United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
R. Harjani, United States Magistrate Judge.
Jason B. seeks reversal of the final decision of
the Commissioner of Social Security, determining that he
experienced medical improvement and that his disability ended
on July 13, 2009. The Commissioner asks the Court to uphold
the ALJ's decision. Because substantial evidence does not
support the ALJ's mental RFC determination after the
closed period of disability, the Court reverses the ALJ's
decision on this ground and grants in part and denies in part
Plaintiff's Motion for Summary Judgment .
applied for disability insurance benefits alleging that he
had become disabled on November 5, 2007, following an
on-the-job back injury that resulted in a three-level spinal
fusion surgery. He alleged disability based on lower back
injury with failed back fusion, depression, and memory
problems. At the time of the alleged disability onset date,
Jason was 32 years old and had previously worked as a heavy
delivery truck driver. His application was denied initially
and on reconsideration. (R. 66-67, 73-8, 82). Following a
hearing at which a vocational expert (“VE”)
testified, the ALJ issued a decision concluding that Jason
had the residual functional capacity (“RFC”) to
perform a range of light work, and ultimately finding that
Jason was not disabled. Id. at 24-41, 42-65. After
the Appeals Council declined to review the ALJ's
decision, Jason sought judicial review of the agency's
decision. Id. at 9-14.
5, 2014, Magistrate Judge Jeffrey Cole reversed and remanded
the case to the Commissioner for further proceedings, finding
that the ALJ erred in relying on the state agency
physician's report. (R. 1241-47). On September 2, 2014,
the Appeals Council vacated the final decision of the
Commissioner and remanded the case to an ALJ “for
further proceedings consistent with the order of the
court.” Id. at 1257. The Appeals Council
instructed the ALJ to “offer the claimant the
opportunity for a hearing, take any further action needed to
complete the administrative record and issue a new
decision.” Id. at 1258. On March 25,
2015, the same ALJ held a second hearing. (R. 1172-1215).
Jason, represented by counsel, testified at this hearing in
addition to Dr. Michael Cremerius, a psychological expert,
Dr. Ashok Jilhewar, a physician medical expert (ME), and
Cheryl Hoiseth, a vocational expert (VE). Id.
31, 2015, the ALJ issued a partially favorable decision. (R.
1144-63). She first applied the required five-step evaluation
process. 20 C.F.R. 404.1520(a)(4). At step three, she
concluded that from November 5, 2007 through July 13, 2009,
the severity of Jason's degenerative disc disease
medically equaled the criteria of Listing 1.04A. (R.
1149-50). Next, applying the eight-step process for assessing
medical improvement, the ALJ determined that Jason could work
beginning July 14, 2009. See 20 C.F.R. §
404.1594(f). First, she found that Jason had not engaged in
substantial gainful activity since his alleged onset date of
November 5, 2007 (step one). Id. at 1149. She next
determined that as of July 14, 2009, Jason had the
impairments of depression, anxiety, substance abuse disorder,
degenerative disc disease, status post L3-S1 spinal fusion
surgery, morbid obesity, and obstructive sleep apnea.
Id. at 1149-50. However, the ALJ found that
beginning July 14, 2009, Jason did not have an impairment or
combination of impairments which met or medically equaled the
severity of a listed impairment, even considering the impact
of his morbid obesity (step two). Id. at 1150-52.
Addressing Listing 1.04, the ALJ noted that Jason has no
neurologic deficit, his pain is neuroanatomic in
distribution, his straight-leg raising test is negative, he
has no motor or sensory deficit, he does not ambulate with an
assistive device, and he has not been found incapable of
ambulating effectively. Id. at 1150-51. The ALJ then
considered the severity of Jason's mental impairments.
Id. at 1151-52. Applying the Paragraph B criteria,
the ALJ found that Jason had mild restrictions in activities
of daily living, moderate difficulties in social functioning,
moderate difficulties with regard to concentration,
persistence, or pace, and one to two episodes of
decompensation, each of extended duration. Id. at
1151. The ALJ concluded that the Paragraph B criteria were
not satisfied because his mental impairments did not cause at
least two “marked” limitations or one
“marked” limitation and “repeated”
episodes of decompensation, each of extended duration.
then determined that medical improvement occurred as of July
14, 2009, which was related to Jason's ability to work
(steps three and four). Id. at 1152. Specifically,
the ALJ concluded that Jason was found capable of performing
light to medium work for up to five hours a day, his
activities increased, his use of pain medication decreased at
this time and thereafter, and that he no longer had an
impairment or combination of impairments that met or
medically equaled the severity of a listed impairment.
Id. The ALJ then found that Jason's impairments
of depression, anxiety, substance abuse disorder,
degenerative disc disease, status post L3-S1 spinal fusion
surgery, morbid obesity, and obstructive sleep apnea are
severe (step six). Id. at 1149-50. She deemed
Jason's hypertension non-severe as of July 14, 2009.
Id. The ALJ next assessed Jason's RFC, finding
he could perform sedentary work except that he can:
occasionally climb ramps and stairs but never ladders, ropes
or scaffolds; occasionally balance and stoop but never kneel,
crouch, or crawl; never tolerate exposure to, or work around
hazards such as moving machinery or unprotected heights and
cannot be exposed to vibration; perform unskilled work tasks
learned by demonstration or in 30 days or less of simple,
repetitive and routine nature but is also limited to
occasional, superficial, and incidental contact with the
general public and occasional interaction with supervisors
and coworkers. Id. at 1152. Finally, the ALJ found that
Jason was unable to perform his past relevant work as a heavy
delivery truck driver since July 14, 2009, but could perform
a significant number of jobs in the national economy,
including hand packer and officer clerk/document preparer.
Id. at 1161-62. Therefore, the ALJ fund that Jason
was not disabled and that his disability ended as of July 14,
2009. Id. at 1162.
Court reviews the ALJ's decision to determine whether it
adequately discusses the issues and is based upon substantial
evidence and the proper legal criteria. See Villano v.
Astrue, 556 F.3d 558, 562 (7th Cir. 2009); Scheck v.
Barnhart, 357 F.3d 697, 699 (7th Cir. 2004).
“Substantial evidence means ‘such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'” Zurawski v.
Halter, 245 F.3d 881, 887 (7th Cir. 2001) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). In
reviewing an ALJ's decision, the Court may “not
reweigh the evidence, resolve conflicts, decide questions of
credibility, or substitute [its] own judgment for that of
the” ALJ. Clifford v. Apfel, 227 F.3d 863, 869
(7th Cir. 2000). Although the Court reviews the ALJ's
decision deferentially, the ALJ must nevertheless
“build an accurate and logical bridge” between
the evidence and her conclusions. See Steele v.
Barnhart, 290 F.3d 936, 938, 941 (7th Cir. 2002)
(internal citation and quotations omitted); see also
Fisher v. Berryhill, 760 Fed.Appx. 471, 476 (7th Cir.
2019) (explaining that the “substantial evidence”
standard requires the building of “a logical and
accurate bridge between the evidence and conclusion”).
Moreover, when the ALJ's “decision lacks
evidentiary support or is so poorly articulated as to prevent
meaningful review, the case must be remanded.”
Steele, 290 F.3d at 940.
eight of the continuing disability analysis, the ALJ found
Jason not disabled because he retains the RFC to perform
other work that exists in significant numbers in the national
economy. Jason argues that the ALJ erred by: (1) failing to
determine that his chronic pain syndrome was a severe
impairment; (2) misrepresenting the record; (3) failing to
properly assess his treating orthopedic surgeon's
opinion; (4) failing to properly account for his
temperamental deficiencies and moderate limitations in
concentration, persistence, or pace in the RFC; and (5)
failing to include a 45-minute sitting and standing
limitation into the hypothetical posed to the VE. Jason's
fourth challenge merits reversal in this case.
Chronic Pain Syndrome
first contention that the ALJ erred in failing to find that
his chronic pain syndrome was a severe impairment is easily
disposed of as the ALJ categorized numerous other impairments
as severe and proceed to the next step in the sequential
process. Severe impairments are evaluated at both step two of
the five-step sequential disability evaluation process and
step six of the eight-step continuing disability evaluation
process. See 20 C.F.R. §§ 404.1520(c),
1594(f)(6). “Impairments are not ‘severe'
when they do significantly limit the claimant's ability
to perform basic work activities, including ‘walking,
standing, sitting, lifting, pushing, pulling, reaching,
carrying, or handling.'” Thomas v. Colvin,
826 F.3d 953, 960 (7th Cir. 2016); 20 C.F.R. §
404.1520(c). At step six of a medical improvement DIB case
such as this one, the ALJ must “consider all
[claimant's] current impairments and the impact of the
combination of those impairments on [his] ability to
function.” Id. “When the evidence shows
that all [claimant's] current impairments in combination
do not significantly limit [his] physical or mental abilities
to do basic work activities, these impairments will not be
considered severe in nature” and “he will no
longer be considered to be disabled.” Id. If
the residual functional capacity assessment in step four
shows significant limitation of claimant's ability to do
basic work activities, the ALJ proceeds to step seven where
the ALJ determines whether the claimant can perform his past
relevant work. Id. The ALJ then assesses a
claimant's RFC at step seven “based on all [his]
current impairments.” 20 C.F.R. § 404.1594(f)(7).
Like step two of the five-step sequential evaluation process,
step six of the medical improvement analysis is a threshold
inquiry. “As long as the ALJ determines that the
claimant has one severe impairment the ALJ will proceed to
the remaining steps of the evaluative process.”
Castile v. Astrue, 617 F.3d 923, 926-27 (7th Cir.
six, the ALJ determined that Jason had not developed any new
impairment since July 14, 2009 and that his current severe
impairments were the same as those present from November 5,
2007 through July 13, 2009. (R. 1150). Thus, the ALJ's
analysis did not end at step six. Because the ALJ resolved
step six in Jason's favor and proceeded through step
eight of the continuing disability process, any error in that
determination was not harmful. Ray v. Berryhill, 915
F.3d 486, 492 (7th Cir. 2019) (“Step two is
merely a threshold inquiry; so long as one of a
claimant's limitations is found to be severe, error at
that step is harmless.”); Arnett v. Astrue,
676 F.3d 586, 591 (7th Cir. 2012) (“[E]ven if there was
a mistake at Step 2 [of the five-step sequential disability
evaluation process], it does not matter. Deciding whether
impairments are severe at Step 2 is a threshold issue only;
an ALJ must continue on to the remaining steps of the
evaluative process as long as there exists even one
after determining that Jason's current impairments in
combination were severe, the ALJ determined that he had the
RFC to perform a range of sedentary work with certain
postural, environmental, and mental limitations. (R. 1152).
In determining Jason's RFC, the ALJ expressly considered
Jason's continued complaints of pain, Dr. Koehn's
assessment of improvement in terms of chronic pain syndrome,
Dr. Koehn's referral to Dr. Gregory Hawley for a formal
psychiatric evaluation, and Dr. Hawley's diagnosis of
chronic pain disorder when crafting an RFC and incorporated
into the RFC limitations related to pain. Ray, 915
F.3d at 492 (“Either way, the ALJ must later consider
the limitations imposed by all impairments, severe or
non-severe.”); see (R. 1153) (noting Jason
“still goes to the pain management doctor” and
Dr. Jilhewar testified that he was aware of Jason's
“continued reports of unresolved pain” after the
closed period.”); (R. 1154) (noting Functional Capacity
Assessment (FCA) limitations dated 6/11/2009 “expressly
include consideration of pain”); (R. 1156) (noting at
10/25/2010 visit with Dr. Koehn Jason “showed some
improvement, particularly in terms of chronic pain syndrome
behavior and at November 2010 visit Jason “reported no
increase in pain with the tapering of medications” and
“[t]apering of medication was to continue”); (R.
1157) (giving “considerable weight” to state
agency mental consultants' opinions but finding “a
greater degree of limitation in social functioning on the
residual functional capacity to reflect irritability
resulting from perceived pain.”); (R. 1158) (noting
referral to Dr. Hawley for psychiatric evaluation and
diagnosis of chronic pain disorder); (R. 1160, 1161)
(considering Jason's obesity and pain when fashioning the
postural and environmental limitations of the RFC).
Therefore, the Court does not find any error beyond step six
because the ALJ addressed the impact of Jason's continued
complaints of pain in formulating the RFC.
Alleged Misrepresentations of the Record
Jason argues that the ALJ improperly misrepresented the
record in two respects. First, Jason contends that the ALJ
misrepresented that his fusion surgery “itself went
well.” (R. 1160). Second, Jason contends that the ALJ
misrepresented that ME Dr. Jilhewar's opinion was
uncontroverted. Jason's arguments are not well taken.
first submits that the ALJ misrepresented that his
“fusion surgery itself went well” because Dr.
Koehn concluded the surgery was “considered a failed
fusion” which would require medical management and low
level physical activity. (R. 775, 1160). Jason also points to
records from a Psychosocial Assessment on November 26, 2013
which indicate that Jason's depressive disorder and
anxiety disorder symptoms led to social withdrawal and
isolation and limited his desire to do things he once enjoyed
and a September 22, 2009 ER visit for observation and
treatment of suicidal ideations and major depressive disorder
with associated alcohol intoxication and a desire to
“end it all.” Id. at 1083. 1500.
evidence Jason relies on does not establish that the ALJ
erred in stating that the “fusion surgery itself went
well.” (R. 1160). First, the ALJ made this statement in
her discussion of Jason's subjective statements, which
she found not entirely credible, a determination that Jason
does not challenge. Second, it appears that the ALJ was
referring to the surgery “itself” going well,
rather than finding that Jason had an excellent outcome from
his surgery, such that he returned to his pre-injury
functioning or was pain free after undergoing lower back
surgery-as Jason seems to suggest. In the context of the
entire decision, the Court reads the ALJ's statement to
mean that there were no complications or problems associated
with the actual surgery or recovery form the surgery. The
ALJ's statement that Jason's triple fusion surgery
“itself went well” is substantially supported.
(R. 861) (12/15/08 - noting “[t]he x-ray demonstrates
good position of the hardware. The wound looks excellent.
Neurologically he is totally intact.”); (R. 862)
(1/19/09 - stating “[o]n examination his incision is
well healed” and x-rays “show pedicle screws at
¶ 3, L4, L5 and S1 with posterolateral fusions
forming.”); (R. 863, 864) (3/2/09 and 4/13/09 - noting
“incision is well healed” and x-rays “show
pedicle screws at ¶ 3, L4, L5, and S1 with a generous
posterolateral fusion.”); (R. 865) (6/30/09 - noting
x-rays “show pedicle screws at ¶ 3, L4-5, and S1
with posterolateral and interbody fusion formed
nicely.”); (R. 867) (1/4/10 - stating x-rays
“show pedicle screws at ¶ 3, L4, L5, and S1 with a
good posterolateral fusion forming nicely. It is a mature
fusion.”). As the ALJ noted at step three, Jason's
recovery from surgery “was uneventful” and
despite continued complaints of pain, he has “no
ongoing neurological abnormalities and the fusion had
healed.” Id. at 1150. Although Dr. Koehn
characterized the surgery as a “failed fusion, ”
Jason's orthopedic surgeon, Dr. Lorenz, did not indicate
that the surgery was a failure. Id. at 1155.
the record reflects that Jason did improve after the surgery
compared to his pre-surgery condition, but the ALJ recognized
that Jason had pain symptoms post-surgery. (R. 1160)
(recognizing that Jason “continued to complain of
pain.”); (R. 1153, 1160) (giving great weight to Dr.
Jilhewar's opinion who recognized that Jason had
continued reports of unresolved pain after 7/13/09); (R.
1155) (giving some weight to the 6/11/09 FCA because it
“incorporate[d] a consideration of pain.”); (R.
1160) (accommodating Jason's obesity and pain by
including postural and environmental limitations to the RFC).
The ALJ also correctly noted that Jason's functional
capacity improved from a light to a light to medium
exertional capacity after the surgery. Id. 627-36,
next argues that the ALJ misrepresented that Dr.
Jilhewar's opinion was “uncontroverted.” (R.
1150). He contends that this is incorrect because Dr. Lorenz
and the FCA dated June 11, 2009 limited Jason to a 5-6 hour
workday, pain specialist Dr. Koehn stated on July 20, 2009
that Jason's multilevel fusion failed, and Dr. Koehn
noted on March 15, 2010 that Jason's “[d]aily ...