Anderson v. Astrue

Filing 29

MEMORANDUM Opinion and Order Signed by the Honorable Sheila Finnegan on 6/13/2011: Mailed notice. (is, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LISA ANDERSON,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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No. 09 C 2399
Magistrate Judge Sheila Finnegan

MEMORANDUM OPINION AND ORDER
Plaintiff Lisa Anderson brings this action under 42 U.S.C. § 405(g), seeking to
overturn the final decision of the Commissioner of Social Security (“Commissioner”)
denying her application for disability insurance benefits under Title II of the Social Security
Act. The parties consented to the jurisdiction of the United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c), and Plaintiff filed a motion for summary judgment seeking
reversal of the ALJ’s decision. On April 26, 2010, the case was reassigned to this Court
for all further proceedings. After careful review of the parties’ briefs and the record, the
Court now grants Plaintiff’s motion and remands the matter for further proceedings
consistent with this ruling.
PROCEDURAL HISTORY
Plaintiff applied for disability insurance benefits on August 9, 2006, alleging that she
became disabled on August 25, 1996 from a variety of impairments, including a brain
tumor, fibromyalgia, depression, detached retinas, cataracts, headaches and a dislocated
knee cap. (R. 112, 123). The Social Security Administration denied the application initially

on November 2, 2006, and again on reconsideration on February 22, 2007. (R. 54, 55, 6771, 76-79). Pursuant to Plaintiff’s timely request, Administrative Law Judge (“ALJ”) Joel G.
Fina held an administrative hearing on January 8, 2008. The ALJ heard testimony from
Plaintiff, who appeared with counsel, Plaintiff’s husband, and a vocational expert.
Approximately two weeks later, on January 23, 2008, the ALJ found that Plaintiff is not
disabled because she is capable of performing a significant number of jobs available in the
national economy. (R. 59-66). The Appeals Council denied Plaintiff’s request for review
on February 26, 2009, and Plaintiff now seeks judicial review of the ALJ’s decision, which
stands as the final decision of the Commissioner. (R. 1-3).
Plaintiff advances three grounds for reversal, all of which concern the ALJ’s analysis
at Step 5 where he decided that Plaintiff could make an adjustment to other jobs that
existed in the economy, given her vocational factors of residual functional capacity (“RFC”),
age, education, and work experience. See 20 C.F.R. § 404.1520(g)(1). Plaintiff first
argues that the ALJ erred by applying the age categories of the regulations in a mechanical
manner to classify her as a “younger individual” rather than considering whether her
borderline age made it more appropriate to categorize her in the next higher age category,
resulting in a finding of disabled. Plaintiff next asserts that the ALJ erred in finding her
testimony concerning the severity of her headaches less than fully credible, and in omitting
discussion of certain evidence. Finally, Plaintiff contends that the ALJ failed to include any
limits in her RFC that her headaches might impose on her ability to sustain full-time work.

2

FACTUAL BACKGROUND
Plaintiff was born on March 24, 1952, and was 49 years old as of her date last
insured (“DLI”) of December 31, 2001. (R. 16, 112). She is a high school graduate, and
has additional certifications from her local school district. (R. 17). Her past relevant work
was as a teacher’s aide. (R. 124, 147).
A.

Plaintiff’s Medical History
1.

Brain Lesion

In 1995, Plaintiff was diagnosed with an “enhancing mass in the right cavernous
sinus and extending inferiorly into the skull base,” which caused her to suffer painful right
ophthalmoplegia,1 diplopia (double vision) and headaches. (R. 278). On August 25, 1995,
Dr. Gail L. Rosseau of the Chicago Institute of Neurosurgery and Neuroresearch performed
a right temporal craniotomy for biopsy of the cavernous sinus lesion. Following the surgery,
Plaintiff’s diplopia resolved, and steroids alleviated her headaches with continued use.
(Id.).
On September 13, 1996, an MRI revealed that “the right cavernous sinus was
possibly larger and that the adenoid tissues were significantly larger than on previous
studies, particularly on the right.”

(Id.).

Plaintiff had a nasopharyngeal biopsy on

December 3, 1996, and in January 1997, Dr. Rosseau recommended that she get second
opinions to “help in establishing an as-yet elusive diagnosis.” (R. 279). Dr. Rosseau
described Plaintiff as having “an eighteen month history of intractable headaches,” and

1

Ophthalmoplegia is “a paralysis or weakness of one or more of the muscles that
control eye movement.”
The Free Dictionary, http://medicaldictionary.thefreedictionary.com/ophthalmoplegia (last visited June 10, 2011).

3

offered to refer her to a headache specialist. (R. 278-79). Plaintiff declined to seek any
headache treatment at that time. (R. 279).
Plaintiff had regular follow-up exams with Dr. Rosseau in 1997 and 1998 to monitor
the lesion. MRI results from those years all showed little to no significant changes in the
size of the lesion. (R. 287-95). On June 23, 1998, Dr. Rosseau observed that Plaintiff’s
condition was stable, and that she was experiencing “no further headaches or visual
obscurations.” (R. 273). On December 15, 1998, Plaintiff told Dr. Rosseau that she had
“occasional stress-related headaches for which she is taking, at worst, up to six ibuprofen
a day and . . . up to three Tylenol #3 per day.” Plaintiff indicated that the headaches are
related to what she believed to be “an unusually large intake of coffee and chocolate, which
she is not able to reduce.” (R. 272).
2.

Headache Treatment

Several months later, Plaintiff decided to pursue Dr. Rosseau’s suggestion and seek
treatment for her headaches with Dr. Seymour Diamond of the Diamond Headache Clinic
(“DHC”). She completed some intake paperwork on May 6, 1999, and scheduled an
appointment for May 20, 1999. (R. 235-39). Over the next eight years, Plaintiff received
regular treatment from both Dr. Diamond and Dr. Rosseau.
When Plaintiff saw Dr. Rosseau on May 7, 1999, she reported “intermittent
headaches, which are unchanged in the last year.” (R. 271). She told Dr. Rosseau that
decreasing her coffee intake did not change the headaches, and that she continued to take
four to six ibuprofen tablets a day and up to three Tylenol #3 per day. (Id.). An MRI taken
at the same time showed no significant change in the size of the brain lesion. (R. 285-86).

4

On May 20, 1999, Dr. Diamond examined Plaintiff and started her on Vivactil and
Indocin. (R. 229). Four days later, Plaintiff told Dr. Diamond that she was “overall doing
well,” but that over the previous four days, she had had one headache at a pain level of 7
to 8 out of 10, and one headache at a level of 5 out of 10. (Id.). On June 3, 1999, Dr.
Diamond took Plaintiff off Indocin because of the side effects (muscle weakness, loss of
energy, drowsiness, stomachaches and heartburn), but kept her on Vivactil and added
Midrin. (R. 228). Shortly thereafter, on June 23, 1999, Dr. Diamond switched Plaintiff to
Vioxx, along with Tylenol #3 as a “rescue drug.” (Id.). By August 12, 1999, Plaintiff
reported she “feels great” on the Vioxx, but had experienced five severe headaches that
left her bedridden, and was still having one mild headache per week. (R. 227). The
following month, she called Dr. Diamond for medication refills, and reported having
headaches once a week. (Id.).
At her next appointment on November 16, 1999, Plaintiff told Dr. Diamond that she
was having one to two severe headaches and one to two mild headaches per week. (R.
226). For the previous two weeks, she had woken up in the middle of the night with a
headache. (Id.). Dr. Diamond increased her Vivactil and continued her on Vioxx and
Tylenol #3. (Id.). Plaintiff returned to Dr. Rosseau on November 23, 1999, and reported
that her headaches “are currently well tolerated on the medications prescribed by Dr.
Diamond,” including Vivactil and Vioxx. (R. 270). An MRI taken that day showed no
significant change in the size of the lesion, and Dr. Rosseau instructed Plaintiff to return in
six months. (R. 270, 284).
Three days later, on November 26, 1999, Plaintiff told Dr. Diamond that she was
experiencing an increase in headache frequency due to “family stress,” and she requested
5

more Tylenol #3. (R. 226). Dr. Diamond increased Plaintiff’s Vivactil at that time. (Id.).
On February 4, 2000, Plaintiff complained of headaches at a level of 5 out of 10, along with
nausea and vomiting. (R. 225). Tylenol #3 was not providing any relief, so Dr. Diamond
prescribed Vicodin. (Id.). Plaintiff saw Dr. Rosseau for an early follow-up exam on
February 18, 2000 due to recurrent headaches that month. (R. 269). An MRI taken that
day showed no significant change in the size of the lesion. (R. 269, 282). Dr. Rosseau
indicated that Dr. Diamond was treating Plaintiff with prednisone, and urged her to continue
in his care. (R. 269). Shortly thereafter, on February 29, 2000, Dr. Diamond noted that
Plaintiff was “doing better” since he switched her from a generic form of Vivactil back to the
brand name. (R. 224). Plaintiff complained of headaches that start around 3 p.m., for
which she takes Tylenol #3 and then goes to sleep. (Id.). She complained that the
headaches initially go away, but then return in the late evening along with double vision.
(Id.). Dr. Diamond prescribed Decadron to help with the pain. (Id.).
At an appointment with Dr. Diamond on July 27, 2000, Plaintiff was “doing well,” and
reported that Tylenol #3 relieved a headache she had the previous night. (R. 222). By
November 16, 2000, Plaintiff was experiencing no severe headaches, and three to four mild
to moderate headaches per week. (R. 221). On March 27, 2001, Dr. Rosseau observed
that her headaches were “much improved,” and she “has them perhaps 3 times a week and
they are well controlled with the medications prescribed by Dr. Diamond.” (R. 268). Dr.
Rosseau found Plaintiff to be stable, and noted that there was a decrease in size of the
right cavernous sinus lesion. (R. 268, 280-81).
In May 2001, Plaintiff told Dr. Diamond that she was having three to four moderate
to severe headaches per week, but was “able to abort” them with medications. (R. 220).
6

When Plaintiff saw Dr. Diamond on November 8, 2001 (approximately seven weeks before
her DLI of December 31, 2001), she reported having “the best summer,” without severe
headaches. (R. 219). On six or seven occasions, however, she experienced headaches
at a level of 7 out of 10, and in the fall she sometimes had headaches twice a week. (Id.).
She generally took Tylenol #3 and laid down to treat the pain. (Id.). Dr. Diamond noted
that when Plaintiff has a headache, she experiences nausea and sensitivity to light and
sound, and that strong smells can trigger her headaches. (Id.).
Plaintiff returned to Dr. Rosseau for a follow-up appointment on March 27, 2002,
and reported that was “very pleased with her current headache management by Dr.
Seymour Diamond,” and that her “headaches are well controlled with Vivactil, occasional
Vioxx, and ibuprofen and Tylenol #3 once to twice per week.” (R. 257). Dr. Rosseau
observed that Plaintiff’s most recent MRI dated March 12, 2002 showed that the lesion was
“the same size or slightly smaller when compared with the previous study of 3/20/2001.”
(Id.). She instructed Plaintiff to return in one year. (Id.).
On June 18, 2002, Plaintiff told Dr. Diamond that she was still having headaches two
to three times a week at a level of 5 to 7 out of 10. (R. 218). She said that she could stop
the headaches with Vioxx, ibuprofen, Tylenol #3 and rest. (R. 217-18). On November 5,
2002, Plaintiff reported she was experiencing an average of two migraines a week at a level
of 5 to 6 out of 10. (R. 217). Dr. Diamond continued her on Vivactil, Vioxx and Tylenol #3.
(Id.).
At her annual visit with Dr. Rosseau on May 6, 2003, Plaintiff reported doing well
until approximately April 20, 2003, when she developed “spontaneous diplopia” that “was
associated several days later with a sudden headache in the back of her head.” (R. 253).
7

Plaintiff did not have a headache at the time of the exam, but Dr. Rosseau noted that an
MRI taken that day showed an increase in the size of the lesion. (Id.). When Plaintiff
returned to Dr. Rosseau’s office on May 23, 2003, Dr. Kenneth Heiferman indicated that
her headaches were stable and she had no new complaints. (R. 251).
On August 7, 2003, Plaintiff told Dr. Diamond that she was experiencing three
severe headaches per week. (R. 213). Nine months later, on April 27, 2004, she still
reported having two to three severe headaches per week. (R. 211). On June 22, 2004,
however, the headaches were increasing in frequency and she was having difficulty getting
them under control. (R. 210). In July 2004, Plaintiff reported stress associated with her
father being in hospice and complained of a constant headache. (R. 209). The headaches
were also more frequent in September and November 2004. (R. 208-09).
On February 23, 2005, Dr. Diamond questioned, “HA [headaches] better overall?”
(R. 207). At a subsequent visit on September 27, 2005, Plaintiff’s headaches were better,
but she was still having them three to four times per week. (R. 205). Dr. Diamond’s final
note of April 10, 2006 indicates that Plaintiff was having about four to five headaches per
week, and was sensitive to light, sound and smells. (R. 204).
3.

Agency Reviewing Physicians

On November 1, 2006, Donald MacLean, Ph.D., completed a Psychiatric Review
Technique of Plaintiff for the Bureau of Disability Determination Services (“DDS”). (R. 31123).

Dr. MacLean found insufficient evidence of any mental impairment or related

functional limitations, and concluded, “[e]vidence is insufficient to establish a disability prior
to [Plaintiff’s] date last insured.” (R. 311, 321, 323). Also on November 1, 2006, Dr. Marion
Panepinto completed a Request for Medical Advice for DDS. (R. 308-310). Like Dr.
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MacLean, Dr. Panepinto concluded that “[t]he medical evidence in file appears insufficient
to indicate a finding of disabled can be made prior to DLI of 12/31/01.” (R. 310). On
February 20, 2007, Dr. Terry Travis affirmed Dr. Panepinto’s evaluation. (R. 325-27).
B.

Plaintiff’s Testimony
At the January 8, 2008 hearing before the ALJ, Plaintiff testified that she began to

experience headaches and double vision in 1996, leading to brain surgery in August of that
year. (R. 19). She was diagnosed with a tumor on her optical nerve that cannot be
removed. (R. 34). Prior to the surgery, Plaintiff worked as a teacher’s aide. (R. 17). She
resumed working from December 1996 to June 1997, but she had to make
accommodations for her condition by skipping lunch and going into a dark room. (R. 18,
41-42). Plaintiff’s contract was not renewed for the following school year, and she was
unsuccessful in finding other work. (R. 18-20). Plaintiff stated that had she not lost her job
with the school district, she “would have been determined to continue on” with that position.
(R. 28). The “constant on your feet all day,” however, would have been difficult for her, and
“[s]ooner or later [she] would’ve had to give[] up.” (Id.).
Plaintiff testified that from 1997 through December 31, 2001, she had severe
headaches five to six times per week, lasting three to four hours each. (R. 24, 25). The
pain would sometimes wake her up in the middle of the night four to five times per week,
and by 8 a.m. she would have to go back to bed. (R. 24, 32). On occasion, the headaches
were accompanied by nausea or vomiting, and could be triggered by light, sounds, odors,
or stress. (R. 31, 33-34, 42-43). In addition, Plaintiff suffered from unpredictable “vision
disturbances.” (R. 22). To treat these headache symptoms, Plaintiff took Tylenol #3 and
Vicodin, which made her “foggy,” confused, and dizzy. (R. 26, 33).
9

After being referred to the Diamond Headache Clinic, Plaintiff was treated for
depression as well as for her headaches. (R. 26-30). She was able to reduce her
dependence on pain medications, and the severity and frequency of her headaches
diminished. (R. 27, 29). She still generally had one headache a day, but she occasionally
had headache-free periods of several days. (R. 27). As a result of the headaches, Plaintiff
was no longer able to engage in fishing, shopping, canoeing, or gardening. (R. 34). She
was able to drive, however, as long as she did not have a headache. (R. 43-44).
C.

Husband’s Testimony
Plaintiff’s husband, Roland Anderson, testified that she worked a regular schedule

following her surgery in 1996 and up until her contract ended, but she had to “fight . . .
through the day” and was “just wiped out . . . when she would come home.” (R. 39). After
about 1999 or 2000, she no longer had the “pep” to engage in activities with him such as
fishing or gardening, and suffered from fatigue associated with the headaches. (R. 36, 3839). Mr. Anderson recalled Plaintiff waking with headaches “very frequent[ly].” (R. 37).
He also stated that her headaches improved “quite a bit” after she began going to the
Diamond Headache Clinic, but that eventually, “everything sort of plateaued . . . at the
same headache level all the time.” (R. 40).
D.

Vocational Expert’s Testimony
Lee Knutson testified at the hearing as a vocational expert. (R. 44-50). He

characterized Plaintiff’s prior work as a teacher’s aide as either semi-skilled with medium
exertion or semi-skilled with light exertion. (R. 46). The ALJ described a hypothetical
individual of Plaintiff’s age, education, work experience and skill set who can occasionally
lift 20 pounds; frequently lift or carry 10 pounds; never climb ladders, ropes or scaffolds;
10

never be around concentrated exposure to unprotected heights; and must be able to sit or
stand at will. (R. 46-47). The vocational expert testified that such an individual could not
perform Plaintiff’s past work as a teacher’s aide, but could do other jobs available in the
regional economy, such as bench assembler (2,000 jobs), order clerk (3,200 jobs), or
surveillance system monitor (1,850 jobs). (R. 47).
The ALJ next asked the vocational expert to consider an individual who also was
limited to performing sedentary work consisting of simple, routine and repetitive tasks. (R.
47-48). The vocational expert stated that such a person could perform the same jobs he
listed previously. (R. 48). However, he stated that an individual would no longer be
capable of performing these jobs if she was unable to engage in sustained work on a
regular and continuing basis for 8 hours a day, 5 days a week, either because she regularly
needed to be absent at least twice a month, or needed breaks exceeding 5 to 15 minutes
every two hours plus a half-hour to an hour for lunch. (R. 49).
E.

Discussion of Borderline Age
Toward the end of the hearing, Plaintiff’s attorney alerted the ALJ to the fact that

Plaintiff was within a few months of turning 50 years old as of the DLI. He observed that
she would be found disabled under the “grid rule” (a reference to the Social Security
Administration’s Medical-Vocational Guidelines, known as the “Grid”) if she were 50 years
old and limited to sedentary work. (R. 51). Counsel urged the ALJ to consider this,
observing “I know there is ability for the Judge to, to grant as of, a couple of months prior
to the actual birth date for, with regards to the, to the grid rule.” (Id.). To this, the ALJ
replied that: “They’re, the dates are not to be mechanically applied” and asked whether
Plaintiff wished to amend the onset dates. After some discussion of this question (counsel
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said an earlier onset date would not help), the ALJ said he would take “a real close look at
this file before we suggest any changes . . . in the dates ....” (R. 51-52).
F.

ALJ’s Decision
In his written decision, the ALJ found that Plaintiff’s headaches and “temporal

craniotomy for biopsy of cavernous sinus lesion” are severe impairments, but that they do
not meet or equal those listed in the Social Security Regulations. (R. 61-62). The ALJ
determined that through the DLI of December 31, 2001, Plaintiff retained the residual
functional capacity (“RFC”) to perform sedentary work, with the following restrictions: (1)
she must be allowed to sit or stand alternatively at will; (2) she can never climb ladders,
ropes or scaffolds; (3) she must avoid concentrated exposure to unprotected heights; and
(4) she is limited to performing simple, routine and repetitive tasks. (R. 62).
In reaching this conclusion, the ALJ discussed Plaintiff’s testimony concerning the
limiting effects of her headaches and vision problems, but found that she was not entirely
credible in that regard. (R. 62-64). He noted, for example, that Plaintiff’s impairment “has
improved and she is no longer taking pain medication for her headaches.” (R. 63). The
ALJ also observed that Plaintiff sought employment after the school district failed to renew
her teacher’s aide contract, and that she testified to being “determined” to continue
working. (R. 63-64).
With respect to the medical evidence, the ALJ acknowledged treatment records from
Dr. Diamond indicating that Plaintiff complained of headaches of varying severity from May
20, 1999 to May 11, 2001. (R. 63). In the ALJ’s view, however, those same records also
indicate that Plaintiff’s symptoms “were controlled through the use of pain medication.”
(Id.). In addition, the ALJ found it significant that Dr. Rosseau’s records similarly reflect that
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Plaintiff’s headaches had improved over time, and that the size of the lesion had decreased
as of March 20, 2001. (Id.). He noted, moreover, that Dr. Panepinto found insufficient
medical evidence to support Plaintiff’s allegations of disabling headaches and vision
problems. (R. 64). The ALJ thus concluded that Plaintiff’s headaches were “controlled by
medication,” and that she has experienced “steady improvement [since her August 1996
surgery] and no longer has to use pain medication to control her headaches.” (Id.).
At Step 5, the ALJ found that, through the DLI of December 31, 2001 and
considering Plaintiff’s age, education, work experience and RFC, there are jobs that exist
in significant numbers in the national economy that Plaintiff could perform and so she is not
disabled. (R. 65). In reaching this conclusion, the ALJ noted that Plaintiff “was born on
March 24, 1952 and was 49 years old, which is defined as a younger individual age 18-44
(sic),2 on the date last insured (20 CFR 404.1563).” (R. 64). There is no mention of
Plaintiff being within a few months of the next highest age category. The ALJ also stated
that Plaintiff has at least a high school education and is able to communicate in English.
(Id.). The ALJ noted that transferability of job skills is not material to the determination of
disability because using the Grid as a framework supports a finding that Plaintiff is not
disabled regardless of skill transferability. (Id.).
Since Plaintiff has additional limitations that preclude her from performing the full
range of sedentary work, the ALJ indicated that he had heard testimony from a vocational
expert on whether a person with Plaintiff’s stated RFC, who was 49 years old as of the DLI,
could adjust to other work. (R. 65). The ALJ stated that he accepted the vocational

2

The age range for younger individuals is 18-49. See 20 C.F.R. § 404.1563(c); 20
C.F.R. Pt. 404, Subpt. P, App. 2 at § 201.00(h)(1).

13

expert’s testimony that such a person could perform a number of other jobs such as a
bench assembler (2,000 jobs), order clerk (3,200 jobs) or surveillance system monitor
(1,850 jobs). (R. 64). Given her ability to perform a significant number of jobs available in
the regional economy, the ALJ found that Plaintiff is not disabled. (R. 64-65).
DISCUSSION
A.

Standard of Review
Judicial review of the Commissioner’s final decision is authorized by Section 405(g)

of the Social Security Act. See 42 U.S.C. § 405(g). A “court will reverse an ALJ’s denial
of disability benefits only if the decision is not supported by substantial evidence or is based
on an error of law.” Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009). Evidence is
considered substantial “so long as it is ‘sufficient for a reasonable person to accept as
adequate to support the decision.’” Ketelboeter v. Astrue, 550 F.3d 620, 624 (7th Cir.
2008) (quoting Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003)). The reviewing court
may not “displace the ALJ’s judgment by reconsidering facts or evidence, or by making
independent credibility determinations.” Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
Even when there is adequate evidence in the record to support the decision, however, the
findings will not be upheld if the ALJ does not “build an accurate and logical bridge from the
evidence to the conclusion.” Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008); see also
42 U.S.C. § 405(b)(1) (denial of benefits must contain a discussion of the evidence and a
statement of the Commissioner’s reasons).
B.

Disability Standard
A claimant who can establish she is “disabled” as defined by the Social Security Act

is entitled to disability insurance benefits. Liskowitz v. Astrue, 559 F.3d 736, 739-40 (7th
14

Cir. 2009). “Disability” means an “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be
expected . . . to last for a continuous period of not less than 12 months.” 42 U.S.C.
§§ 423(d)(1)(A), 1382(a)(3)(A). An individual is under a disability if she is unable to do her
previous work and cannot, considering her age, education, and work experience, partake
in any gainful employment that exists in the national economy. 42 U.S.C. § 423(d)(2)(A).
Gainful employment is “the kind of work usually done for pay or profit, whether or not a
profit is realized.” 20 C.F.R. § 404.1572(b). In addition, a claimant must show that the
disability arose while she was insured for benefits. See 42 U.S.C. §§ 423(a)(1)(A), (c)(1);
Senkiewicz v. Barnhart, 409 F.3d 798, 802 (7th Cir. 2005).
In determining whether a claimant suffers from a disability, the ALJ conducts a
standard five-step inquiry: (1) Is the claimant presently unemployed? (2) Is the claimant’s
impairment severe? (3) Does the impairment meet or equal one of a list of specific
impairments enumerated in the regulations? (4) Is the claimant unable to perform her
former occupation? and (5) Is the claimant unable to perform any other work? 20 C.F.R.
§ 404.1520(a)(4); Zurawski v. Halter, 245 F.3d 881, 885 (7th Cir. 2001) (citations omitted).
The steps are performed in sequence, and the ALJ only proceeds to the next step if he
cannot make a final finding (of disabled or not disabled) at the prior step. 20 C.F.R.
§ 404.1520(a)(4). In order to determine at Step 4 whether the claimant can perform any
past relevant work, the ALJ must first assess the claimant’s RFC, id., which is defined as
the most that the claimant can do in light of the physical and mental limitations that affect
the claimant’s ability to perform in a work setting. 20 C.F.R. § 404.1545. If the inquiry
reaches Step 5, the burden shifts to the ALJ to establish that the claimant is capable of
15

performing work in the national economy. Zurawski, 245 F.3d at 886 (citation omitted).
This determination at Step 5 is made by assessing the claimant’s age, education, work
experience, and RFC “to see if [the claimant] can make an adjustment to other work.” 20
C.F.R. § 404.1520(a)(4)(v).
C.

Analysis
In her motion, Plaintiff asserts three grounds for reversal, all of which concern

whether the Commissioner met his burden at Step 5 of the disability analysis. Specifically,
she argues that the ALJ erred (1) by applying the age categories of the regulations in a
mechanical manner to classify her as a “younger individual” rather than considering
whether her borderline age made it more appropriate to place her in the next higher age
category, dictating a finding of disabled; (2) by finding her testimony concerning the severity
of her headaches less than fully credible and not discussing certain evidence; and (3) by
not including any RFC limits on her ability to sustain full-time work due to her headaches.
For the reasons set forth below, this Court agrees with Plaintiff and remands the case on
all three grounds.
1.

Borderline Age

For purposes of applying the Grid rules in this case, the Plaintiff’s age categorization
is significant. Based on her RFC, education, and work experience, if the ALJ had placed
Plaintiff in the 50 to 54 age group, rather than using her chronological age of 49, the Grid
would have dictated a finding that she was disabled on the last date she was eligible for
disability benefits. But the ALJ did not address whether Plaintiff’s borderline age – less
than three months shy of 50 – merited categorizing her in the next higher age group.
Instead, he merely noted that she was “born on March 24, 1952 and was 49 years old [on
16

her DLI], which is defined as a younger individual,” and then concluded that using the Grid
as a “framework,” Plaintiff would be considered “not disabled.” (R. 51-52). Then, after
finding that Plaintiff had the RFC to perform sedentary work with certain limitations, he
noted that the Grid rules could not be used to “direct a conclusion” because they did not
exactly fit Plaintiff’s vocational factors, as she had certain nonexertional limitations that
prevented her from performing the full range of sedentary work. (R. 65). Accordingly, he
posed hypothetical questions to a vocational expert that reflected Plaintiff's vocational
profile, including her age, and the vocational expert opined that there were thousands of
jobs in the Chicago area to which a person with this vocational profile could adapt. (R. 4650, 65). Relying on this testimony, the ALJ concluded that Plaintiff was capable of
adjusting to other jobs that existed in significant numbers, and therefore was not disabled.
(R. 65-66).
Plaintiff challenges this determination, asserting that the ALJ made an improper
mechanical application of the age categories by ignoring the fact that she was at a
“borderline” age. See 20 C.F.R. § 404.1563(b) (If a claimant is “within a few days to a few
months of reaching an older age category, and using the older age category would result
in a determination or decision that [claimant is] disabled, [the ALJ] will consider whether to
use the older age category after evaluating the overall impact of all the factors of
[claimant’s] case.”) Plaintiff contends the ALJ should have considered her borderline age
and categorized her as “closely approaching advanced age” (ages 50 to 54), resulting in
a finding that she is disabled.
a.

The Regulatory Framework: In determining whether a claimant can

make an adjustment to other work, the ALJ must consider the claimant’s vocational factors
17

of RFC, age, education, and work experience. 20 C.F.R. § 404.1520(g)(1). Prior to 1978,
ALJs relied primarily on vocational experts to establish at Step 5 the existence of suitable
jobs in the economy based on the claimant’s capacities and limitations. See Heckler v.
Campbell, 461 U.S. 458, 461, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983) (“Campbell”).
Responding to criticism that these individualized assessments by different vocational
experts led to inconsistent treatment of similar claimants, the Secretary of Health and
Human Services3 promulgated the Medical-Vocational Guidelines, known as the “Grid,” to
promote uniformity and efficiency in disability adjudications. Id. The Grid includes three
tables reflecting the capability to work at a specified level of exertion on a sustained basis
for sedentary work, light work, and medium work. See 20 C.F.R. Pt. 404, Subpt. P, App.
2 at tbls 1-3. Each table contains a series of rules, which incorporate the principal
vocational elements of age, education and skill level from past relevant work to direct an
outcome of “disabled” or “not disabled” based on these factors and the claimant’s RFC.
Id. The age categories are: younger (18-49); closely approaching advanced age (50-54);
and advanced age (55 or older). Id. at § 201.00(d), (g) & (h); 20 C.F.R. § 404.1563(c)-(e).
The Grid rules permit the Social Security Administration to take “administrative
notice” of the existence of various classes of jobs in the national economy and their
vocational prerequisites; “[t]hus, when all factors coincide with the criteria of a rule, the
existence of such jobs is established.” 20 C.F.R. Pt. 404, Subpt. P, App. 2 at § 200.00(b).
In other words, if the criteria of a Grid rule exactly fit a claimant’s vocational factors, the rule
dictates the outcome; but if no rule fits a claimant exactly, the Grid provides only a

3

Prior to March 31,1995, responsibility for administering the Social Security and
Supplemental Security Income programs fell on the Secretary of Health and Human Services.

18

“framework” or guidance for the disability determination. Id. at § 200.00(a); see also
Campbell, 461 U.S. at 461-62 (“Where a claimant’s qualifications correspond to the job
requirements identified by a rule, the guidelines direct a conclusion as to whether work
exists that the claimant could perform.”). If no Grid rule corresponds with the claimant’s
qualifications and limitations, the ALJ must consider supplemental evidence to reach a
determination. 20 C.F.R. Pt. 404, Subpt. P, App. 2 at § 200.00(a); see also Campbell, 461
U.S. at 462 n.5 (“If an individual’s capabilities are not described accurately by a rule, the
regulations make clear that the individual’s particular limitations must be considered.”).
This supplemental evidence may include vocational expert testimony. See Zurawski v.
Halter, 245 F.3d 881, 889 (7th Cir. 2001) (citing Luna v. Shalala, 22 F.3d 687, 691 (7th Cir.
1994)) (where a nonexertional limitation may substantially limit the range of work claimant
can perform, the ALJ must consult a vocational expert). Furthermore, the Grid rules
establish that where, like here, the claimant has both exertional and nonexertional
limitations, the ALJ must first determine whether the claimant is disabled based on the
exertional limitations alone and, if not, only then should the ALJ go on to consider whether
the claimant’s work capability is further diminished by the nonexertional limitations. 20
C.F.R. Pt. 404, Subpt. P, App. 2 at § 200.00(e)(2).
The regulations define “age” to mean “chronological age.” 20 C.F.R. § 404.1563(a).
But most relevant to the Plaintiff’s argument in this case, the regulations provide the
following explanation of how the age categories are to be applied:
. . . We will use each of the age categories that applies to you during the
period for which we must determine if you are disabled. We will not apply the
age categories mechanically in a borderline situation. If you are within a few
days to a few months of reaching an older age category, and using the older
age category would result in a determination or decision that you are
19

disabled, we will consider whether to use the older age category after
evaluating the overall impact of all the factors of your case.
Id. at § 404.1563(b).4 To interpret the regulations for its ALJs, the Social Security
Administration produced a guidance document called the Hearings, Appeals, and Litigation
Law Manual (HALLEX). See Perkins v. Chater, 107 F.3d 1290, 1294 (7th Cir. 1997) (noting
that the courts have considered the HALLEX as indicative of how the Social Security
Administration instructs its ALJs to adjudicate these matters). In borderline age situations,
the HALLEX instructs ALJs to take a “sliding scale” approach:
[T]he claimant must show progressively more vocational adversity(ies)–to
support use of the higher age–as the time period between the claimant's
actual age and his or her attainment of the next higher age category
lengthens. . . . Absent a showing of additional adversity(ies) justifying use of
the higher age category, the adjudicator will use the claimant's chronological
age–even when the time period is only a few days. The adjudicator need not
explain his or her use of the claimant's chronological age.
Hallex II-5-3-2 (Nov. 2, 1993), available at http://www.ssa.gov/OP_Home/hallex/hallex.html
(last visited June 10, 2011). An internal agency manual such as the HALLEX lacks the
force of law, however, and is “entitled to respect” only to the extent it is persuasive. See
Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000).5

4

The Commissioner does not challenge whether Plaintiff’s age – less than three
months shy of 50 – is “within a few days to a few months” of the next age category. In any event,
while the regulations are less than precise about how many months is “a few,” the case law makes
clear that Plaintiff’s age creates a borderline situation. See Smith v. Barnhart, No. 00 C 2643, 2002
WL 126107, *3 (N.D. Ill. Jan. 31, 2002) (collecting cases on age ranges that fall within the
borderline window); Freundt v. Massanari, No. 00 C 4456, 2001 WL 1356146 (N.D. Ill. Nov. 2,
2001) (a gap of three months or less creates a borderline situation).
5
The HALLEX manual predates the amendments to the regulations in 2000. Among
other changes, the amendments revised the definition of “age” set forth in § 404.1563 to omit the
language that directed ALJs to consider, in determining the claimant’s age, the extent to which age
affects the claimant’s ability to adapt to a new work situation and perform work in competition with
others. Neither of the parties raised the issue of whether or how the amendments may affect the
applicability of the HALLEX guidance.

20

b.

An ALJ Must Explicitly Consider Borderline Age Situations: An

examination of the case law in this district shows that the courts have required ALJs to
consider and explain their age category determinations in borderline age situations. For
example, in Freundt v. Massanari, No. 00 C 4456, 2001 WL 1356146 (N.D. Ill. Nov. 2,
2001), the court addressed a situation, like Plaintiff’s, in which the Grid would have dictated
a finding of “disabled” had the plaintiff been categorized in the higher age group. Like in
this case, the ALJ in Freundt made no reference to the borderline age issue beyond
observing that the Plaintiff was a “younger individual” based on his chronological age of
approximately 49 and six months. Id. at *17. The court held, “It is the Commissioner’s
burden in the first instance to discuss the borderline age issue whenever the claimant is
within a few days or months of the next age category and the advance to the next age
category would change the outcome of applying the Grid.” Id. at *19 (citing Daniels v.
Apfel, 154 F.3d 1129, 1136 (10th Cir. 1998)). The court noted that the Commissioner must
make this determination “on whatever evidence is available,” which may (but is not required
to) include expert evidence, such as vocational expert testimony. Id. at *19-20 (citing
Daniels, 154 F.3d at 1136). Moreover, the court noted the absence of any legal authority
“for the proposition that combining use of the Grid with obtaining testimony from a
vocational expert automatically proves the ALJ did not apply the Grid mechanically
regarding the age category.” Id. at *20 (citing Graham v. Massanari, No. 00 C 4669, 2001
WL 527326, *8 (N.D. Ill. May 9, 2001)). Because the ALJ failed to make an age category
determination, the court remanded the case, directing the Commissioner to “analyze the
borderline age issue and explain in the ruling what evidence was considered in making the
age category decision.” Id. at *20.
21

The court in Graham v. Massanari reached the same conclusion on identical facts
as this case, remanding the matter for application of the borderline age regulation since
“[t]here is no evidence or indication in the record that the ALJ ever considered the
borderline regulation as applied to Plaintiff.” Graham, 2001 WL 527326, *8. As in this
case, the plaintiff in Graham was several months shy of age 50, at which point the Grid
would have directed a finding of “disabled.” See id. Also as in this case, the ALJ
concluded that the Plaintiff had nonexertional limitations that prevented him from
performing the full range of sedentary work, and therefore considered the testimony of a
vocational expert before reaching a final determination that the plaintiff was capable of
performing other work and, thus, was not disabled. See id. at *6-7. The Graham court was
not persuaded to find the age category application sufficient based solely on the fact that
the ALJ relied on a vocational expert, finding no legal support for the assertion that the age
categories cannot be found to be applied mechanically when vocational expert testimony
is considered. Id. at *8. Other courts in this district also have remanded cases where the
ALJ failed to make an age category determination in a borderline age situation. See Young
v. Barnhart, 287 F.Supp.2d 905, 913 (N.D. Ill. 2003); Hawkins v. Apfel, No. 97 C 6760,
1998 WL 378421, *1 (N.D. Ill. July 1, 1998); Tousignant v. Apfel, No. 97 C 4150, 1998 WL
142415, *5 (N.D. Ill. Mar. 26, 1998); see also Cuevas v. Astrue, No. 06 C 5783, at 32, 3435) (N.D. Ill. Aug. 27, 2007) (Keys, J.) (unpublished) (Doc. 18-1) (remanding based, in part,
on ALJ’s failure to explain her decision to use claimant’s chronological age in a borderline
age situation).
This case differs considerably from the situation in Smith v. Barnhart, for example,
where the court rejected the plaintiff’s borderline age argument because “the ALJ not only
22

expressly considered the borderline age situation, but he also provided a detailed rationale
for choosing to place [the plaintiff] in the younger age individual category as opposed to the
approaching advanced age category.” Smith v. Barnhart, No. 00 C 2643, 2002 WL
126107, *4 (N.D. Ill. Jan. 31, 2002). Notably, like the courts in Freundt and Graham, the
Smith court adopted the Tenth Circuit’s approach, which finds age categorization in a
borderline situation to be “a factual rather than a discretionary matter.” Id. at *3 (citing
Daniels v. Apfel, 154 F.3d 1129, 1135-36 (10th Cir. 1998)).

As the Tenth Circuit

summarized it:
The Commissioner must determine based on whatever evidence is available
which of the categories on either side of the borderline best describes the
claimant, and the Commissioner may apply that category in using the grids.
Like any factual issue, a finding regarding the appropriate age category in
which to place a claimant must be supported by substantial evidence.
Id. at 1136. By contrast, in this case the ALJ never even mentioned in his decision that
Plaintiff presented a borderline age situation, let alone explained what evidence he relied
upon in electing to use her chronological age.
There is a divergence of opinion within the circuits on the issue of whether an ALJ
must explicitly show in his decision that he considered the borderline age issue. The
Seventh Circuit, in which this Court sits, has not expressly ruled on the issue. In line with
the rulings in this district, the Tenth and Third Circuits have held that an ALJ must show in
his decision that he has performed the analysis required in a borderline age situation by 20
C.F.R. § 404.1563. See Daniels, 154 F.3d at 1136; Kane v. Heckler, 776 F.2d 1130, 113234 (3d Cir. 1985).

More specifically, an ALJ must make an explicit age category

determination based on whatever evidence is available, and this finding must be supported
by substantial evidence. See Daniels, 154 F.3d at 1136. Multiple courts in this district have
23

expressly adopted the Tenth Circuit’s approach in Daniels. E.g., Smith, 2002 WL 126107,
*4; Freundt, 2001 WL 1356146, *19-20; Graham, 2001 WL 527326, *8.
While all the circuits that have addressed this issue agree that the ALJ must
consider a borderline age situation, several circuits have rejected the argument that the
borderline-age regulations are applied mechanically in violation of § 404.1563 when the
ALJ fails to explicitly indicate that consideration was given to the claimant’s borderline age
status. For example, in Lockwood v. Commissioner Social Security Administration, 616
F.3d 1068 (9th Cir. 2010), cert. denied, 2011 WL 829014 (May 11, 2011), the Ninth Circuit
inferred that the ALJ had considered the borderline age situation based solely on the fact
that the ALJ’s decision cited Plaintiff’s age and the regulation. In Miller v. Commissioner
of Social Security, 241 F. App’x 631, 635 (11th Cir. 2006), the Eleventh Circuit found no
violation, despite the lack of a borderline age determination, where the ALJ found such an
age determination to be “essentially theoretical” since the plaintiff had nonexertional
impairments that required vocational expert testimony at Step 5.6 Finally, relying on the
regulatory language and the procedural guidance in the HALLEX manual, the Sixth Circuit
in Bowie v. Commissioner of Social Security, 539 F.3d 395, 399 (6th Cir. 2008), held that
although ALJs are obligated not to apply the age categories mechanically, “nothing in
[§ 404.1563's] language obligates an ALJ to address a claimant’s borderline age situation
in his opinion or explain his thought process in arriving at a particular age category

6

Alternatively, the Miller court rejected plaintiff’s argument on the ground that the
burden rests with the borderline-age plaintiff to proffer evidence that he or she should be bumped
up to the next age category, 241 F. App’x at 634, a view which the Seventh Circuit has soundly
rejected. See Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004) (citing Zurawski, 245 F.3d at
886) (holding that the burden shifts to the ALJ if the claimant makes it past Step 4); see also Smith,
2002 WL 126107, *4 (citing Daniels, 154 F.3d at 1134).

24

determination.” The Bowie court rejected the approach taken by the Tenth Circuit in
Daniels and the Third Circuit in Kane on the ground that Kane was decided prior to
publication of the HALLEX manual, which states that the ALJ need not explain his or her
use of the claimant’s chronological age, see Hallex II-5-3-2, and Daniels relied upon Kane.
Id. at 401-403.7
This Court is not persuaded that it should reject the precedent in this district,
adopting the Third and Tenth Circuit approaches, in favor of the alternate approach
adopted by the Sixth, Ninth, and Eleventh Circuits. Even the Sixth Circuit acknowledges
that ALJs must provide enough detail to show that their decisions are supported by
substantial evidence as required by 42 U.S.C. § 405(g). See Bowie, 539 F.3d at 400 (“That
§ 1563(b) does not impose a per se procedural requirement to address borderline age
categorization explicitly in every borderline case does not relieve ALJs of their obligation
to provide enough explanation of their overall disability determination to assure reviewers
that their decisions are supported by substantial evidence.”). This Court is more persuaded
by the dissent in Bowie, which advocates adopting the Tenth Circuit’s approach in Daniels
of requiring that “ALJs must provide some record of their thought process regarding the
requirements of § 404.1563(b).” Bowie, 539 F.3d at 403 (Moore, J., dissenting). As the
dissent asserts, “the ALJ’s failure to note that the ALJ has considered whether a claimant
falls within a borderline category and, if so, whether bumping the claimant up is warranted,
constitutes a failure to offer findings of fact and reasons for the decision.” Id. at 404. In the
7

The Tenth Circuit has not subsequently ruled on this issue, while the Third Circuit
affirmed its approach, and continued to rely on Kane, after publication of the HALLEX manual. See
Lucas v. Barnhart, 184 F. App’x 204, 208 (3d. Cir. 2006) (holding that the ALJ’s decision is not
supported by substantial evidence because the record contains no factual findings relevant to the
borderline age analysis under § 404.1563(b)).

25

Court’s view, the Sixth Circuit’s deference to the HALLEX manual is not merited to the
extent that it does not require ALJs to show that they have given the requisite consideration
to the claimant’s age categorization in a borderline situation, including articulating the
justification for the age category determination where the evidence is equivocal.
In this case, the ALJ not only failed to articulate a non-mechanical conclusion about
which age category was appropriate for Plaintiff, he failed to state whether he considered
the borderline-age issue at all. Therefore, it is impossible to know what conclusions, if any,
the ALJ reached based on the evidence in the record. The mere fact that the ALJ
consulted a vocational expert – which was required due to Plaintiff’s nonexertional
limitations rendering the Grid rule non-dispositive – does not automatically prove that the
ALJ did not apply the Grid mechanically regarding Plaintiff’s age category. See Freundt,
2001 WL 1356146, *20; Graham, 2001 WL 527326, *8. Indeed, the ALJ never stated that
he relied on the vocational expert’s testimony, or any other evidence, in determining
Plaintiff’s age category. The ALJ must, at a minimum, acknowledge that he considered the
borderline-age issue non-mechanically, and doing so likely requires some explanation,
however brief, of the conclusion he reached.

Anything less makes judicial review

impossible.
In summary, the ALJ failed to show that he considered Plaintiff’s borderline age or
otherwise explain why he used her chronological age instead of placing her in the next
higher age category. As a result, the age category determination is not supported by
substantial evidence and must be reversed.

26

2.

The RFC Finding

Plaintiff also argues that the ALJ’s RFC finding is flawed because he ignored
medical records supporting Plaintiff’s claims of disability. The ALJ determined that as of
her DLI of December 31, 2001, Plaintiff was capable of performing sedentary work, as long
as she could sit and stand at will, never have to climb ladders, ropes or scaffolds, avoid
concentrated exposure to unprotected heights, and engage in only simple, routine and
repetitive tasks. (R. 62). The ALJ acknowledged Dr. Diamond’s treatment records showing
that Plaintiff “complained of headaches of varying severity,” but also found that those same
records showed that Plaintiff’s “symptoms were controlled through the use of pain
medication.” (R. 63). Rather than cite to any specific record from the Diamond Headache
Clinic, however, the ALJ relied primarily on Dr. Rosseau’s treatment notes. For example,
Dr. Rosseau stated that: (1) Plaintiff’s headaches were “well tolerated” on her medications
as of November 1999 (R. 270); (2) she had “improved” as of February 18, 2000 (R. 269);
and (3) her headaches were “much improved” and “well controlled” with medication as of
March 27, 2001. (R. 268).
The problem is that Dr. Diamond’s notes do not so clearly reflect steady
improvement in Plaintiff’s condition. From 1997 to 2005, Plaintiff consistently reported two
to three moderate to severe headaches per week. On August 12, 1999, she reported
having five severe headaches since July 26, 1999 that left her bedridden, and one
additional mild headache per week. (R. 227). In November 1999, she complained that for
a two-week period, she had woken up in the middle of the night with headaches. She also
told Dr. Diamond that she was having almost daily headaches four to five times per week.
(R. 226). On February 4, 2000, Plaintiff reported a headache that could not be relieved
27

with Tylenol #3, and that resulted in nausea and vomiting. Dr. Diamond prescribed Vicodin.
(R. 225). Shortly after her visit with Dr. Rosseau on February 18, 2000, Plaintiff told Dr.
Diamond that she had experienced three week-long headaches that month and could not
sleep. She improved a little when she switched back to brand name Vivactil, but she also
reported getting headaches in the afternoon, which she treated with Tylenol #3 and sleep.
The headaches initially went away, but then returned in the late evening, along with double
vision. (R. 224). In November 2000, Plaintiff reported experiencing three to four mild to
moderate headaches per week. (R. 221). As of May 10, 2001, Plaintiff still had three to
four moderate to severe headaches per week, though she was able to abort them with
medications. (R. 220). On November 8, 2001, Plaintiff said that she had had “the best
summer” without severe headaches, but she also complained of having six or seven
headaches at a level of 7 out of 10, and getting headaches twice a week that fall. (R. 219).
The ALJ failed to discuss any of these records, or to explain how they support his
conclusion that Plaintiff “experienced steady improvement” and had her headaches under
control with pain medication. (R. 64). See SSR 96-8p, at *5 (“The RFC assessment must
be based on all of the relevant evidence in the case record . . . .”) (emphasis in original);
see also Alexander v. Astrue, No. 09 C 3406, 2010 WL 3199356, at *10 (N.D. Ill. Aug. 10,
2010) (“The ALJ must examine the entire record to construct an RFC and confront
evidence that does not support his determination.”) Notably, the ALJ twice stated that
Plaintiff was no longer taking pain medication at all, (R. 63-64), but Dr. Diamond routinely
prescribed Tylenol #3 both before and after the DLI. (See, e.g., R. 209, 213, 218, 219, 225,
227).

28

Dr. Diamond also noted that Plaintiff experienced sensitivity to light and sounds
when she got headaches, and Plaintiff testified at the hearing that her headaches could be
triggered by light, sounds, odors and stress. (R. 31, 33-34, 42-43, 219). Yet the ALJ made
no mention of this evidence, much less explained whether or why he rejected it. Defendant
claims that the ALJ reasonably accommodated these sensitivities in the RFC, but it is not
clear how performing simple, repetitive tasks, sitting and standing at will, and avoiding
climbing and exposure to heights addresses difficulties with smells, sounds and lights.
This error is not harmless because SSR 96-8p provides that “[i]n assessing RFC,
the [ALJ] must discuss the individual’s ability to perform sustained work activities in an
ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a
week, or an equivalent work schedule) . . . .” Id. at *7. At the January 8, 2008 hearing, the
vocational expert opined that an individual with Plaintiff’s RFC could not perform any
“competitive work” if she required more than customary breaks (i.e., 5 to 15 minutes every
two hours plus a half-hour to an hour for lunch), or was regularly absent two days a month.
(R. 48-49). Cf. Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir. 2008) (“A person who has a
chronic disease . . . and is under continuous treatment for it with heavy drugs, is likely to
have better days and worse days,” but she could not hold down a full-time job if she was
only well enough to work half the time). By omitting any discussion of Dr. Diamond’s
treatment notes regarding the frequency of Plaintiff’s headaches, potential triggers, and her
methods of treating them (including sleep), the ALJ failed to build an accurate and logical
bridge from the evidence to his conclusion that Plaintiff is capable of full-time employment.
Berger, 516 F.3d at 544.

29

Defendant stresses that neither Dr. Rosseau nor Dr. Diamond recommended any
restrictions on Plaintiff’s activities. (Doc. 22, at 6). Defendant also makes much of the fact
that Plaintiff told Dr. Diamond she was going on vacation or out of town several times. (R.
221, 223, 227). None of these facts appears in the opinion of the ALJ, however, and so
may not be used as grounds to uphold the ALJ’s decision on review. See SEC v. Chenery
Corp., 318 U.S. 80, 87-88, 63 S.Ct. 454, 87 L.Ed 626 (1943); Martinez v. Astrue, 630 F.3d
693, 694 (7th Cir. 2011).
Nor is the Court persuaded that the ALJ’s decision may be upheld based on the fact
that Dr. MacLean and Dr. Panepinto found insufficient evidence of any disability. (Doc. 22,
at 5). The ALJ does refer to these opinions, and it is true that Dr. Maclean endorsed Dr.
Panepinto’s finding that “[t]he medical evidence in file appears insufficient to indicate a
finding of disabled can be made prior to DLI . . . .” (R. 310). At the same time, neither
physician checked the box on the reviewing form indicating that Plaintiff’s headaches were
non-severe. (R. 308, 325). Moreover, the ALJ had an obligation to review the significant
evidence from Plaintiff’s treating physician that she continued to suffer regularly from
severe headaches that arguably would prevent her from maintaining a full-time job.
In conclusion, the ALJ’s RFC assessment is not supported by substantial evidence
and must be reversed.
3.

The ALJ’s Credibility Assessment

Plaintiff finally argues that the ALJ erred in discounting her testimony about the
severity of her headaches. In assessing a claimant’s credibility when the allegedly
disabling symptoms (such as pain or fatigue) are not objectively verifiable, an ALJ must first
determine whether those symptoms are supported by medical evidence. See SSR 96-7p,
30

at *2; Arnold v. Barnhart, 473 F.3d 816, 822 (7th Cir. 2007). If not, SSR 96-7p requires the
ALJ to “consider the entire case record and give specific reasons for the weight given to
the individual’s statements.” Simila v. Astrue, 573 F.3d 503, 517 (7th Cir. 2009) (quoting
SSR 96-7p). The ALJ should look to a number of factors to determine credibility, including
“the objective medical evidence, the claimant’s daily activities, allegations of pain,
aggravating factors, types of treatment received and medication taken, and ‘functional
limitations.’” Id. (quoting 20 C.F.R. § 404.1529(c)(2)-(4)).
Hearing officers are in the best position to evaluate a witness’s credibility and their
assessment will be reversed only if “patently wrong.” Schaaf v. Astrue, 602 F.3d 869, 875
(7th Cir. 2010); Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000). Still, an ALJ must
connect his credibility determinations by an “accurate and logical bridge” to the record
evidence. Sarchet, 78 F.3d 305, 307 (7th Cir. 1996) (ALJ’s credibility determination resting
on a number of erroneous or illogical material statements reversed, despite substantial
evidence supporting it); accord, Ribaudo v. Barnhart, 458 F.3d 580, 584 (7th Cir. 2006);
see also Sayles v. Barnhart, No. 00 C 7200, 2001 WL 1568850, at *7 (N.D. Ill. Dec. 7,
2001) (Schenkier, J.) (particular need to establish logical bridge in credibility
determinations). In addition, however deferential the standard of review of an ALJ’s
credibility determination, the ALJ still must discuss significant evidence contrary to his
conclusion. See Herron v. Shalala, 19 F.3d 329, 333-34 (7th Cir. 1994); Zblewski v.
Schweiker, 732 F.2d 75, 78-79 (7th Cir. 1984); Hall v. Barnhart, No. 04 C 2967, 2005 WL
2129060, at *16 (N.D. Ill. Aug. 12, 2005); see also SSR 96-7p, at *4 (ALJ must consider
“entire case record” in evaluating credibility of claimant’s statements about symptoms).
Because the ALJ’s conclusion that Plaintiff’s reports of her pain were not fully credible
31

rested on impermissible inferences and failures to discuss contrary evidence, this Court
must reverse and remand.
Plaintiff first contends that it was logically inconsistent for the ALJ to find that her
headaches were a “severe” impairment at Step 2 of the analysis, and then rely on Dr.
Panepinto’s opinion that there was insufficient evidence to support her allegations of
disabling headaches and visual problems. However, “step two of the sequential evaluation
. . . is a threshold determination.” Fredenhagen v. Astrue, No. 09 C 4936, 2010 WL
3937474, at *7 (N.D. Ill. Oct. 4, 2010). The mere fact that there was medical evidence
demonstrating the existence of a severe impairment that “significantly limits [Plaintiff’s]
physical . . . ability to do basic work activities,” 20 C.F.R. § 404.1520(c), in no way
undermines Dr. Panepinto’s conclusion that the same evidence was insufficient to establish
that the impairment rose to the level of a disability as defined under the Act.
Plaintiff next objects that the ALJ failed to consider her pain medication and daily
activities, factors that both support her claims of disabling limitations. In fact, the ALJ
expressly recounted Plaintiff’s testimony that the headaches kept her from leaving the
house or performing simple household chores, and that the pain was “so severe that she
was taking a number of medications, including Tylenol #3 (with cod[e]ine) and Vicodin.”
(R. 61, 63). The ALJ also discussed how Plaintiff would “frequently wake up at 3 am
because of her headaches,” which limited her daily activities. (R. 63). Plaintiff notes that
the ALJ made no mention of her husband’s testimony that she lacks the energy to engage
in hobbies such as gardening. (Doc. 18, at 13). That testimony, however, is largely
duplicative of Plaintiff’s own statements. The “ALJ is not required to address every piece
of evidence,” Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000), and “we give the opinion
32

a commonsensical reading rather than nitpicking at it.” Shramek v. Apfel, 226 F.3d 809,
811 (7th Cir. 2000).
More troubling is the fact that the ALJ considered Plaintiff’s efforts to find work after
her contract as a teacher’s aide was not renewed.

Plaintiff testified that she was

“determined” to find work, and thereafter sought employment at the local grocery and as
a secretary, “[b]ut when you put down that you have a brain tumor on an application,
there’s very little calls back [sic].”

(R. 19, 27).

On these facts, without any other

circumstances that might undercut her credibility, “[P]laintiff’s attempts to secure
employment are relevant only to her motivation and not to whether she was, in fact,
disabled.” Bartell v. Cohen, 445 F.2d 80, 82 (7th Cir. 1971). As the Seventh Circuit has
explained,
A claimant might seek a job in ignorance of the nature of his conditions, only
to find later, after being hired, that his attempt to work is unsuccessful due to
his disabilities; or he might work only an hour or two a day; or receive
gratuitous or charitable employment.
Heldenbrand v. Chater, 132 F.3d 36 (Table), at *14 (7th Cir. 1997).
Defendant responds only that the Eighth Circuit has permitted ALJs to use a
claimant’s efforts to seek employment to undercut her credibility. See, e.g., Black v. Apfel,
143 F.3d 383, 387 (8th Cir. 1998) (subjective complaints of disabling pain not fully credible
notwithstanding lengthy work history where the claimant continued to seek work and
receive unemployment benefits after her alleged disability onset date); Naber v. Shalala,
22 F.3d 186, 188 (8th Cir. 1994) (claimant’s intention to return to work “tends to prove that
he is able to work.”). The Seventh Circuit has found that the particulars of a claimant’s
efforts to find work may detract from her credibility in certain circumstances. See Schmidt

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v. Barnhart, 395 F.3d 737, 746 (7th Cir. 2005) (“[C]laimant’s decision to apply for
unemployment benefits and represent to state authorities and prospective employers that
he is able and willing to work,” along with affirmative efforts to find employment, are factors
to consider in the credibility analysis); Knox v. Astrue, 327 F. App’x 652, 656 (7th Cir. 2009)
(ALJ properly discounted claimant’s credibility where he applied for a strenuous position
as a welder, and made statements in that application denying any current back pain or
symptoms). Here, however, Plaintiff’s mere “determination” to work, without more, was not
a proper basis for discounting her credibility.
The ALJ also found Plaintiff not entirely credible based on his conclusion that
Plaintiff’s headaches were controlled by medication and had steadily improved since
August 1996. (R. 63). As discussed earlier, these conclusions are contrary to a number
of treatment records that the ALJ failed to discuss, and thus, they cannot support the
credibility determination in this case. See Allord v. Barnhart, 455 F.3d 818, 821 (7th Cir.
2006) (an ALJ’s credibility finding is not binding if it is “based on errors of fact or logic.”)
Because the ALJ’s credibility finding is contrary to unanalyzed evidence from Dr.
Diamond, and improperly relies on Plaintiff’s determination to find work, it is not supported
by substantial evidence and must be reversed.

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CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Summary Judgment [Doc. 17]
is granted. Pursuant to sentence four of 42 U.S.C. § 405(g), the ALJ’s decision is reversed,
and this case is remanded to the Social Security Administration for further proceedings
consistent with this opinion.
ENTER:

Dated: June 13, 2011

_________________________________
SHEILA FINNEGAN
United States Magistrate Judge

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