Kip Yurt v. Carolyn Colvin , 758 F.3d 850 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2964
KIP YURT,
Plaintiff-Appellant,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:12 CV 00246 — Roger B. Cosbey, Magistrate Judge.
ARGUED FEBRUARY 24, 2014 — DECIDED JULY 10, 2014
Before FLAUM and ROVNER, Circuit Judges and KENDALL,
District Judge.*
ROVNER, Circuit Judge. Kip Yurt suffers from a psychotic
disorder which causes him to experience, among other things,
*
The Honorable Virginia M. Kendall, United States District Court for the
Northern District of Illinois, sitting by designation.
2 No. 13-2964
auditory hallucinations and bouts of uncontrollable rage. He
also struggles with obsessive compulsive disorder, moderately
severe chronic obstructive pulmonary disease (“COPD”), and
chronic bifrontal tension headaches. As a result, he applied for
Disability Insurance Benefits from the Social Security Adminis-
tration, but an Administrative Law Judge (“ALJ”) denied his
application. After the Appeals Council declined to review the
ALJ’s decision, Yurt sought review in the district court pursu-
ant to 42 U.S.C. § 405(g). A magistrate judge affirmed the
decision of the ALJ, and Yurt appeals, arguing principally that
the ALJ erred by failing to include many of his medical
limitations in the hypothetical that she posed to the vocational
expert (“VE”). Yurt contends that the flawed hypothetical led
the VE and the ALJ to erroneously conclude that he could be
gainfully employed. For the reasons discussed below, we
reverse the judgment of the district court and remand to the
agency for further proceedings.
I.
Yurt applied for disability in February 2011, alleging
disability beginning on August 4, 2010. The Social Security
Administration denied both Yurt’s claim and his request for
reconsideration. On his application for a hearing with an ALJ,
Yurt noted that he had worked in the past in various capacities
as a cook and a janitor.1 His final job at the “substantial gainful
activity” level effectively ended in May 2010, when he had
1
Yurt wrote in his application that his employment dates were “estimated”
and in fact some of the dates are not entirely consistent, a problem
attributed at argument to Yurt’s documented short-term memory difficul-
ties.
No. 13-2964 3
some sort of break with reality. He was taken to the emergency
room and subsequently placed on medical leave for several
months. Shortly after he returned to work in August 2010, he
threatened a coworker with a knife, which led, unsurprisingly,
to his termination.
Between the episode at the hospital in May 2010 and the
date of his hearing with the ALJ on April 3, 2012, Yurt saw a
number of different physicians and therapists and attempted
at least one other job. The May 2010 incident occurred at
Parkview Noble Hospital, where Yurt had worked in the
kitchen for several years when he was found “wandering the
halls” without any memory of how he had gotten there. After
being taken to the emergency room, he was referred to a
neurologist, Dr. Madhav Bhat, who treated him on July 1, 2010.
Dr. Bhat suggested weaning Yurt off an anti-seizure medicine
he had been taking and doubling the dosage of Prozac Yurt
was already taking for depression. Dr. Bhat recognized that
Yurt suffered from “[r]ecurrent episodes of altered awareness
of surroundings,” and diagnosed Yurt’s nearly daily recurring
bifrontal pain in his head as a chronic tension headache. He
concluded that Yurt should remain on medical leave from
work for the time being.
Yurt returned to work that August, but reported that
Parkview fired him shortly thereafter because “they were
really afraid that he might hurt other people” and because he
was accused of holding up a knife and threatening coworkers.
On August 13, 2010, Yurt saw psychiatrist Dr. Frank Shao, who
concluded that Yurt’s frequent self-described “black outs”
were difficult to diagnose precisely. Dr. Shao recommended
that Yurt obtain a second opinion and prescribed Lamictal in
4 No. 13-2964
slowly increasing dosages to help Yurt’s “mood lability and
violent behaviors.” He recognized that Yurt may have a
“certain risk of violence to himself and others” because of his
urges and history of aggression, but deemed the risk not to be
“acute.” He assigned Yurt a Global Assessment of Functioning
(“GAF”) score of 40 to 50.2 This GAF score correlates with
“[s]erious symptoms … or any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to
keep a job).” Am. Psychiatric Ass’n, Diagnostic & Statistical
Manual of Mental Disorders 32 (4th ed. text revision 2000).
Yurt then attempted to work part-time as a cook at St.
Francis School. Although the record is short on specifics, it
appears that Yurt lost this job on account of again threatening
a coworker. This likely corresponds to the beginning of
December 2010, when Yurt called Dr. Shao’s office and
reported grabbing a co-worker by the throat. He did not
remember the details because he had blacked out.
Later that same month, he was admitted to the hospital for
psychiatric evaluation. Dr. Shao reported that Yurt was
hearing voices telling him to “kill people” and that he was
afraid to go outside because the voice in his head (which he
called “Alex”) was instructing him to “randomly hurt people.”
Dr. Shao described Yurt as “disheveled” and assessed his GAF
2
The GAF score is a numeric scale of 0 through 100 used to assess severity
of symptoms and functional level. Am. Psychiatric Ass’n, Diagnostic &
Statistical Manual of Mental Disorders 32 (4th ed. text revision 2000).
Although the American Psychiatric Association recently discontinued use
of the GAF metric, it was still in use during the period Yurt’s examinations
occurred. See id. 16 (5th ed. 2013).
No. 13-2964 5
score to be between 25 to 30. This corresponds to behavior that
is “considerably influenced by delusions or hallucinations or
serious impairment in communication or judgment (e.g.,
sometimes incoherent, acts grossly inappropriately, suicidal
preoccupation) or inability to function in almost all areas (e.g.,
stays in bed all day; no job, home, or friends).” Id. Dr. Shao
recommended inpatient treatment for what he expected would
be one to two weeks. He also increased Yurt’s dosage of Celexa
(an antidepressant) and continued him on Lamictal (an
anticonvulsant used to treat both epilepsy and bipolar disor-
der) as well as Seroquel (another medication for bipolar
disorder). Despite Dr. Shao’s estimation that Yurt would need
between one and two weeks of inpatient treatment, Yurt
checked out of the hospital approximately two days later,
denying auditory hallucinations, homicidal or suicidal ide-
ations, delusions, or depression.
In January 2011, Yurt saw Dr. Kenneth Ogu for a psychiat-
ric evaluation. Dr. Ogu noted that Yurt described having
command hallucinations, sleep difficulty, racing thoughts and
obsessive compulsive thoughts. He diagnosed Yurt with
psychosis, not otherwise specified as well as “Rule out Bipolar
I Disorder” and “Rule out Intermittent Explosive Disorder.”
Yurt asked if his anti-psychotic medications (he was taking
three) could be changed because they did not seem to be
working for the voices. Dr. Ogu agreed and set out a plan for
reducing some medications and adding several others.
Yurt was again admitted for psychiatric inpatient care on
January 25, 2011. He continued to complain of auditory
hallucinations—specifically the voice of “Alex” which Yurt
described as “so strong” that he could no longer control it. This
6 No. 13-2964
time Dr. Shao recommended hospitalizing Yurt to keep him
from hurting others as a result of the auditory hallucinations.
Dr. Shao again opined that Yurt had a GAF of 25 to 30. Here
again, Yurt was released from the hospital two days later. At
that time, Dr. Shao recorded a slightly higher GAF score of 35
to 40. This corresponds to “[s]ome impairment in reality testing
or communication (e.g. speech is at times illogical, obscure, or
irrelevant) or major impairment in several areas, such as work
or school, family relations, judgment, thinking, or mood (e.g.
depressed adult avoids friends, neglects family, and is unable
to work[.])” Am. Psychiatric Ass’n, Diagnostic & Statistical
Manual of Mental Disorders 32 (4th ed. text revision 2000). After
his January 2011 stay in the hospital, Yurt was taking the
following medications on a daily basis: 40 milligrams of Prozac
for depression; 100 milligrams of Lamictal (used for treating
bipolar disorder); 500 milligrams of Depakote for mood
stabilization; 1 milligram of Klonopin (used for treating
epilepsy and panic disorders) at bedtime; 10 milligrams of
Ambien at bedtime; and an increased dosage of 2 milligrams of
Risperdal for psychosis.
In April 2011, Yurt met with the psychologist selected by
the Disability Determination Bureau, Revathi Bingi, Ed.D.
After evaluating Yurt, she concluded that he appeared to
“have great difficulty managing his symptoms” in spite of
good family support. She observed that Yurt’s “hallucinations,
paranoia and anger appear to be restricting his life” and that
his quality of life “appears to be very poor.” She assigned him
a GAF of 45, which, as described above, represents “[s]erious
symptoms … or any serious impairment in social, occupational,
or school functioning[.]” Id. That same month, Yurt began
No. 13-2964 7
meeting for therapy with Rachel DeFrancesco, M.A. She
identified Yurt’s issues as “anxiety, depression, employment,
interpersonal problems, psychosis, [and] sleep.” She character-
ized Yurt’s prognosis as “fair,” and described him as suffering
from “severe” symptoms but possessing a “strong motivation
to gain understanding.”
In May 2011, state agency psychologist Ken Lovko re-
viewed Yurt’s file for a mental residual functional capacity
assessment (“RFC”). As relevant here, Dr. Lovko checked
boxes indicating that Yurt was “moderately limited” in his
ability to: (1) understand and remember detailed instructions;
(2) carry out detailed instructions; (3) perform activities within
a schedule and maintain regular attendance; (4) perform at a
consistent pace and complete a normal workday and work-
week; (5) interact appropriately with the general public; (6) get
along with coworkers or peers; and (7) maintain socially
appropriate behavior. Dr. Lovko then opined that although
Yurt’s diagnosis was “serious and consistent with severe
impairments,” his functioning did not suggest that he had lost
the capacity for unskilled work. Dr. Lovko also noted that
Yurt’s GAF score of 60 (given by Dr. Ogu in January 2011)
indicated only “minimal impairments.” Dr. Lovko further
allowed that Yurt’s symptoms may impede his ability to work
around large numbers of people, but that Yurt could likely
work in an environment with fewer people and low levels of
stress. Dr. Lovko also thought that Yurt could relate “at least
on a superficial basis … with co-workers and supervisors.”
In April 2012, Yurt had a hearing before an ALJ. The ALJ
heard testimony from Yurt and his wife Lori as well as a
vocational expert. Yurt testified that his “rage” and inability to
8 No. 13-2964
“be around people” prevented him from holding a full-time
job. He also testified that he could not sit or stand still for more
than a few minutes at a time, and that his left hand shakes and
prevents him from using it. Finally, he testified that he re-
peated certain cleaning routines at home as many as ten times
daily and that he did not think he could get a job because he
had “a real problem around people.”
Yurt’s wife of eighteen years, Lori, testified that because of
his memory problems she needs to make sure he takes his
various medications both in the morning and again at night. As
for his level of functioning, she stated that she did not see him
“functioning that much” and that when she did see him he was
often lethargic, sleeping all day, or watching television. She
also explained that even slight changes to his medication make
it difficult for him to function and cause him to stare into space
or otherwise lose focus. Finally, she expressed her opinion that
Yurt’s memory loss would prevent him from succeeding at
even a job where he was able to work alone and avoid other
people because he would be unable to do what he was told.
The ALJ then formulated a hypothetical for the VE to assess
what jobs Yurt could perform. She described to the VE an
individual that can “remember and carry out unskilled task[s]
without special considerations … relate on at least a superficial
basis with coworkers and supervisors … attend to tasks for
sufficient periods of time to complete” and who “should not
work around large numbers of people.” When asked if such an
individual could perform any of Yurt’s past work, the VE
opined that Yurt would be capable of performing his past work
of dishwasher, janitor, and kitchen helper. She also thought
that Yurt could carry out the duties of the light, unskilled job
No. 13-2964 9
of “towel folder” or work as a cleaner/housekeeper. The VE
also stated that in competitive employment workers were
expected to be on task 80 to 85 percent of the time and could
not miss more than one or two days per month and up to
approximately ten per year. Yurt’s attorney then asked what
jobs would be eliminated if Yurt needed to avoid exposure to
pulmonary irritants such as dust and fumes (on account of his
COPD). The VE opined that such a restriction would essen-
tially eliminate any cleaning jobs. Finally, she allowed that the
kitchen helper position would be eliminated if it was necessary
to avoid any position that involved frequent exposure to
hazards.
After analyzing the five steps in 20 C.F.R. § 404.1520, the
ALJ concluded that Yurt was not disabled. At Step One, the
ALJ determined that Yurt had not engaged in substantial
gainful activity since the alleged onset date in August 2010.
The ALJ noted that Yurt initially testified that he had not
worked since the alleged onset date but that the evidence
showed that he had worked as a part-time chef from October
2010 through March 2011. Yurt attributed the discrepancy to
his alleged memory difficulties; the issue was ultimately
irrelevant because the ALJ concluded that his earnings as a
part-time chef did not represent disqualifying substantial
gainful activity. At Step Two, the ALJ concluded that Yurt’s
psychotic disorder was severe, but that his obsessive compul-
sive disorder, COPD, and hand tremors were not. At Step
Three, the ALJ determined that Yurt did not have an impair-
ment or combination of impairments that met or medically
equaled the criteria of Listing 12.03—Schizophrenic, paranoid
and other psychotic disorders. Specifically, the ALJ concluded
10 No. 13-2964
that Yurt’s mental impairment did not restrict his activities of
daily living. And although the ALJ acknowledged that Yurt
had “moderate difficulties” with social functioning and
concentration, persistence, or pace, she concluded that the
record did not support a finding of marked limitation in either
domain as required to meet the criteria of Listing 12.03. She
also determined that Yurt had not experienced any episodes of
extended decompensation or repeated episodes of decom-
pensation, which the regulations define as “exacerbations or
temporary increases in symptoms or signs accompanied by a
loss of adaptive functioning[.]” 20 C.F.R. Pt. 404, Subpt. P, App.
1, § 12.00(C)(4).
The ALJ next determined that Yurt possessed the residual
functional capacity to perform a full range of work at all
exertional levels so long as he had only brief and superficial
interaction with others and was not around large numbers of
individuals. She based this largely on Dr. Lovko’s assessment
that Yurt retained capacity to perform unskilled tasks without
special considerations as long as he was not in large groups
and had to relate only on a superficial basis. She concluded
that although Yurt’s medically determinable impairments
could be expected to cause some of his stated inability to be
around people and sit or stand still, those limitations were not
fully credible to the extent they were inconsistent with her RFC
assessment. She also noted that Yurt’s treatment records
documented improvement in his condition between his initial
psychiatric consultations in August 2010 and records from
counseling sessions in 2011 and 2012. The ALJ also made much
of Yurt’s ability to go shopping on “Black Friday” in December
2011 without incident. She generally rejected Dr. Bingi’s
No. 13-2964 11
findings as an inaccurate representation of Yurt’s overall
mental capacity. She concluded that both Dr. Ogu’s evaluation
in January 2011 and a later evaluation in May 2011 reflected
that Yurt was articulate and displayed a normal speech
pattern, findings that called into question Dr. Bingi’s GAF
score of only 45 and her assessment that Yurt had great
difficulty managing symptoms on account of his hallucina-
tions, paranoia, and anger.
At Step Four, the ALJ concluded that Yurt was capable of
performing his past work of a dishwasher and kitchen helper.
Alternatively, she found at Step Five that Yurt could also work
as an industrial janitor, cleaner, or towel folder consistent with
the VE’s testimony on that point; accordingly, she entered a
finding that Yurt was “not disabled.” The Appeals Council
denied review, rendering the ALJ's decision the Commis-
sioner's final decision subject to judicial review. 20 C.F.R.
§§ 416.1455, 416.1481. Yurt appealed to the district court, which
affirmed after finding that the ALJ's decision was supported by
substantial evidence.
II.
We review the district court’s affirmance de novo and
therefore review the ALJ’s decision directly. E.g., Thomas v.
Colvin, 745 F.3d 802, 805 (7th Cir. 2014). We review the ALJ’s
decision deferentially only to determine if it is supported by
“substantial evidence,” which we have described as “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Moore v. Colvin, 743 F.3d
1118, 1120–21 (7th Cir. 2014) (internal quotations and citation
omitted). We neither reweigh the evidence nor substitute our
12 No. 13-2964
own judgment in place of the ALJ, but her decision must
provide enough discussion for us to afford Yurt meaningful
judicial review and assess the validity of the agency’s ultimate
conclusion. Id.On appeal, Yurt argues that several flaws in the ALJ’s
decision undercut her conclusions at Steps Four and Five that
he could perform his past work or other jobs in the national
economy. He first claims that the ALJ’s hypothetical to the VE
is flawed because it failed to fully account for his limitations.
Relatedly, he attacks the ALJ’s failure to consider his tension
headaches at all. He also claims the ALJ did not properly
weigh the medical evidence from his treating physicians.
Finally, he asserts that the ALJ failed to build a logical bridge
between the medical evidence and her conclusion that Yurt
had not experienced any episodes of extended decompen-
sation.
We begin with the ALJ’s hypothetical question to the VE,
which, as detailed above, simply described an individual who
could perform unskilled tasks, relate superficially to small
numbers of people, and attend to tasks long enough to
complete them. Yurt notes that the hypothetical fails to
mention his headaches, his COPD, his tendency to “black out,”
the voices he hears, and significantly, the limitations outlined
in state agency psychologist Dr. Lovko’s assessment that the
ALJ expressly “adopted.”
Instead of directly defending the hypothetical, the Commis-
sioner focuses on the ALJ’s related finding regarding Yurt’s
residual functional capacity, which essentially mirrored her
hypothetical to the VE. Their dispute centers on whether the
No. 13-2964 13
ALJ was required to incorporate into her hypothetical and RFC
the “moderate” limitations Dr. Lovko noted on the Mental
Residual Functional Capacity Assessment (“MRFCA”) form
that he completed. Specifically, Yurt contends that the ALJ
ignored all six mental activity categories where Dr. Lovko
found that he was “moderately limited.” As detailed above,
these included several limitations in concentration, persistence,
and pace, including moderate limitations in the ability to carry
out detailed instructions, perform within a schedule, be
punctual, perform at a consistent pace, and to complete a
normal workday and workweek.
As a general rule, both the hypothetical posed to the VE
and the ALJ’s RFC assessment must incorporate all of the
claimant’s limitations supported by the medical record. See
O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010)
(“Our cases, taken together, suggest that the most effective
way to ensure that the VE is apprised fully of the claimant’s
limitations is to include all of them directly in the hypotheti-
cal.”); Indoranto v. Barnhart, 374 F.3d 470, 473–74 (7th Cir. 2004)
(“If the ALJ relies on testimony from a vocational expert, the
hypothetical question he poses to the VE must incorporate all
of the claimant’s limitations supported by medical evidence in
the record.”); see also SSR 96-5p, 1996 WL 374183, at *5 (RFC
assessment “is based upon consideration of all relevant
evidence in the case record, including medical evidence and
relevant nonmedical evidence”); 20 C.F.R. § 404.1545. This
includes any deficiencies the claimant may have in concentra-
tion, persistence, or pace. O’Connor-Spinner, 627 F.3d at 619;
(“Among the limitations the VE must consider are deficiencies
of concentration, persistence and pace.”); Stewart v. Astrue, 561
14 No. 13-2964
F.3d 679, 684 (7th Cir. 2009) (hypothetical question “must
account for documented limitations of ‘concentration, persis-
tence, or pace’”) (collecting cases). Although it is not necessary
that the ALJ use this precise terminology (“concentration,
persistence and pace”), we will not assume that the VE is
apprised of such limitations unless she has independently
reviewed the medical record. There is no evidence here that the
VE reviewed Yurt’s medical history or heard testimony about
the various medical limitations that he complains were omitted
from the ALJ’s hypothetical. Thus, we would expect an
adequate hypothetical to include the limitations identified by
Dr. Lovko and Yurt’s treating physicians.
Relying on Johansen v. Barnhart, 314 F.3d 283 (7th Cir. 2002),
the Commissioner argues that we should be unconcerned here
with the failure of the ALJ to mention the six areas where
Dr. Lovko found moderate limitations because the narrative
portion of the form adequately “translated” these limitations
into a mental RFC that the ALJ could reasonably adopt. In
Johansen, we concluded that substantial evidence supported the
denial of disability benefits where the ALJ’s mental RFC
assessment and hypothetical to the VE failed to explicitly note
the three areas where one consultative physician had noted
that the claimant was “moderately limited.” Id. at 288–89. We
upheld the ALJ’s decision despite these omissions, after
observing that in addition to the finding that the claimant was
“moderately limited” in three areas, the consultative physician
“went further” and “translated” his findings into a specific
RFC assessment opining that the claimant was still able to
perform low-stress, repetitive work. Id.No. 13-2964 15
The first and most obvious problem with the Commis-
sioner’s argument is that it focuses entirely on the ALJ’s mental
RFC when it is in fact the hypothetical she posed to the VE that
Yurt attacks. Even if we ignore this shortcoming, Johansen is not
as applicable as the Commissioner suggests. The three alleged
omissions from the hypothetical in Johansen were moderate
limitations in the claimant’s ability to (1) perform activities
within a schedule; (2) complete a normal workweek and
perform at a consistent pace; and (3) accept instructions and
respond appropriately to criticism. Id. at 286. Only one of the
limitations found by Dr. Lovko—performing activities within
a schedule—appears in Johansen. Given the additional limita-
tions Dr. Lovko found and their bearing on Yurt’s limitations
in concentration, persistence, and pace, we would be hard-
pressed to conclude that Dr. Lovko’s narrative RFC “went
further” in capturing those limitations.
Moreover, we allowed the hypothetical in Johansen to stand
despite its omissions because its description of “repetitive, low-
stress work” specifically excluded positions likely to trigger the
panic disorder that formed the basis of the claimant’s limita-
tions in concentration, persistence, and pace. See O’Connor-
Spinner, 627 F.3d at 619 (collecting and distinguishing cases,
including Johansen, where we have upheld hypotheticals that
omitted restrictions in “concentration, persistence, and pace”).
Significantly, Yurt’s hypothetical did not limit him to low stress
positions or otherwise capture his moderate difficulties
understanding and remembering instructions or performing
activities within a schedule. See Craft v. Astrue, 539 F.3d 668,
677 (7th Cir. 2008) (“In Johansen, the RFC reflected some work
requirements that were relevant to mental abilities (i.e.,
16 No. 13-2964
repetition and stress); here, the RFC was for ‘unskilled’ work,
which by itself does not provide any information about Craft’s
mental condition or abilities.”). This is true despite Dr. Lovko’s
having specifically mentioned in his narrative RFC that Yurt
could deal with an environment “where stress levels are
limited.”
Indeed, the Commissioner seems to be suggesting that the
hypothetical and the mental RFC adequately accounted for
Yurt’s limitations in concentration, persistence, and pace by
limiting Yurt to unskilled work. But we have repeatedly
rejected the notion that a hypothetical like the one here
confining the claimant to simple, routine tasks and limited
interactions with others adequately captures temperamental
deficiencies and limitations in concentration, persistence, and
pace. See generally Stewart, 561 F.3d at 685 (collecting cases); see
also Craft, 539 F.3d at 677–78 (restricting claimant to unskilled,
simple work does not account for his difficulty with memory,
concentration, and mood swings); Young v. Barnhart, 362 F.3d
995, 1004 (7th Cir. 2004); see also SSR 85-15, 1985 WL 56857 at *6
(1985) (“[B]ecause response to the demands of work is highly
individualized, the skill level of a position is not necessarily
related to the difficulty an individual will have in meeting the
demands of the job. A claimant's [mental] condition may make
performance of an unskilled job as difficult as an objectively
more demanding job.”). The ALJ specifically found at Step 4
that Yurt had “moderate difficulties … [w]ith regard to
concentration, persistence, or pace.” These limitations were
highlighted again in Dr. Lovko’s findings on the MRFCA form.
Beyond stating that Yurt could perform “unskilled task[s]
without special considerations,” the hypothetical does nothing
No. 13-2964 17
to ensure that the VE eliminated from her responses those
positions that would prove too difficult for someone with
Yurt’s depression and psychotic disorder. Nor is this a case like
Simila v. Astrue, 573 F.3d 503, 522 (7th Cir. 2009), where the
hypothetical describes the claimant’s underlying mental
diagnoses (chronic pain syndrome and somatoform disorder)
and the link between those conditions and the mental limita-
tions is clear. In short, although the ALJ’s hypothetical con-
tained several limitations accounting for Yurt’s difficulties in
social functioning, the blanket statement that he could perform
“unskilled” work fails to accurately capture Yurt’s documented
difficulties with concentration, persistence, and pace. This
failure to build an “accurate and logical bridge” between the
evidence of mental impairments and the hypothetical and the
mental RFC requires us to remand for further proceedings. See
O’Connor-Spinner, 627 F.3d at 620–21; Craft, 593 F.3d at 677–78.
There are other reasons the ALJ should not have adopted
non-examining psychologist Dr. Lovko’s RFC finding. In
concluding broadly that Yurt retained the capacity for un-
skilled work, Dr. Lovko commented that a “GAF of 60 suggests
minimal impairments.” But this conclusion fails to note that the
GAF of 60 assigned by Dr. Ogu in January 2011 was the highest
GAF assessment Yurt ever received. Notably, just two weeks
after Dr. Ogu’s assessment, Yurt was hospitalized after having
a psychotic break. At intake, his GAF was assessed at 25 to 30,
and upon his release two days later Dr. Shao recorded a GAF
score of 35 to 40. The higher score of 35 to 40 corresponds to
some impairment in reality or major impairment in several
areas (i.e., avoids friends, neglects family, and is unable to
work). This is a far cry from the sort of “minimal” impairment
18 No. 13-2964
Dr. Lovko believed could be expected with Yurt’s high-water
mark GAF of 60. Seizing upon the GAF of 60 to conclude that
Yurt was not substantially impaired is precisely the type of
cherry-picking of the medical record that we have repeatedly
forbidden. See, e.g., Bates v. Colvin, 736 F.3d 1093, 1099 (7th Cir.
2013) (“An ALJ cannot rely only on the evidence that supports
her opinion.”). The Commissioner attempts to minimize
Dr. Lovko’s reliance on Yurt’s best GAF score by pointing out
that it is the ALJ and not Dr. Lovko who is forbidden from
cherry-picking the medical evidence in support of her finding.
But such a distinction is largely irrelevant here given the ALJ’s
assertion that she credited and indeed adopted Dr. Lovko’s
opinion. And although the Commissioner is correct that the
ALJ was not required to give any weight to individual GAF
scores, see Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010), the
problem here is not the failure to individually weigh the low
GAF scores but a larger general tendency to ignore or discount
evidence favorable to Yurt’s claim, which included GAF scores
from multiple physicians suggesting a far lower level of
functioning than that captured by the ALJ’s hypothetical and
mental RFC.3 See Bates, 736 F.3d at 1100 (low GAF score alone
is insufficient to overturn ALJ’s finding of no disability but
GAF scores in context revealed ALJ’s deficient consideration of
entirety of claimant’s evidence).
We are also troubled by the ALJ’s failure to mention Yurt’s
bifrontal tension headaches, which the neurologist Dr. Bhat
3
This is true even when Dr. Binghi’s GAF estimate of 45 is excluded
pursuant to the ALJ’s finding that it was not entirely credible or consistent
with the record evidence as a whole.
No. 13-2964 19
described as having a tendency “to recur almost every day.”
The Commissioner attempts to excuse this omission because
Yurt did not mention them in his function reports or testify
about them at the hearing. Although we have recognized the
claimant’s obligation to explain why certain conditions are
disabling, Pepper v. Colvin, 721 F.3d 351, 367 (7th Cir. 2013), it
is the ALJ who carries the burden of developing the record,
Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009). The fact that
the headaches standing alone were not disabling is not
grounds for the ALJ to ignore them entirely—it is their impact
in combination with Yurt’s other impairments that may be
critical to his claim. See SSR 96-8P, 1996 WL 374184 at *5
(observing that when considered in combination with other
impairments a non-severe impairment may become “critical”
to the outcome of a claim); see also Indoranto, 374 F.3d at 474(“Notably absent from the ALJ’s order is a discussion of how
Indoranto’s headaches and blurred vision affect her ability to
work.”). Although this omission standing alone probably
would not have been grounds for remand, the ALJ may clarify
on remand the effect of Yurt’s tension headaches on his claim.
See O’Connor-Spinner, 627 F.3d at 621.
Because these shortcomings are enough to require remand
to the Agency for further proceedings, we need not belabor
Yurt’s remaining arguments regarding whether the ALJ
properly weighed the evidence provided by treating physi-
cians and whether substantial evidence supports her conclu-
sion that he experienced no episodes of decompensation. Yurt
complains that the ALJ failed to properly weigh the evidence
provided by his treating physicians. He points specifically to
the assessments by Dr. Shao and Dr. Ogu as well as Rachelle
20 No. 13-2964
DeFrancesco, M.A., who worked as a therapist under
Dr. Ogu’s supervision. As for treating physicians Dr. Shao and
Dr. Ogu, we simply note that in addition to summarizing
Yurt’s visits and describing their treatment notes, the ALJ
should explicitly consider the details of the treatment relation-
ship and provide reasons for the weight given to their opin-
ions. See 20 C.F.R. § 404.1527(c)(2) (describing six factor
weighing process ALJ must perform for “every” treating
physician); see also Scott v. Astrue, 647 F.3d 734, 739 (7th Cir.
2011) (citing § 404.1527 for principle that ALJ must offer “good
reasons” for rejecting treating physicians opinion, which is
accorded controlling weight so long as it is “well supported”
and consistent with other evidence in the record) (internal
quotations and citation omitted); see also Moss v. Astrue, 555
F.3d 556, 561 (7th Cir. 2009). Likewise, on remand the ALJ
should consider DeFrancesco’s observations about the side
effects of Yurt’s medications and her assessment that Yurt’s
hallucinations and psychotic symptoms left him in “acute”
distress.
That leaves the ALJ’s perfunctory conclusion at Step 4 that
Yurt had suffered no extended episodes of decompensation, as
would be required for him to satisfy the “B criteria” for a
finding of per se disability under Listing 12.03 for psychotic
disorders. See 20 C.F.R. Pt. 404, Subpart P., App. 1, § 12.04;
Larsen v. Astrue, 615 F.3d 744, 748 (7th Cir. 2010) (describing
requirement that claimant suffering from an affective disorder
must have both a severe impairment under the “A criteria” and
at least two “B criteria”). Specifically, Listing 12.03 requires that
a claimant experience either three or more decompensation
episodes lasting at least two weeks, a lesser number of longer
No. 13-2964 21
episodes, or a greater number of shorter episodes of equivalent
severity. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.03(C). Here
the ALJ pointed only to Yurt’s brief hospitalizations and
concluded without elaboration that because they were both
short-lived he had not suffered from extended episodes of
decompensation. Although we reach no conclusion as to
whether Yurt has suffered from decompensation episodes of
sufficient frequency and severity to satisfy the “B criteria,” we
note that on remand the ALJ should consider that hospitaliza-
tions are not the only way a claimant can satisfy the decompen-
sation requirement. See 20 C.F.R. Pt. 404, Subpt. P, App. 1
§ 12.00(C)(4) (observing that ALJ “must use judgment” to
determine if more frequent decompensation episodes of
shorter duration or less frequent episodes of longer duration
may be used to substitute for the listed finding).
III.
For the foregoing reasons, the judgment affirming the
denial of benefits is REVERSED and the case is REMANDED
with instructions that it be returned to the SSA for further
proceedings consistent with this opinion.