Memorandum in Support of Plaintiff's Motion for
Summary Judgment, at 4), the ALJ did not completely ignore Dr. Eiger’s report of August
12, 2002. She did, however, fail to mention that Dr. Eiger assessed Salinas’s level of
functioning in that report, and assigned him a GAF score of 45. While it is true that the
ALJ need not provide a written evaluation of every piece of evidence in the record,
Scheck, 357 F.3d at 700, this omission becomes significant when it is considered with the
ALJ’s treatment of the other GAF score in the record, the score of 50 that Dr. Tolstedt
assigned Salinas on November 12, 2002.

Dr. Tolstedt - like Dr. Eiger - assigned Salinas a GAF score that was indicative
of an individual with serious symptoms or a serious impairment in social or occupational
functioning. In her consideration of Dr. Tolstedt’s November 12, 2002 report, however,
the ALJ found the score insignificant for the following reasons:

First, contrary to the claimant’s assertion of an ongoing treatment
relationship, the evidence supports that the psychologist evaluated the
claimant one time. Second, it appears that the psychologist accepted the
claimant’s representation of an inability to work without question. That self-
assessment by the claimant is not accepted, as much of the claimant's
assertions seemed geared to the purpose of obtaining disability benefits.
Parenthetically, although the psychological assessment states without detail
that the claimant has PTSD symptoms, the only symptom he described was
nightmares. The claimant testified that he deals with the nightmares by
leaving home and walking to the lake. Work would have a similar result.
The record also includes a VA psychiatrist’s statement that suggests that the
claimant was engaging in possible misrepresentation. As noted, the claimant
told his dermatologist that he wanted to see a psychiatrist, stating that he had
suicidal thoughts. However, the examining psychiatrist mentioned that he
was not at all suicidal, This evidence suggests that the claimant has

21



A. Medical Evidence

The relevant medical evidence in this case dates from July 12, 2001, the day Salinas
applied for SSI and shortly after his release from prison. (R. 155). At that time, he
sought treatment at the West Side Veteran’s Administration (“WSVA”), reporting that he
had experienced two syncopal episodes while incarcerated. (/d.). When he returned the
next day with his medical records from the prison, the attending physician at WSVA noted
that there was no mention of any syncopal episodes. (/d.). The physician also noted that
Salinas had a history of chronic low back pain, and hypertension. (R. 155-56). Because
Salinas’s blood pressure was elevated at the time, the physician prescribed Lisinopril, in
addition to the Atenolol Salinas was already taking. (R. 156).

On July 27, 2001, Salinas returned to WSVA, complaining of fatigue and occasional
dizziness. (/d.). He reported that he had a hard time walking a mile, but that he pushed
himself to walk six miles, which “wipe[d] him out.” (/d.). The attending physician noted
that Salinas’s blood pressure was under better control, and scheduled several tests in the
hope of confirming Salinas’s reports of seizures. (R. 157). Salinas underwent a CT scan
of the brain on July 31, 2001, which was interpreted as normal. (R. 220).

On August 6, 2001, Dr. Kenneth Nave examined Salinas at the request of the state
disability agency. (R. 197-203). Salinas reported that he had been suffering low back pain
over the preceding seventeen years, and that it had worsened recently, (R. 197). Salinas

related that he had been told he had a herniated disc. (/d.). He also complained of a

3



noted that while Salinas had mentioned he had suicidal thoughts during a WSVA visit,
prompting a psychiatric referral to Dr. Eiger, Dr. Eiger found Salinas was “not at all
suicidal.” (/d.). Again, the ALJ found that the evidence did not warrant any greater
restrictions on Salinas’s capacity for work than she had found.

The ALJ went on to consider Salinas’s age, education, and work experience, as
those factors are categorized in the Medical-Vocational Guidelines, Appendix 2, Subpt.
P, of the Agency’s regulations. She found that Salinas was closely approaching advanced
age, had a high school equivalency degree, and had no past work experience. (R. 18).
Assuming Salinas had a capacity for a full range of light work, the ALJ noted that the
Medical-Vocational Guidelines would direct a finding that Salinas was not disabled. (/d.).
See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 202.13. Considering that Salinas had
additional restrictions on his ability to perform light work, however, the ALJ noted that
the VE testified that an individual with Salinas’s limitations could perform work that
existed in significant numbers in the regional economy. (R. 18, 19). Based on that
testimony, the ALJ concluded that Salinas was not disabled, and was not entitled to SSI
under the Act. (R. 18-19).

DISCUSSION
A. Standard of Review
The applicable standard of review of the Commissioner’s decision is a familiar one.

The court must affirm the decision if it is supported by substantial evidence. 42 U.S.C.

14



and afford the plaintiff a meaningful judicial review. Scott v, Barnhart, 297 F.3d 589, 595
(7 Cir. 2002).
B. Five-Step Inquiry
The Social Security Regulations provide a five-step sequential inquiry to determine
whether a plaintiff is disabled:
1) is the plaintiff currently unemployed;
2) does the plaintiff have a severe impairment;

3) does the plaintiff have an impairment that meets or equals one of the
impairments listed as disabling in the Commissioner’s regulations;

4) is the plaintiff unable to perform his past relevant work; and

5) is the plaintiff is unable to perform any other work in the national
economy.

20 C.F.R. §§ 404.1520; Scheck v. Barnhart, 357 F.3d 697, 700 (7" Cir. 2004). An
affirmative answer leads either to the next step or, on steps 3 and 5, to a finding that the
plaintiff is disabled. 20 C.F.R. §416.920; Stein v. Sullivan, 892 F.2d 43, 44 (7" Cir.
1990). A negative answer at any point, other than step 3, stops the inquiry and leads to
a determination that the plaintiff is not disabled. 20 C.F.R. §416.920; Stein, 892 F.2d at
44. The plaintiff bears the burden of proof through step four; if it is met, the burden shifts

to the Commissioner at step five. Brewer v. Chater, 103 F.3d 1384, 1391 (7" Cir. 1997).

16



administrative hearing. (R. 39-40). On November 20, 2002, an administrative law judge
(“ALJ”) conducted a hearing at which Salinas, represented by counsel, appeared and
testified. (R. 21-57). In addition, Linda Gels testified as a vocational expert. (R. 52-56).
In a decision dated November 29, 2002, the ALJ found that Salinas was not disabled
because he retained the ability to perform a significant number of jobs in the national
economy. (R. 13-20). This became the final decision of the Commissioner when the
Appeals Council denied Salinas’s request for review of the decision on January 17, 2003.
(R. 7-8). See 20 C.F.R. §§ 416.1455; 416.1481. Salinas has appealed that decision to the
federal district court, where the parties have consented to the jurisdiction of the Magistrate
Judge pursuant to 28 U.S.C. § 636(c).
FACTUAL BACKGROUND

Salinas was born on April 15, 1949, making him fifty-three years old at the time
of the ALJ’s decision. (R. 98). He has a high school equivalency degree. (R. 39). He
served with the Marines in Viet Nam, and was honorably discharged in 1969. (R. 39,
105-106). The bulk of Salinas’s work experience has been as a truck driver (R. 113, 121,
135), although he has little work history over the last fifteen years. (R. 104, 113, 121).
In the 1990s, he worked briefly as a day laborer stocking shelves, and as decorator setting
up trade show displays. (R. 121-24). He lost the trade show job when he was
incarcerated for stabbing his brother in an altercation. (R. 28, 38-39). He has lived with

another brother since his release. (R. 38).


affected her consideration of the evidence pertaining to Salinas’s mental impairment. Two
examining sources - a psychiatrist and a psychologist - provided similar assessments of
Salinas’s functional limitations. Rather than consider both under 20 C.F.R. § 416.920a,
the ALJ ignored one and rejected the other for reasons that reflect a selective consideration
of only that evidence that favored the ALJ’s ultimate conclusion. As a result, the ALJ
failed to adequately consider an entire line of evidence regarding the effects of Salinas’s
mental impairment. When the ALJ ignores an entire line of evidence that is contrary to
the ruling, it is impossible for a reviewing court to tell whether the ALJ’s decision rests
upon substantial evidence. Golembiewski v. Barnhart, 322 F.3d 912, 917 (7* Cir. 2003).
This, too, warrants a remand of this case to the Commissioner.
CONCLUSION

For the foregoing reasons, the court grants summary judgment in favor of the

plaintiff, Alfredo Salinas, and remands this case to the Commissioner for further

proceedings consistent with this opinion.

ENTERED: YO“ 2. hhetww

NAN R. NOLAN
UNITED STATES MAGISTRATE JUDGE

DATE: July 19, 2004



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
ALFREDO J. SALINAS, )
)
Plaintiff, )
vs. No. 03 C 1330 Ott Fe.

Nan R.Nolan, Jy. |

JO ANNE B. BARNHART, Magistrate Judge “2 2004
Commissioner of Social Security, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Alfredo Salinas seeks review of the final decision of the Commissioner
(“Commissioner”) of the Social Security Administration (“Agency”) denying his
application for Supplemental Security Income (“SSI”) under Title XVI of the Social
Security Act (“Act”), 42 U.S.C. §§ 1603, 1614(a)(30). This matter is before the court on
the parties’ cross-motions for summary judgment. Salinas asks the court to reverse and
remand the Commissioner’s decision, while the Commissioner seeks an order affirming
the decision denying Salinas’s application.

PROCEDURAL HISTORY

Salinas filed an application for SSI on July 12, 2001, alleging that he had been
disabled since May 1, 1999, due to pain in his back and legs, and blackouts.
(Administrative Record (“R.”) at 98-100, 112). The Agency denied his application at the

initial levels of administrative review (R. 60-63, 65-68), and he requested an

Va



an impairment listed in the Agency’s regulations as disabling. (R. 14, 19). See20C.F.R.
Pt. 404, Subpt. P, App. 1, Listing of Impairments.

Next, the ALJ assessed Salinas’s residual functional capacity (“RFC”). The ALJ
found that Salinas retained the capacity to lift twenty pounds occasionally and ten pounds
frequently, sit or stand for six hours each in a workday, and walk occasionally, but could
not climb stairs or ladders, work at unprotected heights or operate dangerous machinery,
perform complex or detailed tasks, or work with the general public or closely with others.
R. 14, 19). The ALJ reviewed the medical evidence, discussing Salinas’s course of
treatment at WSVA. (R. 15-17). She noted that the etiology of Salinas’s complaints of
chest pain and blackouts was undetermined, with an EEG being normal. (R. 15). She
further noted that, in reference to Salinas’s back and leg pain, Salinas had a near normal
range of motion in his lumbar spine, and no neurological deficits. (R. 15-16). The ALJ
acknowledged that lumbar spine x-rays showed spurring at L4-L5 and evidence of
osteopenia. (R. 16). She also acknowledged that Salinas underwent right knee surgery
for a torn meniscus, but that the actual problem had been chondromalacia. (R. 16).

The ALJ then turned to Salinas’s mental impairments. She noted that he had been
referred to a psychiatrist on August 12, 2002, when he had given the impression he might
be suicidal during one of his visits to WSVA. (R. 16). She also noted that the psychiatrist
who then saw Salinas did not find him to be suicidal. (Jd.). The ALJ acknowledged that

Salinas was diagnosed with depression and post-traumatic stress disorder, and given a

12


§$§ 405(g); 1382(c)(3). Substantial evidence is such relevant evidence as a reasonable mind
might accept to support a conclusion. Binion v. Chater, 108 F.3d 780, 782 (7th Cir.
1997), citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971). The
court may not reweigh the evidence, or substitute its judgment for that of the Social
Security Administration. Binion, 108 F.3d at 782. Where conflicting evidence would
allow reasonable minds to differ as to whether the plaintiff is disabled, the Commissioner
has the responsibility for resolving those conflicts. Id. Conclusions of law are not entitled
to such deference, however, so where the Commissioner commits an error of law, the
court must reverse the decision regardless of the volume of evidence supporting the factual
findings. Id.

While the standard of review is deferential, the court cannot act as a mere “rubber
stamp” for the Commissioner’s decision. Scott v. Barnhart, 297 F.3d 589, 593 (7" Cir.
2002). In order for the court to affirm a denial of benefits, the ALJ must have
“articulated” the reasons for her decision at “some minimum level.” Dixon v. Massanari,
270 F.3d 1171, 1176 (7th Cir.2001). This means that the ALJ “must build an accurate
and logical bridge from [the] evidence to [the] conclusion.” /d. Although the ALJ need
not address every piece of evidence, the ALJ cannot limit her discussion to only that
evidence that supports her ultimate conclusion. Herron v. Shalala, 19 F.3d 329, 333 (7"

Cir. 1994). The ALJ’s decision must allow the court to assess the validity of her findings

15