Steffen v. Astrue

Filing 38

MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 5/23/2013.Mailed notice.(jlj)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GARY STEFFEN,
Plaintiff,
vs.
CAROLYN W. COLVIN, Commissioner of Social
Security,
Defendant.

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08 C 3935
Judge Feinerman

MEMORANDUM OPINION AND ORDER
Gary Steffen filed a claim for disability insurance benefits (“DIB”) with the Social
Security Administration in March 2006, alleging that he had become disabled on January 6,
2006. The Commissioner denied the claim and then denied Steffen’s request for reconsideration.
Steffen sought and received a hearing before an administrative law judge (“ALJ”) pursuant to 20
C.F.R. § 404.914. The ALJ denied the claim, and the Social Security Appeals Council denied
Steffen’s request for review of the ALJ’s decision, making the ALJ’s decision the final decision
of the Commissioner. See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005). Steffen
timely filed this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the
Commissioner’s final decision. After numerous extensions of time, the parties filed crossmotions for summary judgment. Docs. 28, 35. For the following reasons, Steffen’s motion is
granted, the Commissioner’s motion is denied, and the case is remanded to the Commissioner
for further proceedings.
Background
The following facts are taken from the administrative record.
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A.

Factual Background

Steffen was 45 years old when he allegedly became disabled. He has a high school
education and obtained an associates degree. Steffen’s DIB application states that he worked as
a plumber from 2003 until January 6, 2006. At points during the following year, he held parttime work cleaning and maintaining injection molds for plastic parts; he claims that he can no
longer perform that job due to exertion limitations and his inability to perform properly while on
pain medication. From 1984 to 2002, Steffen ran his own business, working as a machinist; in
that job, he performed grinding, milling, computer-aided design, and various management and
administrative tasks associated with running the business.
Steffen’s DIB application claims that he is unable to work due to “[f]ibromyalgia,
hypertension, [a] speech impediment, [and] foot problems.” In his brief before this court,
Steffen claims to have other impairments, including left medial plantar fasciitis associated with
pain and edema, degenerative disc disease, disk protrusion at L4-L5 and sciatica associated with
lower back pain, headache with blurred vision, comminuted fracture of the distal radius, bony
fragments in his right elbow, a history of peptic ulcer, left ear tinnitus, acute bronchitis with hilar
density, severe depression, dysthymia with flat affect, and chronic fatigue with insomnia.
Steffen’s treating physician, Dr. Walter E. Gasser, has treated Steffen for fibromyalgia
since 1974. In a June 12, 2006, letter to the Illinois Department of Human Services, Dr. Gasser
observed that Steffen started in 1988 to experience chronic musculoskeletal pain and muscle
tension headaches. As a result, Steffen has been prescribed various medications, including
Darvon Compound, Valium, Doxepin, Elavil, Hydrocodone, and Paxil to alleviate his
generalized pain. Dr. Gasser’s letter describes Steffen’s fibromyalgia as “by far the most severe
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case … that you will ever see.” He opined that a person with severe fibromyalgia cannot sit for
longer than 15 to 20 minutes and that Steffen was permanently disabled and unable to work. Dr.
Gasser consistently noted fibromyalgia among his diagnoses throughout their consultations.
On January 11, 2006, Steffen underwent a left endoscopic plantar fasciotomy in an
attempt to alleviate his left heel pain. A report dated March 21, 2006 indicates that Steffen
experienced considerable improvement and was able to exercise as a result of the surgery. On
May 2, 2006, Dr. Gasser observed that Steffen was suffering from insomnia, headaches, and
dysthymic disorder. “Dysthymia is a chronic type of depression in which a person’s moods are
regularly low. However, symptoms are not as severe as with major depression.” Nat’l Institute
of Health, U.S. Nat’l Library of Medicine, “Dysthymia,”
www.nlm.nih.gov/medlineplus/ency/article/000918.htm (last visited May 21, 2013). At the May
2 appointment, Steffen rated his pain as a five on a scale of one to ten.
Steffen also suffers from hypertension and has been prescribed medications to control his
blood pressure. He has had a stutter since childhood.
Steffen had a neurological consultation with Dr. Safwan Barakat on August 22, 2006.
Dr. Barakat observed that Steffen had lower back pain and left leg pain for approximately two
months prior to the evaluation. The pain was identified as sciatica, and Dr. Barakat noted that
bending, stooping, coughing, sneezing, and sitting seemed to aggravate Steffen’s symptoms. Dr.
Barakat further observed that an MRI indicated a herniated disc L4-5 to the left of the midline
with elements of spinal stenosis. Dr. Barakat observed a limited range of motion on a straightleg raise test and decreased sensation in Steffen’s left foot. Dr. Barakat performed several
follow-up examinations over the following months, ultimately leading to physical therapy and
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epidural steroid injections; the treatments alleviated Steffen’s symptoms somewhat, but he still
complained of pain. Progress notes during this period of time reflect continued pain but indicate
that Steffen’s gait, balance, and musculoskeletal strength were all within normal limits.
At the direction of a doctor from Disability Determination Services (“DDS”), Steffen
underwent a consultative internal examination by Dr. Roopa Karri. Dr. Karri examined Steffen
and reviewed his medical records. She observed that his gait was normal with no limp, and that
his grip strength and range of motion were normal. Dr. Karri also noted generalized pain
practically everywhere Steffen was touched, along with tenderness on 16 of the 18 tender points
used to diagnose fibromyalgia. Dr. Karri observed no signs of depression, agitation, or anxiety.
Her report identified four problems: (1) a history of severe fibromyalgia with tenderness all over
the body; (2) hypertension and hypercholesterolemia; (3) a history of right elbow pain of unclear
etiology with decreased range of motion; and (4) a history of stuttering, with the observation that
Steffen stuttered on and off during the examination but “was completely understandable.”
B.

The Administrative Hearing

The ALJ held a hearing at which Steffen and Thomas Dunleavy, a vocational expert
(“VE”), testified.
Steffen testified as follows. He takes pain medication daily, and while the medication is
helpful, it merely “takes the edge off” the pain without completely alleviating it. Steffen does
not think as clearly when on pain medication. He is capable of walking “maybe across the hall”
without pain medication, but with such medication he can walk up to three-and-a-half to four
miles. Steffen experiences pain while exercising. Sitting for an hour or more also causes pain,
requiring that he get up and move around. He often wakes up during the night due to pain.
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Steffen needs to lie down for a period of time every day. The severity of his pain fluctuated, and
at its worst prevented him from exercising for a week or two at a time.
Steffen further testified that he could lift up to 50 pounds while using pain medication,
but that doing so would cause discomfort and pain. It is difficult for him to climb stairs, bend,
stoop, crouch, crawl or kneel. Steffen also experiences difficulties in personal care; he needs his
wife’s assistance to wash his back and button the top buttons of his shirt. Steffen rarely cooks or
does the grocery shopping, but he drives with some discomfort on a fairly regular basis. Steffen
does not do much laundry or cleaning, but does some yard work, mows the lawn with a selfpropelled lawnmower, and takes out the garbage. On an ordinary day, Steffen reads the
newspaper and does a Sudoku puzzle while waiting for his pain medication to kick in. When he
feels good enough to exercise, he does so, usually by walking around the neighborhood.
Steffen also testified that he and his son took a train trip to Colorado during the prior year
and that the trip was greatly uncomfortable. While in Colorado, Steffen attempted to snowboard
for about an hour every day for three or four days. While at home, Steffen occasionally tries to
shoot baskets with his son. He socializes with friends and family and attends church regularly.
Steffen has struggled with a stutter for his entire life, which presents difficulties when on the
phone, in social activities, and occasionally at jobs.
When asked about Dr. Gasser’s diagnosis that Steffen had a dysthymic disorder, Steffen
indicated that he did not “consider myself depressed,” but was merely trying to cope with the
fact that he was unable to work. He never sought the services of a psychiatrist, and his doctor
had never suggested that he see one.

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The VE testified regarding Steffen’s previous work and his prospects for other work in
the Chicago metropolitan area. VE testimony helps to determine “whether [the claimant’s] work
skills can be used in other work and the specific occupations in which they can be used.” 20
C.F.R. § 404.1566(e). At a hearing, a VE may “respon[d] to a hypothetical question about
whether a person with the physical and mental limitations imposed by the claimant’s medical
impairment(s) can meet the demands of the claimant’s previous work, either as the claimant
actually performed it or as generally performed in the national economy.” 20 C.F.R.
§ 404.1560(b)(2).
The VE opined that Steffen’s previous work as a plumber was unskilled with a heavy
level of exertion, that his part-time job cleaning molds was unskilled work with a medium level
of exertion, and that his experience running a business and working as a machinist was skilled
work requiring a medium level of exertion. The VE estimated that there were potentially 1,000
to 1,500 jobs involving light or sedentary work that would utilize Steffen’s skills, including
working in computer-aided design.
The ALJ then asked the VE a series of hypothetical questions. The first asked what sort
of and how many jobs were available in the Chicago metropolitan area for an individual of
Steffen’s age, with his education and work experience, who was limited to light work. The VE
estimated that there would be at least 10,000 cashier jobs, at least 15,000 assembler jobs, and
nearly 7,000 packager jobs within the area. The ALJ then refined the hypothetical, asking about
the availability to such a person of sedentary work with an option to sit or stand at will. The VE
estimated that there were approximately 3,000 cashier jobs, 4,000 assembler jobs, and 3,000

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sorter or inspector jobs. With the additional hypothetical limitation that the worker could have
only occasional contact with the public, the VE excluded the cashier jobs from the pool.
Steffen’s counsel then asked the VE how the availability of jobs would be affected if the
individual suffered from frequent loss of work as well as the need for frequent long rest periods,
from one-third to two-thirds of the time. The VE replied that it would preclude the individual
from holding any of the jobs that he had mentioned.
C.

The Commissioner’s Decision

The ALJ issued a decision finding that Steffen was not disabled and was therefore not
eligible for DIB. The ALJ followed the “five-step sequential evaluation process” for
determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v). The five
steps are as follows:
The first step considers whether the applicant is engaging in substantial
gainful activity. The second step evaluates whether an alleged physical or
mental impairment is severe, medically determinable, and meets a
durational requirement. The third step compares the impairment to a list of
impairments [in 20 C.F.R. § 404, subpart P, app. 1] that are considered
conclusively disabling. If the impairment meets or equals one of the listed
impairments, then the applicant is considered disabled; if the impairment
does not meet or equal a listed impairment, then the evaluation continues.
The fourth step assesses an applicant’s residual functional capacity (RFC)
and ability to engage in past relevant work. If an applicant can engage in
past relevant work, he is not disabled. The fifth step assesses the
applicant’s RFC, as well as his age, education, and work experience to
determine whether the applicant can engage in other work. If the applicant
can engage in other work, he is not disabled.
Weatherbee v. Astrue, 649 F.3d 565, 569 (7th Cir. 2011) (internal quotation marks omitted); see
also Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004). RFC “is defined as ‘the most [the
claimant] can still do despite [his] limitations.’” Weatherbee, 649 F.3d at 569 n.2 (alterations in
original) (quoting 20 C.F.R. §§ 404.1545(a), 416.945(a)). “A finding of disability requires an
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affirmative answer at either step three or step five. The claimant bears the burden of proof at
steps one through four, after which at step five the burden shifts to the Commissioner.” Briscoe
ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005). At the fifth step, the government
“must present evidence establishing that the claimant possesses the [RFC] to perform work that
exists in a significant quantity in the national economy.” Weatherbee, 649 F.3d at 569 (footnote
omitted).
Here, the ALJ determined at step one that Steffen had engaged in “substantial gainful
activity” but stopped doing so in January 2006. At step two, the ALJ determined that Steffen
suffers from a “severe impairment,” fibromyalgia. The ALJ rejected Steffen’s submission that
his hypertension constituted a severe impairment, noting that there was no evidence that Steffen
had suffered end-organ damage as a result of hypertension and that the evidence showed Steffen
to be non-compliant with his blood pressure medication. The ALJ also found that Steffen’s
speech impediment did not constitute a severe impairment, noting that Dr. Karri had determined
that his speech was totally understandable; the ALJ further noted, based on observing Steffen’s
testimony and that fact that he previously was able to work and attend school, that Steffen was
able to socially interact with others. Finally, the ALJ found that although Dr. Gasser had
diagnosed Steffen with dysthymic disorder, Steffen showed no signs of depression in subsequent
examination, and no corroborating evidence indicated that he suffered any limitations in his
activities of daily living, social functioning, or concentration, persistence, or pace, or any
episodes of decompensation. At step three, the ALJ concluded that Steffen’s fibromyalgia did
not meet or equal any of the listings in 20 C.F.R. Part 404, Subpart P, Appendix 1.

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At step four, the ALJ found that Steffen had the RFC to perform unskilled sedentary
work, provided that he was able to change positions and sit or stand at will. In so finding, the
ALJ recited much of the medical evidence noted above, including evidence of Steffen’s range of
motion and grip strength; his self-assessed rating of his pain as a five on a scale one to ten; Dr.
Karri’s assessment of his ability to speak; Steffen’s and his doctor’s assessment of his lack of
depression and anxiety; and various treatments Steffen had undergone for his heel and back pain.
After discussing this evidence, the ALJ concluded:
Neither the weight of the documentary evidence nor claimant’s own
testimony support the opinion from claimant’s treating physician on June
12, 2006 that the claimant is incapable of working. The objective physical
examination results reported in the claimant’s medical record have been
largely unremarkable. Range of motion, strength and neurological testing
have, for the most part, been within normal range. Claimant also testified to
being capable of performing a fairly broad range of activities of daily living
including: exercising, driving, attending church and taking a trip to
Colorado. Testimony also revealed that he is able to fully sustain the
requisite attention and concentration to do such tasks as reading a
newspaper. Allowing, however, for the fact that fibromyalgia diagnosis is
not an objectively concise one and allowing for claimant’s potentially
legitimate need for frequent position changes, there is nothing to show that
claimant is precluded from unskilled sedentary exertional level work
allowing for an opportunity to sit or stand at will.
After considering the evidence of record, the undersigned finds that
the claimant’s medically determinable impairment could reasonably be
expected to produce the alleged symptoms, but that the claimant’s
statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible.
Based on this assessment of Steffen’s RFC, the ALJ concluded that Steffen was unable to
perform any past relevant work, given that working as a machinist and plumber involves
medium or heavy exertion, falling outside of his RFC.

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Finally, at step five, the ALJ concluded that Steffen was capable of performing other jobs
available in substantial numbers in the Chicago metropolitan area. In particular, based on the
VE’s testimony, the ALJ found that jobs in representative occupations such as cashier,
assembler, and sorter/inspector were available for persons of Steffen’s age, education, work
experience and with an RFC allowing unskilled sedentary work with an option to sit or stand at
will. Therefore, the ALJ found Steffen not to be disabled and declared him ineligible for DIB.
Discussion
A claimant is disabled under the Social Security Act if he or she is unable to perform
“any substantial gainful activity by reason of a medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The
claimant has the burden of showing that his impairments prevent him from performing prior
employment and any other job generally available in the national economy. 42 U.S.C.
§ 423(d)(2)(A). As noted above, because the Social Security Appeals Council declined to
review the ALJ’s decision that Steffen was not disabled, the ALJ’s decision became the
Commissioner’s final decision.
Section 405 of the Act authorizes judicial review of the Commissioner’s final decision.
See 42 U.S.C. § 405(g). The court reviews the Commissioner’s legal determinations de novo
and the factual findings deferentially, affirming those findings so long as they are supported by
substantial evidence. See Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010); 42 U.S.C.
§ 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive”). Substantial evidence means “such relevant evidence
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as a reasonable mind might accept as adequate to support a conclusion”; it “must be more than a
scintilla but may be less than a preponderance.” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir.
2007) (internal quotation marks omitted). If the reviewing court finds that the Commissioner’s
decision is not supported by substantial evidence, “a remand for further proceedings is [usually]
the appropriate remedy.” Briscoe, 425 F.3d at 355. Moreover, the court “cannot uphold an
administrative decision that fails to mention highly pertinent evidence,” Parker v. Astrue, 597
F.3d 920, 921 (7th Cir. 2010), or a decision containing errors of law, Schmidt v. Astrue, 496 F.3d
833, 841 (7th Cir. 2007).
In addition to satisfying these standards, the Commissioner’s opinion must build an
“accurate and logical bridge from the evidence to [the] conclusion so that [the] reviewing court[]
may assess the validity of the agency’s ultimate findings and afford a claimant meaningful
judicial review.” Young v. Barnhart, 362 F.3d 995, 1002 (7th Cir. 2004) (internal quotation
marks omitted); accord Briscoe, 425 F.3d at 351 (“In addition to relying on substantial evidence,
the ALJ must also explain his analysis of the evidence with enough detail and clarity to permit
meaningful appellate review.”); Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001) (holding
that the Commissioner must “articulate at some minimal level [his] analysis of the evidence to
permit an informed review”) (internal quotation marks omitted). To build a logical bridge, the
Commissioner must “sufficiently articulate his assessment of the evidence to assure [the court]
that he considered the important evidence and to enable [the court] to trace the path of his
reasoning.” Hickman v. Apfel, 187 F.3d 683, 689 (7th Cir. 1999) (internal quotation marks
omitted). The court “cannot uphold a decision by an administrative agency … if, while there is
enough evidence in the record to support the decision, the reasons given by the trier of fact do
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not build an accurate and logical bridge between the evidence and the result.” Sarchet v. Chater,
78 F.3d 305, 307 (7th Cir. 1996).
Steffen challenges the conclusions reached by the ALJ’s opinion at steps two, three, four,
and five. The court agrees with Steffen with respect to steps two and four, as the ALJ’s opinion
at those steps does not adequately connect its conclusions to the evidence in the record.
A.

Step Two: Severe Impairment

Steffen of course does not challenge the ALJ’s finding that he has fibromyalgia and that
fibromyalgia constitutes a severe impairment. But Steffen faults the ALJ for concluding that his
other ailments are not severe impairments. “A severe impairment is an impairment or
combination of impairments that ‘significantly limits [one’s] physical or mental ability to do
basic work activities.’” Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010) (quoting 20 C.F.R.
§ 404.1520(c)) (alteration in original). “Basic work activities” means “the abilities and aptitudes
necessary to do most jobs,” including: “(1) Physical functions such as walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, or handling; (2) Capacities for seeing, hearing, and
speaking; (3) Understanding, carrying out, and remembering simple instructions; (4) Use of
judgment; (5) Responding appropriately to supervision, co-workers and usual work situations;
and (6) Dealing with changes in a routine work setting.” 20 C.F.R. § 404.1521(b).
Although substantial evidence supports the ALJ’s conclusion with respect to the three
individual non-fibromyalgia impairments (hypertension, a speech impediment, and foot
problems) listed in Steffen’s DIB application, the ALJ’s opinion does not sufficiently consider
all of the listed impairments in combination, as Social Security regulations required it to do. See
20 C.F.R. § 404.1523 (“In determining whether your physical or mental impairment or
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impairments are of a sufficient medical severity that such impairment or impairments could be
the basis of eligibility under the law, we will consider the combined effect of all of your
impairments without regard to whether any such impairment, if considered separately, would be
of sufficient severity. If we do find a medically severe combination of impairments, the
combined impact of the impairments will be considered throughout the disability determination
process.”). In particular, the ALJ’s opinion does not evaluate whether the other impairments
“exacerbat[ed] the problems created” by Steffen’s fibromyalgia. Parker, 597 F.3d at 923; see
also Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009); Green v. Apfel, 204 F.3d 780, 782 (7th
Cir. 2000).
The opinion’s “failure to consider the cumulative effect of impairments not totally
disabling in themselves was an elementary error.” Parker, 597 F.3d at 923. The ALJ might
have concluded, based on the record evidence, that no combination of Steffen’s fibromyalgia
with his other impairments constitutes a severe impairment independent of fibromyalgia. But no
evaluation of this question was made, warranting a remand. See Terry, 580 F.3d at 477 (“Some
of Terry’s other arguments warrant remand as well. … [T]he ALJ’s opinion does not even
mention Terry’s pelvic floor and urinary disorders, impairments that must be considered to
determine whether an applicant is disabled. Although these impairments may not on their own
be disabling, that would only justify discounting their severity, not ignoring them altogether.
Moreover, we have frequently reminded the agency that an ALJ must consider the combined
effects of all of the claimant’s impairments, even those that would not be considered severe in
isolation.”); Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003) (“Golembiewski has a
host of significant medical conditions, including the partially amputated leg, epilepsy, back pain,
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bowel and bladder dysfunction, and grasping problems that we have discussed. Having found
that one or more of Golembiewski’s impairments was ‘severe,’ the ALJ needed to consider the
aggregate effect of this entire constellation of ailments—including those impairments that in
isolation are not severe. On remand the agency must remember that a competent evaluation of
Golembiewski’s application depends on the total effect of all his medical problems.”) (citations
omitted); Green, 204 F.3d at 782 (remanding because “[e]ven if the shortness of breath and the
chest pain were not in themselves enough to disable Green from doing medium work, the
combination of these conditions together with his arthritis and swollen leg may have been”).
For the sake of completeness, the court notes that Steffen’s other step two challenges are
without merit. Steffen faults the ALJ for not considering several of his alleged impairments,
including right elbow problems, blurred vision, peptic ulcer, and spinal disc desiccation
protrusion. In his DIB application and at the hearing, however, Steffen did not press any of
those impairments. The ALJ “is entitled to assume that the applicant is making his strongest
case for benefits,” Glenn v. Sec’y of Health & Human Servs., 814 F.2d 387, 391 (7th Cir. 1987),
and potential impairments must be presented either in the application or at the hearing. See
Brihn v. Astrue, 332 F. App’x 329, 332-33 (7th Cir. 2009). The ALJ was not obligated to
address those additional impairments.
Steffen also contends that no evidence supports the ALJ’s conclusions that he was noncompliant with his blood pressure medication and that no end-organ damage had occurred as a
result of his hypertension. Steffen is wrong; the ALJ referenced medical reports indicating that
Steffen was not taking his prescribed blood pressure medication and that his organ function
appeared normal. Steffen next maintains that the ALJ incorrectly concluded that his stuttering,
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standing alone, was not a severe impairment. But the ALJ relied on medical reports indicating
that although Steffen stutters, he is completely understandable. The ALJ was entitled to credit
this evidence, particularly given that no other medical evidence indicated that Steffen could not
be understood; the ALJ also was entitled to observe that Steffen’s speech impediment posed no
difficulty at the hearing and that it had not interfered with his other life activities.
Steffen further contends that the ALJ failed to consider his dysthymia and depression
using the “special technique” set forth in 20 C.F.R. § 404.1520a, under which an ALJ considers
a claimant’s limitations in: (1) activities of daily living, (2) social functioning, and (3)
concentration, persistence, or pace, and ranks them on a five-point scale ranging from none,
mild, moderate, marked, and extreme, after which the ALJ is to enumerate any episodes of
decompensation. Contrary to Steffen’s submission, the ALJ followed this procedure. The ALJ
noted that while Dr. Gasser opined in May 2006 that Steffen had dysthymia, Dr. Karri’s May
2006 report indicated that he showed no signs of depression. The ALJ further noted that any
mental difficulties suffered by Steffen caused no limitation in his daily living, social functioning,
or concentration, persistence, or pace, and that he had experienced no episodes of
decompensation. The ALJ’s opinion followed the special technique and supported its conclusion
with substantial evidence.
B.

Step Four: The RFC Determination

The ALJ determined that Steffen has an RFC permitting him to perform unskilled
sedentary work, provided that he have the option to move about and sit or stand at will.
Although Steffen does not contest the ALJ’s conclusion that his RFC does not allow him to
perform his past work, which requires medium to heavy exertion, he argues that the RFC finding
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is erroneous because he is not capable of working at all. A review of the ALJ’s opinion reveals
that its RFC analysis does not build “an accurate and logical bridge” between the evidence and
its conclusions. Young, 362 F.3d at 1002 (internal quotation marks omitted). This, too, requires
a remand.
The ALJ’s opinion does not adequately consider Steffen’s subjective experience of pain
and Dr. Gasser’s opinion that the pain that Steffen experiences from fibromyalgia makes it
impossible for him to work. Precedent holds that where the subjective experience of pain does
not correspond with objective medical indicators regarding the pain, the ALJ must make a
credibility determination regarding claimant’s description of his symptoms, and that if the ALJ
rejects the claimant’s description of his symptoms, the opinion must articulate specific reasons
for doing so. See Parker, 597 F.3d at 921-23; Villano v. Astrue, 556 F.3d 558, 562-63 (7th Cir.
2009); Ribaudo v. Barnhart, 458 F.3d 580, 584-85 (7th Cir. 2006); Lopez ex rel. Lopez v.
Barnhart, 336 F.3d 535, 539-40 (7th Cir. 2003). True, an ALJ’s credibility determination is
“entitled to special deference because the ALJ is in a better position than the reviewing court to
observe a witness.” Briscoe, 425 F.3d at 354. It is also true that a reviewing court may
“overturn a credibility determination only if it is patently wrong,” Craft, 539 F.3d at 678, or if
the ALJ fails to “justif[y] her conclusions with reasons that are supported by the record.”
Richards v. Astrue, 370 F. App’x 727, 731 (7th Cir. 2010); see also Villano, 556 F.3d at 562. To
build the required logical bridge for a credibility determination, however, the ALJ must consider
not only the objective medical evidence, but also the claimant’s daily activity; the duration,
frequency, and intensity of pain; any precipitating and aggravating factors; the dosage,
effectiveness, and side effects of medication; and functional restrictions. SSR 96-7p, 1996 WL
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374186, at *3 (July 2, 1996); accord Villano, 556 F.3d at 562-63 (requiring an analysis of the
factors listed in SSR 96-7p as part of building a logical bridge for credibility determinations).
Moreover, “[u]nder Social Security Ruling 96-7p, an ALJ’s evaluation of a[n] applicant’s
credibility must be specific enough to make clear to [the court] how much weight the ALJ gave
to the applicant’s testimony and the reasons for that decision.” Hill v. Astrue, 295 F. App’x 77,
81 (7th Cir. 2008); see also Terry, 580 F.3d at 477 (“[T]he ALJ must consider the claimant’s
level of pain, medication, treatment, daily activities, and limitations, 20 C.F.R. § 404.1529(c),
and must justify the credibility finding with specific reasons supported by the record.”).
The ALJ’s opinion offers inadequate support for its credibility determination. As noted
above, the opinion states:
After considering the evidence of record, the undersigned finds the
claimant’s medically determinable impairment could reasonably be
expected to produce the alleged symptoms, but that the claimant’s
statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible.
The Seventh Circuit has held that this “not entirely credible” language “is not only boilerplate; it
is meaningless boilerplate” because it “yields no clue to what weight the trier of fact gave the
testimony.” Parker, 597 F.3d at 922; see Chase v. Astrue, 458 F. App’x 553, 558 (7th Cir. 2012)
(holding that the ALJ’s “fail[ure] to specify which statements are or are not credible … leaves us
with no basis to review” the ALJ’s credibility and RFC determinations); Martinez v. Astrue, 630
F.3d 693, 696 (7th Cir. 2011) (the ALJ’s finding that the claimant’s testimony was “not entirely
credible” provides “no explanation of which of [the claimant’s] statements are not entirely
credible or how credible or noncredible any of them are”).

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The Commissioner’s brief argues that the ALJ’s credibility assessment was appropriate
because it followed immediately from a recitation of medical evidence indicating that Steffen
has a normal range of motion, strength, and gait, and of Steffen’s own statements that he can
perform numerous ordinary daily activities. But a recitation of facts in close proximity to
conclusions leaves it unclear what weight the facts were given and what conclusions they
support, and thus does not constitute the “accurate and logical bridge” between evidence and
conclusions necessary for the court to properly review an RFC determination. See Young, 362
F.3d at 1002; Parker, 597 F.3d at 922. Indeed, the ALJ’s opinion recited the same evidence
immediately before its conclusion that Steffen’s fibromyalgia would limit his RFC to jobs
permitting him to sit or stand at will. Without an explication of the ALJ’s thought process, the
court cannot determine whether the summary of the medical evidence and Steffen’s daily
activities was meant to support the necessity of postural changes, the credibility determination,
neither, or both. Nothing in the ALJ’s opinion connects the facts regarding the medical evidence
to the conclusion that Steffen’s statements about the “intensity, persistence and limiting effects
of these symptoms” were “not entirely credible.” Furthermore, the opinion does not say which
symptoms Steffen had inaccurately described. Even if the court assumed that the ALJ
discredited Steffen’s testimony about the intensity of his pain, a reasoned connection to the facts
supporting the adverse credibility determination was necessary, as “an ALJ may not discredit
testimony of pain solely because there is no objective medical evidence to support it.” Myles v.
Astrue, 582 F.3d 672, 677 (7th Cir. 2009); see 20 C.F.R. § 404.1529(c)(2); Goble v. Astrue, 385
F. App’x 588, 592 (7th Cir. 2010) (citing cases); Parker, 597 F.3d at 922 (“the etiology of
extreme pain often is unknown, and so one can’t infer from the inability of a person’s doctors to
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determine what is causing her pain that she is faking it”); Scheck, 357 F.3d at 703 (holding that
the absence of an “objective medical basis” is just one factor among many in determining
whether a claimant’s testimony regarding pain is credible); Sarchet v. Chater, 78 F.3d 305, 307
(7th Cir. 1996) (noting that fibromyalgia is not susceptible to “objective clinical tests”). Without
some explanation that connects the evidence to the ALJ’s conclusion, the basis for the adverse
credibility determination is unclear and unreviewable.
The Commissioner’s brief also contends that the adverse credibility determination could
be supported by the fact that Steffen had personally assessed his own pain as being a five on a
scale of one to ten during his May 2006 appointment with Dr. Gasser. This fact, the brief
asserts, was “indicative of some limitations, but not completely disabling pain.” Doc. 36 at 12.
The argument seems reasonable, but it cannot be considered here because the ALJ did not offer
the argument as a basis for rejecting Steffen’s assessment of his pain. Settled law holds that the
court’s review is limited to the reasons and logical bridges articulated in the ALJ’s decision, and
may not consider the post-hoc rationales submitted in the Commissioner’s brief. See SEC v.
Chenery Corp., 318 U.S. 80, 87-88 (1943); Roddy v. Astrue, 705 F.3d 631, 637 (7th Cir. 2013);
Martinez, 630 F.3d at 694; Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010) (holding that “a
persuasive brief [cannot] substitute for” the ALJ’s deficient opinion); Larson v. Astrue, 615 F.3d
744, 749 (7th Cir. 2010).
Another problem with the opinion’s RFC determination is that it does not adequately
explain why the ALJ discounted Dr. Gasser’s opinion that Steffen was permanently disabled and
unable to work. Generally, the ALJ must give “controlling weight” to the medical opinion of a
treating physician “if it is ‘well-supported by medically acceptable clinical and laboratory
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diagnostic techniques and is not inconsistent with other substantial evidence.’” Larson, 615 F.3d
at 749 (quoting 20 C.F.R. § 404.1527(c)(2)); see also Roddy, 705 F.3d at 636; Scott, 647 F.3d
734, 739 (7th Cir. 2011); Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011). An ALJ must
offer “good reasons” for discounting a treating physician’s opinion. Larson, 615 F.3d at 749
(internal quotation marks omitted). Put another way, “[e]ven though the ALJ was not required to
give Dr. [Gasser’s] opinion controlling weight, [the ALJ] was required to provide a sound
explanation to reject it.” Roddy, 705 F.3d at 636 (citations omitted).
The ALJ’s opinion does discuss some portions of the medical record in concluding that
“[n]either the weight of the documentary evidence nor claimant’s own testimony” supported Dr.
Gasser’s opinion that Steffen was incapable of working. But the opinion does not indicate what
weight, if any, was afforded Dr. Gasser’s opinion. See Larson, 615 F.3d at 751 (“Even if the
ALJ had articulated good reasons for rejecting [the treating physician’s] opinion, it still would
have been necessary to determine what weight his opinion was due under the applicable
regulations.”) (citing 20 C.F.R. § 404.1527(c)(2)). The opinion’s rationale is “merely recitation
of information contained in [Steffen’s] medical records,” and does not articulate the relative
weight given to Dr. Gasser’s opinion and that of the doctors who found Steffen to have normal
capabilities. Craft v. Astrue, 539 F.3d 668, 677 (7th Cir. 2008). The ALJ is obligated to at least
“minimally articulate [the] reasons” for discounting a treating physician’s medical opinion, and
must identify the inconsistencies relied upon in discrediting such opinion. See Clifford v. Apfel,
227 F.3d 863, 870-71 (7th Cir. 2000). That was not done here.
To summarize, the ALJ’s RFC determination does not “enable [the court] to trace the
path of [its] reasoning,” Hickman, 187 F.3d at 689 (internal quotation marks omitted), and thus
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fails to provide a logical bridge between the evidence and the RFC conclusion. See Scott, 647
F.3d at 740 (finding no logical bridge where the ALJ did not “explain how she reached her
conclusions about Scott’s physical abilities” in the face of conflicting medical evidence); Craft,
539 F.3d at 677-78 (finding no logical bridge “between the ALJ’s recitation of [the claimant’s]
medical evidence and the” RFC finding, where the ALJ recited much of the evidence “without a
determination of weight”); see also Martinez, 630 F.3d at 696-97; Briscoe, 425 F.3d at 352;
Hickman, 187 F.3d at 689. Seventh Circuit precedent consistently holds that such decisions
cannot stand and must be remanded for further consideration. See Bjornson v. Astrue, 671 F.3d
640, 649 (7th Cir. 2012); Scott, 647 F.3d at 740; Martinez, 630 F.3d at 697-99.
Conclusion
For the foregoing reasons, the court grants Steffen’s motion for summary judgment,
denies the Commissioner’s motion for summary judgment, and remands the case to the
Commissioner for further review consistent with this opinion.

May 23, 2013
United States District Judge

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