United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER 
I. SCHENKIER United States Magistrate Judge.
Alejandro Moreno ("claimant" or "Mr.
Moreno") has moved for summary judgment seeking reversal
or remand of the final decision of the Commissioner of Social
Security ("Commissioner") denying his claim for
Disability Insurance Benefits ("DIB") and
Supplemental Security Income ("SSI") (doc. # 16:
Pl.'s Mem, in Support of Sum. J.). The
Commissioner has filed her own motion seeking affirmance of
the decision denying benefits (doc. # 23: Def's
Mot. for Sum. J.). For the following reasons, Mr.
Moreno's motion for remand is denied and the
Commissioner's motion is granted, I.
March 30, 2007, Mr. Moreno filed a claim for DIB and SSI,
alleging that he became disabled on February 16, 2006, when
he fell off a scaffold at work (R. 150, 336). After his claim
was initially denied, he participated in a hearing on
December 12, 2009; the Administrative Law Judge
("ALJ") denied benefits and the Appeals Council
affirmed the denial on January 10, 2011 (R. 1-3, 18-39).
Claimant filed a complaint in the district court and the
Commissioner agreed to a voluntary remand; the case was
remanded to a new ALJ for further proceedings to reassess the
claimant's mental impairment in accordance with the
special technique at 20 CFR 404.1520a and 416.920a,
well as to reevaluate claimant's residual functional
capacity ("RFC") and the opinions of his treating
doctors (R. 810, 989). A new ALJ held a hearing on February 5,
2014, at which claimant (represented by counsel), a
vocational expert ("VE"), a medical expert, and
claimant's wife all testified (R. 863). On June 17, 2014,
the ALJ ruled that claimant was not disabled, and the Appeals
Council upheld the ALJ's determination, making it the
final opinion of the Commission (R. 790-93). See 20
C.F.R. § 404.981; Shauger v. Astrue, 675 F.3d
690, 695 (7th Cir. 2012).
Moreno contends that he is unable to work because of both
physical and mental impairments: various problems related to
pain in his lower back, legs and elsewhere, high blood
pressure, and depression that is a direct result of his
ongoing chronic pain (R. 180, 243). Mr. Moreno's initial
physical injury resulted from a 2006 fall off a scaffold that
was approximately five feet above the ground (R. 336). Mr.
Moreno alleges that his pain from the fall has not abated
over the years, and instead has worsened and spread,
eventually becoming so severe and pervasive that it both
prevents him from working and also causes severe depression
that contributes to his inability to hold a job (R. 621, 868,
makes three arguments in favor of remand: (1) the ALJ's
RFC determination was flawed because it did not include a
limitation for work involving only one-two step tasks and did
not account for his moderate restrictions in concentration,
persistence and pace; (2) the ALJ erred by failing to submit
five years of medical records from claimant's treating
psychologist and psychiatrist for consideration by the Agency
psychological consultant; and (3) the ALJ failed to consider
how the combined effects of claimant's impairments,
particularly his obesity, affected his ability to work.
Below, we set forth only those facts from the lengthy record
that are relevant to our decision.
respect to Mr. Moreno's physical pain, the longitudinal
medical record (between February 2006 and January 2014)
suggests that while Mr. Moreno's pain in his back and
extremities may have begun after his fall, his continued
discomfort did not necessarily arise from that particular
single injury, and persisted long after he recovered from his
fall. Moreover, as we describe below, the record shows that
after April 2007, Mr. Moreno's medical treatment for his
pain was primarily limited to medication management; his
prescriptions for pain medication were apparently refilled
during visits to several health clinics that were mostly
unrelated to his back impairment.
his back injury in February 2006, Mr. Moreno had an x-ray
immediately after the fall that showed no fracture or
subluxation and normal bone density (R. 334, 475). A second
x-ray taken three weeks later was also normal (R. 357). An
EMG performed in June 2006 revealed acute L4
radiculopathy. From the time of his accident until
December 2007, Mr. Moreno visited Advocate Christ Medical
Center ("Advocate") for treatment of all his
medical needs, including a diagnosis of diabetes, management
of his high blood pressure, and other acute issues (R.
440-485). He simultaneously received treatment for his pain
from orthopedist Richard Lim, M.D., of Midwest Orthopaedic
Consultants and underwent physical therapy for the first nine
months after his accident; the physical therapy provided slow
and only partial pain relief (R. 372-401).
Mr, Moreno continued to complain of back pain during the
first year after the accident, his doctors often could not
identify a consistent source of his discomfort (R. 375-77,
405). For example, in December 2006, ten months after his
injury, Mr. Moreno still complained of back pain even though
Dr. Lim noted that all diagnostic testing "failed to
reveal a source of his problems" (R. 376). Instead, Dr.
Lim concluded claimant's pain was myofascial in nature
(R. 379, 381). In April 2007, Dr. Lim noted that, based
on diagnostic testing, including several MRIs and another
EMG, Mr. Moreno was not a candidate for surgery (R. 377, 386,
395, 397). Instead, Dr. Lim referred Mr. Moreno to a
psychologist for chronic pain management and a pain doctor
for a possible epidural injection (Id.). Mr. Moreno
had a nerve block injection performed by a pain specialist in
April 2007 (R. 490). As described below, he also began seeing
therapist Enrique Gonzalez, Ph.D, and psychiatrist Walter
Pedemonte, M.D., for mental health treatment related to his
April 2007, Mr. Moreno's physical pain was treated
primarily with narcotics and other prescription and
over-the-counter medication (R. 381, 440, 447-49, 566).
Claimant's complaints of pain continued, but later
examinations continued to find no specific cause and he did
not display functional limitations. For example, at a
consultative examination in February 2008 in connection with
Mr. Moreno's claim for benefits, Liana Palocci, D.O.,
noted that Mr. Moreno had normal range of motion in his
cervical spine, knees, ankles and hips. He had a somewhat
limited range of motion in his lumbar spine but no
tenderness, and was able to squat and walk heel-to-toe (R.
536-37). Hilda Martin, M.D., the medical expert who testified
at Mr. Moreno's second hearing, concurred that Mr.
Moreno's spine injury was likely not the cause of his
ongoing pain, because he was able to squat and walk heel to
toe, which would be unlikely with a back injury (R. 906). Dr.
Martin also testified that when she has a patient like Mr.
Moreno, who complains of pain everywhere, she asks about
depression (R. 905).
Moreno continued to receive medical treatment from Advocate
Christ Medical Center between February 2008 and June 2012 (R.
1144-1267, 1666-1885). Notes from these appointments list up to
nineteen different medications Mr. Moreno was prescribed for
various physical and mental health issues (R. 1147). He
visited Advocate for a variety of reasons: management of his
diabetes, Bell's Palsy, pancreatitis, chest pain assessed
to be caused by hyperventilation, eye pain, and medication
refills; notes also mention chronic back pain and his
treatment for depression (R. 743, 1150, 1152, 1212-14, 1668,
1701). Despite the existence of notes mentioning Mr,
Moreno's back pain and pain medications, there is no
evidence that he underwent diagnostic testing or had medical
treatment for his back pain beyond that described above
during the first year after his accident.
and 2010, Mr, Moreno also visited Lawndale Christian Health
Clinic for management of his various physical issues,
particularly his diabetes and high blood pressure; during
these visits, Mr, Moreno also discussed his treatment for
depression and sometimes obtained medication refills for his
back pain (R. 564-631). A medical note from Advocate in
November 2010, states that claimant's wife informed the
clinic that he was "no longer being followed by Lawndale
Christian Center" (R. 1203).
respect to his mental health impairments, claimant began
seeing Dr. Gonzalez in April 2007, because Dr. Lim felt that
there was nothing else he could do physically for Mr. Moreno
(R. 375, 633). Mr, Moreno saw Dr. Gonzalez between one and
four times each month beginning in April 2007 and continuing
until at least June 2013 (R. 633-726, 2039). Initially, Dr.
Gonzalez diagnosed Mr. Moreno with "adjustment disorder
with depressed mood [and] pain disorder associated with
psychological factors" (R. 633). Two months later, in
June 2007, Mr. Moreno had an initial consultation with Dr.
Pedemonte who prescribed anti-depressants and other
psychiatric medications (R. 642, 756). From March 2008 until
the end of 2013, Mr. Moreno saw Dr. Pedemonte once a month
for medication management (R. 1927-1943, 2045). At the March
2008 appointment, Dr. Pedemonte diagnosed Mr. Moreno with
"severe depression secondary to accident" (R.
Gonzalez's treatment notes reflect that initially, Mr.
Moreno was unaware of the relationship between his chronic
pain and the fact that he was feeling depressed, but that he
eventually began to realize the connection (R. 635, 710).
Notes from throughout the treatment period show that Mr.
Moreno's mood fluctuated but that he reported feeling
better after his therapy sessions (640). On several
occasions, Mr. Moreno told Dr. Gonzalez that keeping busy and
maintaining a schedule and routine helped him manage his
depression and improve his outlook (R. 638, 649, 657, 676,
1197, 1980, 2000). Specifically, Dr. Gonzalez's notes
show that at different times throughout the claims period,
Mr. Moreno was able to care for his daughter while his wife
was at work, walk his daughter to school, prepare meals for
his wife, and generally establish a routine and calendar of
activities (Id.). While Mr. Moreno also complained
about feelings of hopelessness and lethargy, these symptoms
tended to ease whenever he was able to establish and maintain
a routine, set and follow through with short-term goals, and
engage in regular sleep (Id., 2001).
Pedemonte's notes from his appointments with Mr, Moreno
all follow the same, single paragraph format, which includes
sections for clinical summary, current mental status,
medication and side effects, and prognosis (R. 756-61,
780-89). These short forms are nearly identical from month to
month with respect to diagnosis (severe depression), mental
status,  and prognosis (fair) (R. 756-61).
Although the "clinical summary" sections from month
to month are nearly identical in diagnosing severe
depression, the clinical summary notes from August, October,
and November 2008 also state that "patient is showing
some degree of improvement" (R, 775-76). In December
2008, the clinical summary states that "[t]he patient is
responding well to medication. The patient is not (sic)
longer depressed. The patient is in a better mood, not (sic)
longer anxious pt is currently unable to sleep" (R.
776). The "current mental status" portion of this
note remains identical to earlier ones, assessing Mr. Moreno
with, inter alia, anxious affect, and a fair
October 2009, Dr. Pedemonte completed a mental health RFC for
Mr. Moreno that diagnosed him with depression and assessed
him as having a "moderately poor" prognosis, a GAF
of 40,  and a number of signs and symptoms of
depression, identified via check boxes (R.
780-81). Dr. Pedemonte also opined (via check
boxes) that Mr. Moreno had "no useful ability to
function" in all sixteen listed "mental abilities
and aptitudes needed to do unskilled work"
(Id.). When asked on the form to explain the
limitations falling within the three most limited categories,
Dr. Pedemonte did not respond (Id.).
the October 2009 RFC, Dr. Pedemonte's monthly treatment
notes about claimant continue to repeat the same information
for his current mental state and continue to assess
claimant's prognosis as "fair" (R. 1932-33). In
these notes, Dr. Pedemonte's "clinical summary"
repeats itself for 4-5 months and then changes to use
different language to describe claimant's depression for
another 4-5 months before changing again (R.
treatment notes from Dr. Gonzalez reflect that Mr. Moreno had
ups and downs in his mood and occasional suicidal ideations,
his fluctuations never led any medical professional to opine
that he needed hospitalization or more intense treatment
beyond weekly therapy sessions (R. 645, 661 -62, 715).
Claimant also told Dr. Gonzalez that he sometimes had
problems with memory and was trying to make changes at home
to improve his forgetfulness (R. 659, 683, 713). At many of
his appointments in 2007 and 2008, he reported having low
back pain, although he also reported improvement in his pain
at times (R. 635 - 680, 686, 721).
Moreno also underwent several psychiatric consultative
examinations with respect to his claim for benefits. First,
in August 2007, Mr. Moreno underwent a psychiatric
examination by Herman Langner, M.D., for the bureau of
disability determination services (R. 405). Dr. Langner
diagnosed claimant with depression - not otherwise specified,
and a GAF for 45-50 (R. 407). He noted in his report of the
examination that Mr. Moreno had some trouble with immediate
memory, but that it may have been the result of language
difficulties (R. 406). In September 2007, Margaret Wharton,
Psy.D, completed a mental health RFC based on Dr.
Langner's examination. She found Mr. Moreno to have mild
limitations in his ability to perform activities of daily
living and to maintain social functioning, and moderate
difficulties with concentration, persistence and pace (R.
418). Specifically, Dr. Wharton checked boxes that assessed
Mr. Moreno as having moderate limitation in the ability to
understand and remember detailed instruction, the ability to
carry out detailed instruction, and the ability to maintain
attention and concentration for extended periods (R. 419).
She assessed Mr. Moreno as being "not significantly
limited" in his ability to perform all other listed
activities concerned with understanding and
memory and sustained concentration and
persistence. In her written notes, Dr. Wharton
stated, inter alia, that Mr. Moreno's
"cognitive and attentional skills are intact and
adequate for simple one-two step work tasks" (R. 424).
February 2008, Mr, Moreno underwent another psychiatric
evaluation by DDS, this time by Michael Stempniak, Ph.D. Dr.
Stempniak diagnosed Mr. Moreno with major depressive disorder
and noted that he appeared to be of low average intelligence
and had some difficulty with memory and concentration when
asked to repeat digits and do basic math problems (R. 540,
542). Based on this examination, Commission psychologist
Tyrone Hollerauer, PsyD, completed a psychiatric review of
Mr. Moreno, assessing him as not having a severe impairment
(R. 542). Dr. Hollerauer diagnosed Mr. Moreno with
"Major Depression 'mild' in severity" (R.
545). With respect to the "Paragraph B" criteria,
Dr. Hollerauer checked the boxes that assessed Mr. Moreno as
having "mild" limitations with all three criteria -
activities of daily living, social functioning, and
concentration, persistence and pace" (R. 552).
October 2009, Mr. Moreno visited Lawndale Christian Health
Center and met with Michael Hansen, Psy.D, because he was
having suicidal thoughts (R. 621). This visit did not result
in a hospital admission; instead, Mr. Moreno agreed to
implement daily activities and behaviors he enjoyed, to track
his mood, and to work on relaxation exercises (R. 622).
opinion dated June 17, 2014, the ALJ followed the familiar
five-step process for determining disability, 20 C.F.R.
§§ 404.1520(a)(4) and 416.920(a). The ALJ found
that Mr. Moreno had the following severe impairments: lumbar
disc disease, myofascial pain syndrome, left knee pain,
obesity, and depression, but that none of them met or equaled
a listing (R. 813-14). The ALJ found that Mr, Moreno's
hypertension and diabetes were not severe, explaining that
the record shows that both conditions are well managed with
medication when Mr. Moreno was compliant, and that the single
visit Mr. Moreno had to the hospital for chest pain was
determined to be related to hyperventilation and ...