McKinnie v. Astrue

Filing 26

MEMORANDUM Opinion and Order Signed by the Honorable Nan R. Nolan on 3/26/2010.Mailed notice(lxs, )

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS E A S T E R N DIVISION F R A N K L. MCKINNIE, P la in tiff, v. M IC H A E L J. ASTRUE, C o m m is s io n e r of Social Security, D e fe n d a n t. ) ) ) ) ) ) ) ) ) )

C a s e No. 09 C 0614 M a g is tra te Judge Nan R. Nolan

M E M O R A N D U M OPINION AND ORDER P la in tif f Frank McKinnie claims that he is disabled because of arthritis, muscle spasms, b a c k pain, gout, hypertension, and obesity. He seeks judicial review of the final decision of the C o m m is s io n e r of Social Security (the "Commissioner") denying his claims for Social Security D is a b ility Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II a n d XVI of the Social Security Act (the "Act"), 42 U.S.C. §§ 405(g), 1383(c)(3). The parties h a v e consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) and have filed cross-motions for summary judgment. For the reasons explained below, th e ALJ's decision is reversed and this case is remanded for further proceedings consistent with th is opinion. P R O C E D U R A L HISTORY M r. McKinnie applied for DIB and SSI on August 1, 2006, alleging that he became d is a b le d on April 15, 2001.1 (R. 155-62). The application was denied initially on September 28, 2 0 0 6 , and upon reconsideration on December 20, 2006. (R. 74-77). Mr. McKinnie appealed th e Commissioner's decision and requested an administrative hearing on January 29, 2007. (R.

1

This is Mr. McKinnie's second application for Social Security benefits; he applied and was denied in 1989. (R. 147).

101). The hearing was held before an Administrative Law Judge (the "ALJ") on July 10, 2008. (R . 30-73). On September 11, 2008, the ALJ denied Mr. McKinnie's claims for benefits. (R. 151 7 ). The ALJ found that Mr. McKinnie has multiple severe impairments, but that he retains the c a p a c i t y to perform jobs that exist in sufficient numbers in the national economy. (R. 18-29). On December 19, 2008, the Appeals Council denied Mr. McKinnie's request for review. (R. 13 ). Thereby, the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R § 416.1481. F A C T U A L BACKGROUND M r. McKinnie was born on November 24, 1959, and was 48 years old at the time of the h e a rin g before the ALJ. (R. 159). He has two years of college education. (R. 38). Mr.

M c K in n ie 's injuries date back to a car accident in 1989. (R. 39-40). He testified that he had to u n d e rg o therapy "to learn how to walk and everything again" after the accident. (R. 40). Mr. M c K in n ie then worked as a fork lift operator and materials handler until April 15, 2001, when he c e a s e d working entirely. (R. 169). Mr. McKinnie sought certification in asbestos removal in

2 0 0 3 , but he was unable to complete the physical portions of the training and thus could not c o m m e n c e work in the field. (R. 38-39). A. M e d ic a l Evidence A lth o u g h several of Mr. McKinnie's impairments stem from his 1989 car accident, the f irs t medical report in the record is from February 6, 2003, when Mr. McKinnie sought a physical f ro m his regular physician, Dr. Bernie Thomas of the W o o d la w n Adult Health Center, pursuant to Mr. McKinnie's asbestos removal training. (R. 253). At that appointment, Dr. Thomas

e v a lu a te d Mr. McKinnie for hypertension, examined his wrist and the pin that had been placed in it following his car accident, and subsequently determined that Mr. McKinnie had tested p o s itiv e for Hepatitis B. (R. 216-17).

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The next medical report in the record is from October 25, 2005, when Mr. McKinnie had a n o th e r checkup with Dr. Thomas. (R. 250). Dr. Thomas' notes are generally illegible, but Dr. T h o m a s did note clearly that Mr. McKinnie still complained of lower back pain and knee pain, as w e ll as right wrist and right ankle trauma from the 1989 car accident. Id. Dr. Thomas also n o te d tenderness on examination and a limited range of motion, and prescribed Robaxin, Ib u p ro f e n , and Tylenol. Id. At Mr. McKinnie's hearing, the ALJ noted that there were no (R. 51). Mr. McKinnie

m e d ic a l reports in the record from February 2003 to October 2005.

e x p la in e d that this gap exists because "my grandmother started forcing me to go to the doctor m o re because I'm actually afraid of doctors." Id. Mr. McKinnie returned to Dr. Thomas for three more checkups between January and J u ly of 2006. (R. 248-49, 251). Notes from these checkups reveal diagnoses of hypertension a n d obesity, as well as referral to an orthopedic specialist to further examine Mr. McKinnie's lin g e rin g injuries from the 1989 car accident. Id. On February 23, 2006, Mr. McKinnie

u n d e rw e n t x-ray examinations at Stroger Hospital of Cook County for multiple pain sites. (R. 2 3 4 -4 1 ). The x-rays revealed mild diffuse degenerative changes in Mr. McKinnie's right ankle, le f t knee, right wrist, and spine. Id. On April 3, 2006, an orthopedic doctor reviewed the x-rays a n d examined Mr. McKinnie's right ankle, left knee, right wrist, and spine. (R. 242). The

o rth o p e d is t's full diagnosis is difficult to discern, but his notes reveal findings of osteophytes on M r . McKinnie's spine and right wrist. Id. The orthopedist also noted that surgery was not

n e e d e d at the time, but that Mr. McKinnie should return to his regular treating physician to m a n a g e his chronic pain. Id. M r. McKinnie also underwent consultative examinations by the Bureau of Disability D e te rm in a tio n Services ("DDS") in September of 2006. (R. 22). Liana G. Palacci, D.O.,

p e rf o rm e d the first consultative examination on September 12, 2006. (R. 221-24). Her clinical im p re s s io n s were complaints of low back pain and history of right ankle fracture. (R. 224).
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Next, non-examining medical consultant, Barry Free, M.D., reviewed Mr. McKinnie's file for a l le g a t io n s of arthritis, lower back pain and a broken right ankle on September 21, 2006. (R. 2 2 6 -2 7 ). Dr. Free found Mr. McKinnie had cooperated but that there was not enough objective m e d ic a l evidence to make a disability determination. Id. Paul Smalley, M.D., another non-

e x a m in in g medical consultant, also examined the file on September 21, 2006, and found Mr. M c K in n ie 's combination of impairments to be non-severe. (R. 228-29). Upon reconsideration o n December 12, 2006, Calixto Aquino, M.D., a third and final non-examining medical c o n s u lta n t, confirmed Dr. Smalley's assessment without explanation. M r. McKinnie returned to see Dr. Thomas regarding his health conditions in January, M a y, and September of 2007. (R. 262-64). During the May 2007 examination, Dr. Thomas first d i a g n o s e d Mr. McKinnie with gout and also noted a diagnosis of "CKD." (R. 263). Dr. Thomas re c o n firm e d this diagnosis of gout during the September 2007 examination, and again noted a d ia g n o s i s of "CKD." (R. 262). The most common medical definition of "CKD" is Chronic Kidney D is e a s e . 2 T h e final two medical reports in the record are Dr. Thomas' answers to an Arthritis R e s id u a l Functional Capacity Questionnaire on February 14, 2008 (R. 244-46) and Dr. Thomas' n o te s from a checkup with Mr. McKinnie on April 7, 2008. (R. 261). W ith regard to Mr.

M c K in n ie 's Residual Functioning Capacity ("RFC"), Dr. Thomas noted diagnoses of CKD, gout, a n d hypertension. (R. 244). He stated that Mr. McKinnie experienced pain at an intensity of 8, w ith objective signs of reduced range of motion, joint instability, sensory changes, tenderness, re d n e s s , and muscle spasms. Id. Dr. Thomas opined that Mr. McKinnie's symptoms would f re q u e n tly be severe enough to interfere with the attention and concentration needed to perform s im p le work tasks during a typical workday. (R. 245). Dr. Thomas further asserted that Mr. M c K in n ie could remain standing and sitting for 30 minutes each before needing to change
2

National Kidney Foundation ­ Chronic Kidney Disease, h ttp ://w w w .k id n e y.o rg /k id n e yd is e a s e /c k d /
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positions, and that in an 8-hour workday he could sit and stand/walk for less than 2 hours each, a lth o u g h he would not need a job that would permit shifting positions from sitting, standing, or w a lk in g at will. Id. Dr. Thomas also stated that with prolonged sitting Mr. McKinnie's legs

s h o u ld be elevated to a level of 4 feet; if Mr. McKinnie had a sedentary job, his legs would need to be elevated 15% of the time. Id. Mr. McKinnie could never lift 50 or even 20 pounds in a c o m p e t i tiv e work situation according to Dr. Thomas, but he could rarely lift 10 pounds and o c c a s io n a lly less than 10 pounds. (R. 246). Dr. Thomas concluded that Mr. McKinnie's

im p a irm e n ts were likely to produce "good days" and "bad days," and that we would be absent f ro m work due to his impairments four days per month on average. Id. At the final checkup in th e record from April 7, 2008, Dr. Thomas again noted diagnoses of gout and CKD. (R. 261). B. P la in tiff's Testimony M r. McKinnie testified before the ALJ on July 10, 2008, with attorney Matthew Edwards a s his counsel. (R. 30-73). As noted above, Mr. McKinnie testified that his injuries began with a m o to r vehicle accident in 1989. (R. 39). Following his recovery, which took two and a half ye a rs , Mr. McKinnie could no longer work in construction as he had before. (R. 40). He

te s tif ie d that he was able to perform forklifting jobs for several years, but quit forklift work in 1 9 9 8 because he could not handle the pains from driving the forklift anymore. Id. Mr. McKinnie th e n transitioned to work as a material handler, which involved lifting 40 to 50 pounds at times, b u t he testified that he got to the point where he could not do that work anymore either because h e was losing his balance frequently. (R. 40-41). Mr. McKinnie further testified that he then started trying to see his physician more often d u e to his "severe pains." (R. 41). He stated that he suffered broken bones in his car accident o f 1989 that ranged from his ribs through his left knee, including his wrist in three places. (R. 4 1 - 4 2 ) . Surgeons could not operate on his back at the time, Mr. McKinnie testified, because the d a m a g e was too close to his spinal cord. (R. 42).
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Mr. McKinnie explained that he lives on the second floor of a family-owned apartment b u ild in g with his aunt and uncle. (R. 42). He needs to use the handrail to get up and down the s ta irs to the apartment. Id. He does not drive and has not driven for "some years," because his f e e t would go numb on the pedals. (R. 42-43). Mr. McKinnie testified that in his daily life he d o e s not help with any household chores, other than trying to wash a few dishes to keep his w ris t activated as part of his therapy. (R. 43). He also testified that he tries to use the vacuum b e c a u s e it is good exercise to move back and forth and it helps his balance. Id. Mr. McKinnie s a id he uses public transportation "[s]ometimes, but not too much." (R. 44). Mr. McKinnie stated that he spends his days trying to keep moving so that he can avoid m u s c le spasms that force him to lie down, and so that he can ambulate without using his a s s is tiv e devices. Id. Mr. McKinnie testified that he was using an umbrella on the day of the h e a rin g instead of a cane because he "can't carry both," but that he has "a cane, crutches, w a lk e r, and a wheelchair." (R. 45-46). He testified that he uses his crutches when his feet get s o swollen that he can't put pressure on them, and his cane on a regular basis for balance. (R. 4 6 -4 7 ). On one occasion six months prior to the hearing, the swelling of his feet got so bad, Mr. M c K in n ie testified, that he fell and injured himself and had to be taken to the emergency room. (R. 48, 50, 53). Mr. McKinnie testified that every time he moves, his body "pop[s] like popcorn." ( R . 51). He testified that he wears back and ankle braces from time to time. (R. 52). Mr.

M c K in n ie takes medicine for muscle spasms, arthritis, gout, high blood pressure, high c h o le s te ro l, and pain. (R. 52-53). Mr. McKinnie testified that he was worse off at the time of the hearing than he was when h e attempted the asbestos removal class in 2003. (R. 57). He testified that by October of 2005 h e was having painful back spasms every day. (R. 59). Mr. McKinnie testified that he would h a v e good days and bad days. On bad days, he could not get up properly and he would have to sit in the bathtub and do his therapy for "two or three hours" before he could try to "start the
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day over again." (R. 59). He testified that he usually sits in a wheelchair or a recliner during the d a y to elevate his legs and "keep off the pressure so the fluid could run back down." (R. 49, 606 1 , 64). W h e n asked how far off the ground he needed to elevate each leg usually, the record re f le c t s that Mr. McKinnie "guess[ed] about 3" or more, maybe farther" so that he could "s tra ig h te n it out." (R. 61-62). The following exchange then occurred between Mr. McKinnie a n d his counsel: Q : ­ straight? A : Yeah. Q : So that would be more, I guess that's ­ A : If I can get it higher ­ Q : Is that to the length of this computer here? A : Yeah. (R . 62). C. V o c a tio n a l Expert Testimony S u s a n Adenberg, a vocational expert ("VE"), testified before the ALJ that Mr. McKinnie's p a s t work as a forklift driver was heavy, semi-skilled, and his work as a material handler was h e a v y, unskilled. (R. 66). The ALJ then presented the VE with three hypothetical vocational p ro f ile s . (R. 66-71). For the first hypothetical, the ALJ asked the VE to consider whether an individual with th e same age, educational background, and work experience as Mr. McKinnie would have the f u n c tio n a l capacity to lift and carry ten pounds frequently and 20 pounds occasionally, to sit for 6 hours and stand and walk for 6 hours in an 8 hour day, and push and pull a commensurate a m o u n t of weight, with occasional stairs, ramps, stooping, and crouching, but no ladders. (R. 6 6 ). The VE testified that this individual could not perform Mr. McKinnie's past work because of th e level of exertion that would be required, and that Mr. McKinnie does not have any
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transferable skills. Id. W h e n asked whether this hypothetical individual could perform any jobs i n the regional economy, the VE testified that what the ALJ had described was "basically light u n s k ille d work," such that the individual could do light housekeeping, cashier, and packer work, a n d there were over 100,000 such positions combined in the Chicago metropolitan area. (R. 6 7 ). F o r the second hypothetical, the ALJ maintained the same strictures as the first h yp o th e tic a l except that the functional capacity would involve sitting for 4 hours and standing a n d walking for 4 hours. Id. The VE responded that there would still be about 8,000 cashier jo b s for this individual and 4,000 each of packer and assembler jobs. Id. At this point, the ALJ a s k e d the VE if her opinion was consistent with the DOT, and she responded "[y]es, I believe s o ." Id. For the third and final hypothetical, the ALJ asked the VE to consider an individual that c o u ld lift no more than 10 pounds and alternate sitting and standing through the day, sitting 30 m in u te s and standing 30 minutes. Id. The individual's legs could be elevated on a footstool w h e n seated. Id. Occasional pushing and pulling would be required, as would occasional

s ta irs , ramps, stooping, crouching, crawling, kneeling, and balancing. (R. 67-68.) No use of la d d e rs would be required and the individual would be able to avoid concentrated exposure to h a z a rd o u s machinery and unprotected heights. (R. 68). Before answering, the VE sought

c la rif ic a tio n on what the ALJ considered to be the height of a footstool. Id. The ALJ responded th a t it would be "a 15 percent grade off the horizontal," because she mistakenly thought that Dr. B e rn ie Thomas had called for an elevation of that height in his RFC analysis of Mr. McKinnie. Id . In actuality, Dr. Thomas had called for leg elevation to a height of four feet for 15 percent of th e time Mr. McKinnie would be required to sit. (R. 245). Once the VE corrected the ALJ's m is u n d e rs ta n d in g , the ALJ asked the VE to answer the hypothetical the way it had been given to her. (R. 69). The VE responded that if the only elevation required was "just a few inches off
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the ground . . . that would not affect sedentary sit stand option jobs." Id. The VE testified that th e re would be about 3,000 assembler positions available with such specifications, as well as 3 ,0 0 0 to 4,000 packer positions and about 1,000 inspection positions. Id. The VE concluded: "[i]f the elevation was of a more significant amount of, parallel or even higher, you know, of the h e ig h t, then there would not be any jobs." Id. Upon questioning of the VE by Mr. McKinnie's counsel regarding how much leg e le v a tio n would be too much elevation to interfere with sedentary work, the ALJ interjected that "a b o u t a foot and a half, is about the size of a footstool." (R. 70). The VE responded "[a]nd th a t's just about parallel, your, your leg is pretty much parallel at that point, I believe." Id. After f u rth e r discussion the ALJ stated that the footstool she was talking about was actually one foot ta ll. Id. The VE's response to the ALJ's adjustment was the following: You know, I think what I'm trying to say, I have a hard time with, with doing that, b u t if you're just slightly elevating your leg . . . that's not a problem. But if your leg h a s to be parallel or higher, then you can't perform a job where you're sitting at a b e n c h and doing work activity. I think that's the only way I can explain it. (R . 70-71). The VE also testified that an individual who had to miss three days of work per month c o u ld not sustain any of the jobs listed in the three hypotheticals posed by the ALJ, because th a t would exceed the tolerated absentee rate. (R. 71). Upon questioning by the ALJ on the a m o u n t of absence from work that would be tolerated, the VE responded that "[o]ne day a m o n th , 12 sick days a year is the norm." (R. 72). D. T h e ALJ's Decision T h e ALJ found that Mr. McKinnie met the insured status requirements of the Act through M a rc h 31, 2006, and that he had not engaged in substantial gainful activity since the alleged o n s e t date of his disability, which was April 15, 2001. (R. 20). The ALJ also determined that M r. McKinnie "has the following severe impairments: obesity; hypertension; mild diffuse

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degenerative changes to right ankle, left knee and right wrist; moderate diffuse degenerative c h a n g e s of lumosacral [sic] spine with moderate narrowing of L3-4 and L4-5 vertebral joint s p a c e s ; and gout first noted on May 14, 2007." Id. The ALJ found that Mr. McKinnie did not, h o w e v e r, have an impairment or combination of impairments that met or equaled those listed in th e Social Security Regulations. (R. 24). The ALJ then set forth a bifurcated RFC. (R. 24). From April 15, 2001 to January 31, 2 0 0 8 , the ALJ determined that Mr. McKinnie could lift/carry 20 pounds occasionally and 10 p o u n d s frequently; he could sit 6 hours and stand/walk 6 hours in an 8-hour workday; he had u n lim ite d pushing/pulling, and he could occasionally climb stairs/ramps, stoop and crouch, but n o t climb ladders. Id. From February 1, 2008 to the present, the ALJ found that Mr. McKinnie h a s the more limited RFC to lift/carry less than 10 pounds frequently and 10 pounds o c c a s io n a lly; he can sit 30 minutes and stand/walk 30 minutes throughout the day; he can o c c a s io n a lly push/pull with upper and lower extremities; he can occasionally use stairs, ramps, s to o p , crouch, crawl, kneel and balance, but not climb ladders; he should avoid concentrated e x p o s u re to hazardous machinery and unprotected heights; he can use a footstool when s e a te d ; and he would be absent from work one day per month. Id. In so ruling on Mr McKinnie's RFC, the ALJ dismissed Dr. Thomas' diagnosis of CKD: D r. Thomas gives a diagnosis of "CKD" which is not defined nor reduced to f u n c tio n a l limitations. The claimant's attorney believes it means "chronic kidney d is e a s e ." Even if this is so, which is not established by the record, there is no e v id e n c e of functional limitations from such a condition in the treatment notes or th e opinion of Dr. Thomas. (R . 26). The ALJ additionally gave only some weight, rather than controlling weight, to the RFC o f Dr. Thomas. Id. She stated that Dr. Thomas' "conclusions limiting claimant to less than 4 h o u rs of work daily, expecting absences more than 4 times a month, requiring the use of a w a l k e r, and elevating the leg 4 feet, are not supported by any objective evidence." (R. 26-27). W ith regard to Dr. Thomas' RFC regarding the four foot leg elevation level in particular, the ALJ
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gave "this assessment little weight," as she could "see no evidentiary basis for using more than a footstool." (R. 27). The ALJ determined, on the basis of the VE's testimony, that Mr. McKinnie is unable to p e rf o rm any past relevant work. (R. 28). She felt, however, that the VE's testimony supported a f in d in g that Mr. McKinnie could perform light work from April 15, 2001 to January 31, 2008, and th a t he could perform sedentary work from February 1, 2008 to the present. (R. 28-29).

Therefore, the ALJ held that Mr. McKinnie has not been disabled under the Act from April 15, 2 0 0 1 through the date of her decision, precluding any award of benefits. (R. 29). D IS C U S S IO N A. S ta n d a r d of Review J u d ic ia l review of the Commissioner's final decision is authorized by § 405(g) of the Act. S e e 42 U.S.C. § 405(g). The court's review is limited to determining whether substantial

e v id e n c e in the record supports the Commissioner's decision and whether the ALJ applied the c o r r e c t legal standards in reaching her decision. Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2 0 0 9 ). Substantial evidence is "such relevant evidence as a reasonable mind might accept as a d e q u a t e to support a conclusion." Id. (quoting Richardson v. Perales, 402 U.S. 389, 401

(1 9 7 1 )) . The court must critically review the ALJ's decision to ensure that the ALJ has built an "a c c u ra te and logical bridge from the evidence to [her] conclusion." Young v. Barnhart, 362 F.3d 9 9 5 , 1002 (7th Cir. 2004). W h e re the Commissioner's decision "lacks evidentiary support or is s o poorly articulated as to prevent meaningful review, the case must be remanded." Steele v. B a rn h a rt, 290 F.3d 936, 940 (7th Cir. 2002). B. F iv e -S te p Inquiry T o recover SSI and DIB under Titles II and XVI of the Act, a claimant must establish that h e has a "disability" within the meaning of the Act. 42 U.S.C. § 1382(c)(3)(A); Briscoe ex. rel. T a ylo r v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). An individual is disabled if he is unable to
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perform "any substantial gainful activity by reason of any medically determinable physical or m e n t a l impairment which can be expected to result in death or which has lasted or can be e x p e c te d to last for a continuous period of not less than 12 months." 20 C.F.R. § 416.905. To d e te rm in e whether a claimant is disabled under the Act, the ALJ conducts a standard five-step in q u iry: (1) Is the claimant presently unemployed? (2) Is the claimant's impairment severe? (3) D o e s the impairment meet or equal one of the specific impairments enumerated in the re g u la tio n s ? (4) Is the claimant unable to perform his former occupation? and (5) Is the claimant u n a b le to perform any other work? See 20 C.F.R. § 416.920; Clifford v. Apfel, 227 F.3d 863, 8 6 8 (7th Cir.2000). If the claimant makes it past step four, the burden shifts to the ALJ to

d e m o n s tra te that claimant can perform a significant number of jobs that exist in the economy. See Young, 362 F.3d at 1000. C. A n a ly s is M r. McKinnie raises five arguments in support of his request for reversal and remand: (1) th e ALJ's discussion of Mr. McKinnie's combination of impairments was inadequate; (2) the ALJ "p la ye d doctor" and made independent medical findings not supported by the record; (3) the A L J improperly rejected evidence of Chronic Kidney Disease, and erred by failing to re-contact M r. McKinnie's treating physician; (4) the ALJ's questioning of the VE did not satisfy the re q u ire m e n ts of SSR 00-4p; and (5) the ALJ did not properly analyze Mr. McKinnie's im p a irm e n ts under Listing 1.03. Each of these arguments is addressed below. 1. E v id e n c e of Chronic Kidney Disease

M r. McKinnie argues that the ALJ improperly rejected evidence in the record of a d ia g n o s is of "CKD" by his treating physician, Dr. Bernie Thomas, and that she should have re c o n ta c t e d Dr. Thomas to clarify his diagnosis if the record reflected uncertainty. As noted a b o v e , the ALJ stated in her decision that "[t]he claimant's attorney believes [CKD] means `c h ro n ic kidney disease.' Even if this is so, which is not established by the record, there is no
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evidence of functional limitations from such a condition in the treatment notes or the opinion of D r. Thomas." (R. 26). Mr. McKinnie argues that the ALJ's lack of consideration of the CKD d ia g n o s is was harmful because Mr. McKinnie has multiple symptoms of Chronic Kidney D is e a s e that relate to his impairments, rendering the ALJ's decision inadequate. In response, the Commissioner argues that the ALJ's lack of consideration of the CKD d i a g n o s is is irrelevant because the ALJ "found at least one severe impairment, and moved on to c o n s i d e r Mr. McKinnie's symptoms and limitations as a whole." (Doc. # 22 at 6). The

C o m m is s io n e r's argument is unavailing because Mr. McKinnie is not challenging the ALJ's f a ilu re to account for his CKD at step two. See Golembiewski v. Barnhart, 322 F.3d 912, 918 (7 th Cir.2003) (stating "[h]aving found that one or more of [appellant's] impairments was severe, th e ALJ needed to consider the aggregate effect of the entire constellation of ailments."); M o rg a n v. Astrue, 2009 W L 650364, *8 (N.D. Ill. Mar. 9, 2009) (stating "[t]he minimal articulation s ta n d a rd does not require the ALJ to cite and discuss every piece of evidence in detail at this th re s h o ld step, when the ALJ's finding was in plaintiff's favor. . . . `[A]s long as the ALJ proceeds b e yo n d step two, no error can result from that analysis'"). Rather, the Court views Mr.

M c K i n n i e ' s argument as an attack on the ALJ's RFC finding. The ALJ has the duty to fully c o n s id e r all the evidence of Mr. McKinnie's restrictions in the record in determining his RFC. See SSR 96-8p ("The adjudicator must consider all allegations of physical and mental lim ita tio n s or restrictions and make every reasonable effort to ensure that the file contains s u f f ic ie n t evidence to assess RFC."). A s Mr. McKinnie points out, his high blood pressure and complaints of swollen feet (R. 4 6 , 48, 53), muscles spasms (R. 40, 44, 59), back pain (R. 59), and headaches (R. 60) are c o n s is te n t with a diagnosis of chronic kidney disease. See MayoClinic.com, Chronic

h t t p : // w w w . m a yo c lin ic . c o m / h e a lt h / k id n e y- f a ilu r e /D S 0 0 6 8 2 / D S E C T I O N = s ym p to m s .

k id n e y disease is also associated with gout, which Mr. McKinnie suffers from. The applicable
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regulation requires the ALJ to recontact a treating physician when the physician's report c o n ta in s a conflict or ambiguity that must be resolved, does not contain all the necessary in f o rm a tio n , or does not appear to be based on medically acceptable clinical and laboratory te c h n iq u e s . 20 C.F.R. § 404.1512(e); see also SSR 96-5p (stating if "the adjudicator cannot a s c e rta in the basis of the [treating source's] opinion from the case record, the adjudicator must m a k e `every reasonable effort' to recontact the source for clarification of the reasons for the o p in io n .") . The ALJ had a duty to recontact Dr. Thomas to seek clarification if she had a

q u e s tio n about the validity of a chronic kidney disease diagnosis. T h e ALJ's finding that "there is no evidence of functional limitations from such a c o n d itio n in the treatment notes or the opinion of Dr. Thomas" is inaccurate because it does not a c c o u n t for Dr. Thomas' RFC evaluation. On February 14, 2008, Dr. Thomas completed an R F C Questionnaire and noted diagnoses of CKD, gout, and hypertension. (R. 244). Dr.

T h o m a s ' RFC assessment then identified the functional limitations arising from these im p a irm e n ts . (R. 245-46). The ALJ's summary dismissal of the CKD diagnosis and resulting f u n c tio n a l limitations and her failure to recontact Dr. Thomas for clarification indicate that her R F C analysis is not supported by substantial evidence. The ALJ's error was not harmless. Confirming a diagnosis of chronic kidney disease could lead to a different credibility and RFC f in d in g . In assessing Mr. McKinnie's credibility and determining his RFC, the ALJ dismissed m a n y of Mr. McKinnie's self-described pain limitations as well as certain of Dr. Thomas' o p i n i o n s because they were not supported by objective evidence. (R. 25, 27). On remand, the A L J shall seek additional evidence from Dr. Thomas regarding Mr. McKinnie's CKD and his re s u ltin g functional limitations and restrictions. 2. T h e ALJ's Discussion of Plaintiff's Combination of Impairments

M r . McKinnie argues that the ALJ's discussion of his combination of impairments was in a d e q u a te . In particular, Mr. McKinnie asserts that an improper RFC finding resulted from the
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ALJ's failure to address the effect of his obesity on his other impairments, including arthritis, d e g e n e ra tiv e changes to the knee and ankle, degenerative changes to the spine, narrowing of th e vertebrae, hypertension, and gout. W h e n a claimant alleges a variety of impairments, the ALJ must consider "the

aggregate

effects of the entire constellation of impairments." Golembiewski v. Barnhart, 322 F.3d 912,
9 1 8 (7th Cir. 2003) (emphasis in original). Obesity should be considered, singly and in assessment stage of the disability

c o m b in a tio n with other impairments, at the RFC

d e te rm in a tio n process. See SSR 02-1p at *6 (also noting that "[t]he combined effects of obesity w ith other impairments may be greater than might be expected without obesity."). The Seventh C irc u it has affirmed that the effect of obesity on a claimant's other impairments must be e x a m i n e d in order for an RFC assessment to be sufficiently comprehensive. See Gentle v.

B a rn h a rt, 430 F.3d 865, 868 (7th Cir. 2005) ("Sometimes . . . obesity . . . merely aggravates a d is a b ility caused by something else; it still must be considered for its incremental effect on the d i s a b i l i t y" ) . A lth o u g h the ALJ explicitly considered whether Mr. McKinnie met the prior listing for o b e s ity (9.09), and "noted Mr. McKinnie's weight no fewer than a dozen times throughout her d e c is io n " as the Commissioner contends (Doc. # 22 at 4), the ALJ did not discuss how Mr. M c K in n ie 's obesity interacted with his other impairments in her RFC assessment. The ALJ's m u ltip le references to Mr. McKinnie's weight (R. 21-22, 24) are not coupled with any analysis of h o w his weight operates in conjunction with his other impairments. Because the ALJ failed to p ro v id e an adequate analysis of Mr. McKinnie's combination of impairments, her RFC d e te rm in a tio n is not supported by substantial evidence. See Barrett v. Barnhart, 355 F.3d 1065, 1 0 6 8 (7th Cir. 2004) (finding error in the ALJ's failure to discuss the impact of claimant's obesity o n her other impairments). On remand the ALJ shall consider the aggregate effect of Mr.

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McKinnie's impairments, discussing the manner in which his obesity impacts his other d ia g n o s e s . 3. T h e ALJ's Independent Medical Findings

M r. McKinnie argues that the ALJ "played doctor" and made independent medical f in d in g s that are not supported by the record when she held that he could perform sedentary w o r k because he could elevate his legs on a footstool when seated and might be absent from w o rk only once a month. (Doc. # 17 at 9). An ALJ may not substitute her own opinions

re g a rd in g medical conditions for those of medical professionals. See, e.g., Myers v. Astrue, No. 2 0 0 9 W L 2746245 at *7 (N.D. Ill. Aug. 26, 2009) (stating "[i]t is well established that `[a]n ALJ m a y not substitute his own judgment for a physician's opinion without relying on other medical e v id e n c e or authority in the record.'") (citation omitted); Blakes ex rel W o lfe v. Barnhart, 331 F .3 d 565, 570 (7th Cir. 2003) (finding that the ALJ improperly made a medical conclusion that w a s not supported by the evidence in the absence of medical testimony at the hearing). M r. McKinnie's treating physician, Dr. Thomas, found that Mr. McKinnie would have to e le v a te his legs to a height of four feet for fifteen percent of a workday to prevent stiffness, and th a t his impairments would cause him to be absent from work for four days per month on a v e ra g e . (R. 245-46). The vocational expert testified at the hearing that there would be no s e d e n ta ry jobs for an individual who needed to elevate his legs to a parallel level (eighteen in c h e s ) or higher during the workday, nor would there be jobs for an individual whose im p a irm e n ts caused him to be absent from work three times per month. (R. 70-71). W h e n the A L J told the VE to include a requirement of elevating legs on a twelve inch footstool when s e a te d , the VE testified that she would "have a hard time with, with doing that, but if you're just s lig h tly elevating your leg . . . that's not a problem. But if your leg has to be parallel or higher, th e n you can't perform a job while you're sitting at a bench and doing work activity. Id. The ALJ d e c lin e d to find that Mr. McKinnie was required to elevate his legs at the four feet level because
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she found no objective support for that requirement in the record. (R. 27). The record does not support the ALJ's RFC finding regarding how high Mr. McKinnie n e e d s to elevate his legs. The ALJ must build "an accurate and logical bridge from the

e v id e n c e to his conclusion." Blakes v. Barnhart, 331 F.3d 565, 569 (7 th Cir. 2003). The ALJ f o u n d that Mr. McKinnie needs to elevate his legs twelve inches (as on a footstool). (R. 27, 70) (s ta tin g "Okay, the footstool, the footstool I was talking about before was 1', 12'', the first f o o ts to o l."). There is nothing in the record, either in the form of medical evidence or testimony, w h ic h specifically indicates that Mr. McKinnie needed to elevate his legs at a height of twelve in c h e s . The only explanation given for the ALJ's conclusion is her statement that she "accept[s] D r. Thomas' finding that the claimant needs to elevate his legs when seated, but see[s] no e v id e n tia ry basis for using more than a footstool." (R. 27). The ALJ gave Dr. Thomas'

a s s e s s m e n t of the required leg elevation "little weight," however, finding that he was "without a n y explanation for such high elevation." (R. 27). The ALJ did not cite or discuss any evidence c o n t ra d ic tin g Dr. Thomas' assessment. The ALJ impermissibly made her own conclusion

re g a rd in g the height Mr. McKinnie needs to elevate his legs. Blakes, 331 F.3d at 570 (holding a n ALJ improperly "play[s] doctor" when she makes a medical conclusion without expert e v id e n c e ). T h e Commissioner argues that the ALJ did not "play doctor" because "she simply relied o n Mr. McKinnie's own statements in determining more reasonable footstool elevation and oned a y-p e r-m o n th absence restrictions." (Doc. # 22 at 5). The record does show that at one point d u rin g his testimony, Mr. McKinnie stated that he only needed to elevate each leg about three in c h e s "or more, maybe farther" so that he could "straighten it out." (R. 61-62). Mr. McKinnie's te s tim o n y as a whole is unclear as to the height at which he needed to elevate his legs. McKinnie testified that he sits in a recliner or wheelchair to elevate his legs and "keep off the p re s s u re so the fluid could run back down," which may be interpreted to mean that he needs to
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elevate his legs at waist level height. (R. 49, 60-61, 64). In any event, the Commissioner may n o t supply the ALJ's reasoning for her, however, and here the ALJ did not reference Mr. M c K in n ie 's testimony in independently deciding the level to which his legs should be elevated. S e e Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002) (stating "regardless of whether there is enough evidence in the record to support the ALJ's decision, principles of administrative law re q u ire the ALJ to rationally articulate the grounds for her decision and confine our review to the re a s o n s supplied by the ALJ."). M r. McKinnie also challenges the ALJ's finding that he would be absent from work one d a y per month due to his impairments. The ALJ failed to cite any evidence in the record to s u p p o rt her conclusion. Arguably, the ALJ was obliquely referencing Mr. McKinnie's testimony w h e n she stated that "giving claimant the benefit of the doubt concerning his symptoms, he m ig h t be absent from work once a month." (R. 27). Still, this determination of one likely

a b s e n c e per month is arbitrary, as is the determination that Mr. McKinnie's legs need only be e le v a te d to the height of a footstool. The ALJ simply did not explain how she arrived at these c a lc u la tio n s , contrary to the requirements of SSR 96-8p, which provides that an "RFC a s s e s s m e n t must include a narrative discussion describing how the evidence supports each c o n c lu s io n , citing specific medical facts (e.g. laboratory findings) and nonmedical evidence (e .g ., daily activities, observations)." See Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7 th Cir. 2005) ("[c]ontrary to SSR 96-8p, however, the ALJ did not explain how he arrived at th e s e conclusions; this omission in itself is sufficient to warrant reversal of the ALJ's decision."). The Commissioner cites two cases, Schmidt v. Astrue, 496 F.3d 833 (7th Cir. 2007), and D ia z v. Chater, 55 F.3d 300 (7th Cir. 1995), for the proposition that it is irrelevant that the ALJ's "lim ita tio n s were not necessarily derived from a specific medical opinion." (Doc. # 22 at 5). T h e s e two cases are inapposite, however, because they discuss the ALJ's duty to resolve c o n flic tin g medical evidence. In this case, the issue is not that the ALJ wrongfully chose one
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medical opinion over another, but rather that the ALJ did not meet the "logical bridge" re q u ire m e n t for the opinions she came up with. As such, the ALJ's RFC assessment was not s u p p o rte d by substantial evidence, and it must be re-evaluated on remand. 4. T h e ALJ's Questioning of the VE

M r. McKinnie argues that the ALJ erred in her questioning of the VE because she did not a s k whether the VE's testimony was consistent with the Dictionary of Occupational Titles (DOT) a f te r the VE had finished testifying. Instead, the ALJ asked the VE if her testimony was

c o n s is te n t with the DOT after the second hypothetical out of three posed by the ALJ. (R. 67.) Mr. McKinnie asserts that this timing is harmful because he claims that the VE's ensuing te s tim o n y was inconsistent with the DOT, and therefore the ALJ was wrong to rely on it. T h e ALJ has an affirmative duty to ask the VE whether her testimony is consistent with th e DOT. SSR 00-4p; Prochaska v. Barnhart, 454 F.3d 731, 735-36 (7th Cir. 2006). The plain la n g u a g e of SSR 00-4p suggests that the ALJ should ask the VE whether her testimony is c o n s is te n t with the DOT after the VE has finished testifying: the ALJ should ask the VE "if the e v id e n c e he or she has provided conflicts with information provided in the DOT" (emphasis a d d e d ). Indeed, the Northern District of Indiana has held that "SSR 00-4p places an affirmative d u ty on the ALJ to resolve conflicts between the evidence the VE has provided and the D ic tio n a ry of Occupational Titles after the VE has testified," and that "[t]he ALJ cannot transfer h is duty to the VE." Kallio v. Astrue, 2009 W L 500552 *9 (N.D.Ind., February 27, 2009). M r. McKinnie is correct that the ALJ did not expressly ask the VE if her testimony in re s p o n s e to the third hypothetical conflicted with the DOT. The Commissioner notes, however, t h a t the Seventh Circuit has applied harmless error analysis to an ALJ's failure to inquire about p o s s ib le conflicts between the VE's testimony and the DOT. See Ketelboeter v. Astrue, 550 F .3 d 620, 625-26 (7th Cir. 2008) (finding the ALJ's failure to ask the VE if his testimony c o n flic te d with the DOT harmless because the DOT's job descriptions were not inconsistent with
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the hypothetical limitations given by the ALJ).

Mr. McKinnie argues that the ALJ's failure to

q u e s tio n the VE regarding any inconsistencies with the DOT after her testimony was finished is h a rm f u l, though, because "[t]he jobs the ALJ found for Plaintiff were sedentary jobs, but the ALJ d id not ask the VE to clarify whether a person could perform jobs primarily requiring sitting when h e had to alternate sitting and standing every 30 minutes," as the ALJ's RFC provides. (Doc. # 2 3 at 10); 20 C.F.R. § 404.1567(a) (defining "a sedentary job . . . as one which involves sitting," a lth o u g h "[j]obs are sedentary if walking and standing are required occasionally and other s e d e n ta ry criteria are met."). T h e re is some question here whether the jobs identified by the VE in response to the th ird hypothetical require abilities outside the ALJ's assessed RFC, which would constitute a c o n flic t between the VE's testimony and the DOT. The ALJ's third hypothetical required, among o th e r limitations, alternate sitting and standing every 30 minutes. (R. 67-68). The VE listed the a s s e m b le r, packer, and inspector positions as jobs that the representative person could perform a n d classified them as "sedentary sit stand option jobs." (R. 69). Contrary to the

C o m m is s io n e r's argument, the ALJ limited Mr. McKinnie to performing sedentary work as of F e b ru a ry 2008. (R. 27) (stating as of February 2008, "I now conclude that he is capable of s e d e n ta ry exertion with additional limitations stated in his RFC."); see also (R. 29) (stating "[a ]c c o rd in g to the vocational expert, claimant's RFC from February 1, 2008 to present is s e d e n ta ry in exertional level."). At step five, the ALJ found Mr. McKinnie was not disabled as of F e b ru a ry 2008 because he could perform the 3,000 assembler, 3,000 to 4,000 packer, and 1 ,0 0 0 inspector positions identified by the VE at the hearing. The VE's response to the hypothetical was inconsistent with Mr. McKinnie's limitations a n d did not match the DOT's classification of those jobs as sedentary. A job is sedentary if w a lk in g and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 404.1567(a); SSR 83-10 at *5. "`Occasionally' means occurring from very little up to one-third
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of the time.

Since being on one's feet is required `occasionally' at the sedentary level of

e x e rtio n , periods of standing or walking should generally total no more than about 2 hours of an 8 -h o u r workday, and sitting should generally total approximately 6 hours of an 8-hour workday." SSR 83-10 at *5. The limitation of alternative sitting and standing every 30 minutes is

in c o n s is te n t with standing not more than 2 hours out of an 8-hour workday, and thus, exceeds M r. McKinnie's limitations. Because the identified sedentary jobs of assembler, packager, and in s p e c t o r appear to exceed Mr. McKinnie's assessed limitations, an apparent conflict exists b e tw e e n the VE's testimony and the DOT's definition. On remand, the ALJ must explore this p o te n tia l inconsistency and obtain a reasonable explanation for this apparent conflict. See

P ro c h a s k a , 454 F.3d at 736 (remanding because "[the court] will defer to an ALJ's decision if it is supported by `substantial evidence,' but here there is an unresolved potential inconsistency in th e evidence that should have been resolved."). 5. T h e ALJ's Analysis of Plaintiff's Impairments Under Listing 1.03

M r . McKinnie's final remaining argument is that the ALJ did not properly analyze his im p a irm e n ts under Listing 1.03. A claimant is presumptively disabled if his impairments meet th e criteria for an impairment found in the Listing of Impairments. See 20 C.F.R. Pt. 404, Subt. P , App. 1; Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004) (citing 20 C.F.R. §§ 4 0 4 .1 5 2 0 (d ), 404.1525(a)). Mr. McKinnie claims that he qualifies under Listing 1.03, which

e n ta ils reconstructive surgery of a weight-bearing joint with inability to ambulate effectively as d e f in e d in Listing 1.00B2b. 20 C.F.R. Pt. 404, Subt. P, App. 1. L is tin g 1.02B2b(2) provides the following examples of ineffective ambulation: th e inability to walk without the use of a walker, two crutches or two canes, the in a b ility to walk a block at a reasonable pace on rough or uneven surfaces, the in a b i l ity to use standard public transportation, the inability to carry out routine a m b u la to ry activities, such as shopping and banking, and the inability to climb a f e w steps at a reasonable pace with the use of a single hand rail. Id . Mr. McKinnie takes issue with the fact that the ALJ only stated that "there is no evidence
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demonstrating an inability to ambulate effectively as outlined under 1.00B2b, as the claimant did n o t require a walker or two crutches to ambulate." (R. 24). Citing Moss v. Astrue, 555 F.3d 556 ( 7 t h Cir. 2009), Mr. McKinnie asserts that "the ALJ must consider the remainder of the examples lis te d in the rule." See Moss, 555 F.3d at 562-63 (stating "the ALJ failed to adequately consider w h e th e r [the claimant met] the listing based on the provided examples such as an inability to w a lk a block at a reasonable pace on rough or uneven surfaces, or the inability to carry out ro u tin e activities, like shopping and banking"). (Doc. # 17 at 14). T h e present case is distinguishable from Moss. In Moss, the court held that the ALJ n e c e s s a rily failed to adequately consider the ineffective ambulation listing because the ALJ's d e te rm in a tio n regarding the medical evidence was not supported by substantial evidence. Specifically, the ALJ in Moss erred in discounting the opinions of the treating orthopedic s p e c i a l is t who noted that claimant's right ankle had some early degenerative changes and f e a tu re s that suggested death of the bone tissue; that claimant's range of motion was quite lim ite d ; claimant experienced pain when she flexed her ankle; claimant had stiffness, te n d e rn e s s , and diminished sensation in her right foot; claimant walked with a steppage gait p a t t e r n ; and claimant used a cane. Moss, 555 F.3d at 558. Here, the ALJ thoroughly

a d d re s s e d the various indications of Mr. McKinnie's ability to ambulate effectively. (R. 21-23). In addition to the indications that reflected negatively on Mr. McKinnie's ability to ambulate, the A L J noted many positive indications of that ability, including only mild diffuse degenerative c h a n g e s to the right and left ankles; Mr. McKinnie's full range of motion of his left ankle; his a b ility to toe and heel stand; 5/5 strength over his lower bilateral extremities; Dr. Thomas' a s s e s s m e n t that he can walk three blocks; Dr. Palacci's observation that Mr. McKinnie did not u s e a cane, had 5/5 strength over all extremities, and his gait was non-antalgic; that he s o m e tim e s takes public transportation; and Mr. McKinnie's testimony that he lives on a 2 nd floor a p a rtm e n t where he is able to climb the stairs with the handrail.
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Id.

Based on the ALJ's

adequate consideration of Mr. McKinnie's ability to ambulate in her decision, her conclusion that h is impairments did not meet the criteria of Listing 1.03 was supported by substantial evidence. C O N C L U S IO N F o r the reasons stated above, the decision of the ALJ is reversed and this case is r e m a n d e d to the Administration for further proceedings consistent with this opinion. Plaintiff's M o tio n for Summary Judgment [Doc. # 17] is granted. E N T E R:

Nan R. Nolan U n ite d States Magistrate Judge D a te d : March 26, 2010

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