United States District Court, N.D. Illinois, Eastern Division
July 19, 2004.
ALFREDO J. SALINAS, Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: NAN NOLAN, Magistrate Judge
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.
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 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).
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). 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.
(Id.). 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. (Id.). 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. (Id.). 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." (Id.). 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. (Id.). He also complained of a sharp, intermittent, cramping and pulling sensation in his legs.
(Id.). Salinas claimed to have experienced blackouts twice a
month for the preceding two years. (Id.). 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. (Id.). Mental
status was normal. (Id.). Dr. Nave diagnosed chronic low back
pain, and suggested radiological testing to confirm the origin.
(Id.). 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
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. (Id.). 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. (Id.). 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. (Id.). 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. (Id.). 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. (Id.). The attending physician
encouraged Salinas to become more physically active. (Id.).
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 normal. (Id.). An x-ray of Salinas's lumbosacral spine
demonstrated spurs at the L4-L5 level, and mild
osteopenia.*fn1 (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.*fn2 (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*fn3 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. (Id.). Salinas stated that he had suicidal thoughts, and appeared emotionally unstable.
(Id.). He was referred for psychological counseling. (Id.).
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. (Id.). 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. (Id.). The psychiatrist diagnosed depression and
post-traumatic stress, and assigned a GAF score of 45.*fn4
(Id.). 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). He said he was unable to find employment since that time, because
he had been unable to perform manual labor. (Id.). 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. (Id.). 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. (Id.). 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. (Id.). 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 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 right 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.
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. (R. 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 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. (Id.). 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.
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 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. (Id.). 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 an impairment listed in the Agency's regulations as disabling.
(R. 14, 19). See 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing
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. (Id.). The ALJ acknowledged that Salinas was
diagnosed with depression and post-traumatic stress disorder, and
given a prescription for Trazodone. (Id.). 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. (Id.).
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. (Id.). On the other hand, the ALJ noted, state
disability agency physicians had found Salinas not disabled.
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. (Id.). Finally, the ALJ
also 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."
(Id.). Again, the ALJ found that the evidence did not warrant
any greater restrictions on Salinas's capacity for work than she
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. (Id.). 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).
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. § 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
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 (7th 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." Id.
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 (7th Cir. 1994). The ALJ's decision must allow the
court to assess the validity of her findings and afford the plaintiff a meaningful judicial review. Scott v.
Barnhart, 297 F.3d 589, 595 (7th 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
(7th 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 (7th 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 (7th Cir.
1997). 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
The Commissioner is bound by her own regulations and rulings.
Pope v. Shalala, 998 F.2d 473, 486 (7th 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 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 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).*fn5 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 seq. 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. For example, the arthritis in the claimant's cervical
and lumbar spine has not resulted in neurological
deficits, as required by section 1.04.
(R. 14). Thus, there is nothing in the ALJ's decision that
approaches compliance with the regulation'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.
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. 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
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 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 ALJ'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 (7th 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*fn6 but it was nevertheless the product of an
examining 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.*fn7 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 ALJ 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.
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 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 (7th Cir. 2003). This, too,
warrants a remand of this case to the Commissioner.
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