Cole v. Astrue

Filing 43

MEMORANDUM Opinion and Order Signed by the Honorable Martin C. Ashman on 8/8/2011:Mailed notice(tlp, )

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

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Case No. 09 C 2895
Magistrate Judge
Martin Ashman

MEMORANDUM OPINION AND ORDER
Plaintiff Joy Cole ("Plaintiff") seeks judicial review of a final decision of Defendant,
Michael J. Astrue, Commissioner of Social Security ("Commissioner"), denying Plaintiff's
application for Disability Insurance Benefits ("DIB") and Supplemental Security Income benefits
("SSI") under Title II of the Social Security Act. Before the Court are motions for summary
judgment filed by Plaintiff and the Commissioner. The parties have consented to have this Court
conduct any and all proceedings in this case, including entry of final judgment. 28 U.S.C.
§ 636(e); N.D. Ill. R. 73.1(c). Unfortunately, the long and troubling history of errors that have
fueled this case for ten years has not come to an end despite clear instructions from the Appeals
Council on the issues that were to have been addressed in this proceeding. For the reasons
discussed below, both motions are granted in part and denied in part.

I.

Legal Standard

In order to qualify for DIB, a claimant must demonstrate that he is disabled. An
individual is considered to be disabled when he is unable to "engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). An individual is under a disability if he is
unable to do his previous work and cannot, considering his age, education, and work experience,
partake in any gainful employment that exists in the national economy. Id. Gainful employment
is defined as "the kind of work usually done for pay or profit, whether or not a profit is realized."
20 C.F.R. § 404.1572(b).
A claim of disability is determined under a five-step analysis. See 20 C.F.R. § 404.1520;
20 C.F.R. § 416.920. First, the SSA considers whether the claimant is engaged in substantial
gainful activity. 20 C.F.R. § 404.1520(4)(I). Second, the SSA examines if the physical or
mental impairment is severe, medically determinable, and meets the durational requirement.
20 C.F.R. § 404.1520(4)(ii). Third, the SSA compares the impairment to a list of impairments
that are considered conclusively disabling. 20 C.F.R. § 404.1520(4)(iii). If the impairment
meets or equals one of the listed impairments, then the applicant is considered disabled; if the
impairment does not meet or equal a listed impairment, then the evaluation proceeds to step four.
Id. Fourth, the SSA assesses the applicant's RFC and ability to engage in past relevant work.
20 C.F.R. § 404.1520(4)(iv). In the final step, the SSA assesses whether the claimant can engage
in other work in light of his RFC, age, education and work experience. 20 C.F.R.
§ 404.1520(4)(v).

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Judicial review of the ALJ's decision is governed by 42 U.S.C. § 405(g), which provides
that "[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive." Substantial evidence is "such evidence as a
reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales,
402 U.S. 389, 401 (1971). The court reviews the entire record, but does not displace the ALJ's
judgment by reweighing the facts or by making independent credibility determinations. Elder v.
Astrue, 529 F.3d 408, 413 (7th Cir. 2008). Instead, the court looks at whether the ALJ
articulated an "accurate and logical bridge" from the evidence to her conclusions. Craft v.
Astrue, 539 F.3d 668, 673 (7th Cir. 2008). Thus, even if reasonable minds could differ whether
the Plaintiff is disabled, courts will affirm a decision if the ALJ's decision has adequate support.
Elder, 529 F.3d at 413 (citing Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007)).

II.

Procedural History

Plaintiff filed for DIB and SSI on September 18, 2001, claiming that she had become
disabled as of June 1, 1999. The Social Security Administration ("SSA") denied her claim
initially and on reconsideration, and Plaintiff appeared for a hearing on December 18, 2002
before an Administrative Law Judge ("ALJ"). On February 6, 2003, the ALJ issued a decision
finding that Plaintiff was not disabled. The ALJ found, for example, that Plaintiff's condition of
Meniere's Disease1 was "severe" but that it did not meet or medically equal a listed impairment
despite the fact that the testifying medical expert, Dr. Walter Miller, stated that it did. (R. 42.)

1

Meniere's Disease "is an inner ear disorder that produces vertigo, fluctuating
senso-rineural hearing loss, and tinnitus." The Merck Manual 794 (18th ed. 2006).
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An action contesting the ALJ's decision was eventually filed in federal court, which remanded
the case to the SSA on a joint stipulation by the parties.
The Appeals Council then issued a remand order on July 8, 2004 that specifically
instructed the ALJ to resolve two issues. First, the Appeals Council noted that the medical
expert failed to state what listing requirement was met by the Plaintiff's medical condition and
that the ALJ failed to evaluate the medical expert's opinion. Accordingly, it instructed the ALJ
to obtain supplemental medical evidence to remedy this failing. Second, the ALJ was directed
re-evaluate the Plaintiff's credibility in accord with the SSA's regulations. (R. 236-37.)
A second administrative hearing was held on October 6, 2004, and the ALJ once again
issued an unfavorable decision on November 23, 2004. (R. 220-23.) The Appeals Council, in
turn, again remanded the case to the ALJ for failing to comply with the instructions contained in
the Council's prior remand order. The ALJ was once again instructed to resolve inconsistencies
between the opinion of the first medical expert, Dr. Miller – who stated that Plaintiff met a
listing requirement – and expert testimony at the second hearing that she did not. The ALJ was
also told once more to evaluate the Plaintiff's credibility in a proper manner and to address
whether Plaintiff had an underlying medically determinable physical or mental impairment that
could reasonably be expected to produce her alleged symptoms. (R. 229-30.)
On remand, the case was assigned to a new ALJ who held a hearing on December 10,
2007 and issued another unfavorable decision on September 19, 2008. The Appeals Council
denied review, and the ALJ's decision became the Commissioner's final decision. Plaintiff then
filed the instant action on May 12, 2009.

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III.

Background Facts

Plaintiff, a 49 year old woman, claims that she became disabled as of June 1, 1999, when
problems with dizziness required her to stop working as an accounting office manager. Plaintiff
had earlier been diagnosed in 1995 by her treating physician, Dr. Michael Farhi, with benign
essential tumor, an involuntary tremor of the arm. (R. 154.) In 1998, Dr. Farhi also diagnosed
Plaintiff with a spastic colon. (R. 152.) More serious symptoms of dizziness and other
equilibrium problems presented in June, 1999 after Plaintiff suffered from an infection of her left
ear. (R. 151-52, 319, 326.) Dr. Farhi followed up his diagnosis by ordering an MRI of Plaintiff's
ears, which showed inflammatory changes to her left mastoid air cells. (R. 126.)
Many related diagnoses followed this initial presentation of symptoms, including
labyrinthitis, an inflammation of the inner ear, nystagmus – an involuntary eye movement related
to vestibular damage – tinnitus, and allergies. (R. 151.) To help diminish the severity of her
dizziness, Dr. Farhi prescribed Valium as well as various allergy medications. Although her
symptoms waxed and waned, they persisted over time, and in January, 2002, Dr. Farhi diagnosed
Plaintiff as suffering from Meniere's Disease. (R. 143-44, 169.) After Plaintiff experienced
some "floor-moving episodes," Dr. Farhi also added vertigo to the list of disorders she was
experiencing in 2002. (R. 165-67.) As before, he noted that her symptoms were not always
uniform and that they waxed and waned over time. (R. 165-69.)

A.

First Administrative Hearing

Plaintiff appeared without counsel at the first administrative hearing held on
December 18, 2002. Plaintiff testified that she experienced some form of equilibrium

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disturbance every day, although the intensity of her symptoms varied from time to time. She
was able to drive short distances, read for thirty minutes, and work on her computer and stand
for twenty minutes each. She stated that she paces herself throughout the day. After performing
a few chores around the house and doing eye exercises to control her nystagmus, Plaintiff rests
before picking up her son from school in the afternoon. She prepares meals step-by-step
throughout the day so that no single task triggers symptoms. Disturbing episodes begin with a
feeling of pressure and weight pressing down on her head, and at their worst, Plaintiff can
experience nausea and feelings "like I'm in an earthquake." (R. 34.) Plaintiff also testified that
the dizziness she experiences had become so disturbing that she sought emergency treatment on
two occasions. Although no audiology records were submitted to the ALJ, Plaintiff stated that
she had a hearing test that showed normal results.
Medical expert Dr. Walter Miller testified that his review of the evidence showed that
Plaintiff suffered from Meniere's Disease. Although Meniere's Disease is ordinarily associated
with hearing loss, Dr. Miller stated that such symptoms wax and wane. Based on his
examination of the medical evidence and questions he asked Plaintiff at the hearing, Dr. Miller
testified that she met a listing category. (R. 42.) Notwithstanding this statement, the ALJ
determined that Plaintiff was not disabled.

B.

The Second Administrative Hearing

Plaintiff continued to see Dr. Farhi after the first administrative hearing, and he also
submitted a Meniere's Disease residual functional capacity ("RFC") assessment on October 4,
2004. Dr. Farhi noted that he had treated Plaintiff for eight years and that she had a history of

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balance problems, tinnitus, and progressive hearing loss that was established by examination in
his office. Attacks occurred for Plaintiff one to two times a month and could last up to five days
at a time. Dr. Farhi stated that Plaintiff was unable to ambulate without assistance during these
episodes and that moving around exacerbated her symptoms. Based on his evaluation of
Plaintiff's condition, Dr. Farhi concluded that Plaintiff was unable to perform work duties while
having an attack. Plaintiff's treating physician also stated that he did not believe that emotional
factors played any part in her symptomology. (R. 297-301.)
Dr. Farhi's report was submitted to the ALJ for the second administrative hearing that
took place on October 6, 2004. Medical expert Dr. Carl Leigh testified that Plaintiff suffered
from chronic labyrinthitis, benign essential tumor, irritable bowel syndrome, and allergic rhinitis.
Dr. Leigh applied listing 2.07, which requires both a disturbed function of the vestibular
labyrinth and hearing loss determined by audiology. Noting that no record of any audiology test
had been presented, Dr. Leigh found that Plaintiff did not meet or medically equal that listing.
As in the first decision, the ALJ again found that Plaintiff was not disabled.

C.

The Third Administrative Hearing

Prior to the third administrative hearing, Dr. Farhi completed a second Meniere's Disease
RFC. Unlike the one submitted at the second hearing, the new RFC assessment stated that
Meniere's Disease had now been established by audiometry. (R. 304.) Dr. Farhi concluded that
Plaintiff would need to take four to five unscheduled breaks during an eight-hour work day and
that she would be absent from work three times a month. (R. 307.) Plaintiff was also examined
prior to the hearing by consulting physician Dr. Zainulabuddin Syed, an internal medicine

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specialist. Dr. Syed determined that Plaintiff had suffered from Meniere's Disease since 1999
and that it prevented her from working. (R. 311.)
Two medical experts testified at the third hearing held on December 10, 2007.
Dr. Roland Manfredi, a neurologist, testified that Plaintiff likely suffered from Meniere's Disease
at first, but that if she had continued to suffer from it, one would expect to see changes in the
inner ear as well as hearing loss. However, Dr. Manfredi admitted that she could have a chronic,
recurring case of the disorder. When pressed by the ALJ as to a possible psychological cause for
Plaintiff's condition, Dr. Manfredi stated that little medical evidence supported such a conjecture.
(R. 365.) Dr. Manfredi, however, did hypothesize that Plaintiff's symptoms could have been
caused by low blood pressure. Both medical experts at the third hearing testified on this issue
only in the hypothetical and did not rely on any part of the record to support a finding that
Plaintiff, in fact, was hypotensive.
Dr. James McKenna, an internal medicine specialist, also testified at the hearing.
Dr. McKenna laid considerable emphasis on Plaintiff's statement that her condition improved if
she sat down and noted that doing so would ordinarily not benefit a person suffering from a
vestibular problem. Like Dr. Manfredi, Dr. McKenna also believed that low blood pressure
could account for Plaintiff's symptoms. Unlike Dr. Manfredi, however, Dr. McKenna testified
that Plaintiff's condition could be psychosomatic in nature, especially considering her lack of
positive reaction to medical management and her "non-specific" symptoms such as a feeling of
pressure in her head. Admitting that he was not an expert in the field, Dr. McKenna stated that
he was "shocked" by Dr. Farhi's statement that Plaintiff experienced two to three attacks a month
and that her symptoms lasted several days after each attack. (R. 393-94.) Dr. McKenna

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concluded that Plaintiff did not meet a listed impairment, but based on Dr. Farhi's evaluation,
Dr. McKenna stated that Plaintiff would not be able to regularly work an eight-hour day while
she was experiencing such symptoms. (R. 394.)
Also present at the third hearing was vocational expert ("VE") Thomas Gusloff. Based
on Dr. McKenna's statements on the number of days Plaintiff would need to be absent from
work, Gusloff testified that Plaintiff was not capable of performing her past relevant work or any
other competitive employment in the national economy. (R. 405-06.) This testimony contrasted
with statements at the first administrative hearing, where VE Cheryl Hoiseth stated that Plaintiff
would be able to work in the national economy. (R. 47-49.)

D.

The ALJ's Decision

The ALJ determined at step one that Plaintiff had not engaged in any substantial gainful
activity since her alleged onset date. At step two, the ALJ stated that Plaintiff suffered from "at
least one" medically determinable, severe impairment, although he did not identify what that
impairment was. Plaintiff was not found to have an impairment or combination of impairments
that met or medically equaled a listing requirement at step three. Finding that Plaintiff's
testimony was not entirely credible, the ALJ determined that she had the RFC to perform
sedentary work and ruled out any activities that required climbing ladders or working at
unprotected heights, more than occasional stooping, working around hazards, operating vehicles,
or tasks that involved understanding, remembering, or carrying out complex tasks on a sustained
basis. Plaintiff had no past relevant work at step four. At step five the ALJ found that

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significant numbers of jobs existed in the national economy that Plaintiff could perform. As a
result, the ALJ concluded that Plaintiff was not disabled. (R. 180-91.)

IV. Discussion
Plaintiff argues that the ALJ erred on multiple grounds. Regarding the five evaluative
steps, Plaintiff contends that the decision was incorrect: (1) at step two when the ALJ failed to
identify which of her impairments were severe; (2) at step three by failing to resolve
inconsistencies in the testimony of various medical experts, as directed by the Appeals Council;
and (3) at step five by failing to resolve inconsistencies in the testimonies of the vocational
experts. Alongside these errors, Plaintiff also argues that the ALJ failed to correctly assess her
credibility and her RFC, erroneously made independent medical findings, and failed to assess the
weight given to the testifying experts or her treating physician.

A.

The Step Two Issue

The ALJ determined that Plaintiff "had at least one, medically determinable, 'severe'
impairment, or its equivalent," (R. 183), but he did not identify which of her various complaints
was found to meet this standard. A careful analysis of the ALJ's reasoning at step two, which
was unusually lengthy, also fails to suggest which of Plaintiff's medical conditions the ALJ
found to be severe. The Commissioner contends that this oversight is legally irrelevant because
step two is essentially a gatekeeping function. If a severe impairment is found, the analysis
proceeds to step three to consider if an impairment or combination of impairments – including
those not found to be severe at step two – meets a listed impairment; if no condition qualifies as

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severe at step two, a claimant is found to be not disabled. See 20 C.F.R. § 404.1520(a)(4)(ii) ("If
you do not have a severe . . . impairment . . . we will find that you are not disabled.").
The Court agrees with this analysis. A finding at step two that a medical condition is
severe "is merely a threshold requirement." Hickman v. Apfel, 187 F.3d 683, 688 (7th Cir.
1999). By finding one impairment to be severe, the ALJ is later obligated to consider the total
effect of all of a claimant's impairments, both severe and non-severe. See Golembiewski v.
Barnhart, 322 F.3d 912, 918 (7th Cir. 2003) ("Having found that one or more of [claimant's]
impairments was 'severe,' the ALJ needed to consider the aggregate effect of this entire
constellation of ailments – including those impairments that in isolation are not severe.")
(emphasis omitted); see also Raines v. Astrue, No. 06-cv-0472, 2007 WL 1455890, at *7 (S.D.
Ind. April 23, 2007) ("As long as the ALJ proceeds beyond step two, as in this case, no error
could result solely from his failure to label an impairment as 'severe.'").
Raines and the Commissioner's own authority, Maziarz v. Sec. of Health & Human
Servs., 837 F.2d, 240 (6th Cir. 1987), both involve an ALJ's failure to classify a given
impairment as severe, not an oversight in actually identifying a severe impairment at step two
altogether. Nevertheless, the Court believes that analogous reasoning applies to this case. By
determining that Plaintiff suffered from at least one severe condition, the ALJ obligated himself
to proceed to step three and, if no listing requirement was met, beyond that point to consider the
full range of Plaintiff's medical complaints as well as all the medical evidence as part of his
subsequent analysis. Although Plaintiff raises various arguments relating to the ALJ's treatment
of the medical experts and his consideration of the evidence concerning her condition, these
arguments are more properly asserted in relation to the other errors alleged in Plaintiff's motion.

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Plaintiff has not shown how the ALJ's failure to identify her severe condition altered his
consideration of the evidence that applies to the remaining evaluative steps. Thus, while the
ALJ's step two discussion could certainly have been more carefully written, his failure to name
the condition he found to be severe does not, in itself, warrant reversal. For these reasons,
Plaintiff's motion is denied, and the Commissioner's motion is granted, on the step two issue.

B.

The Step Three and Medical Source Issues

In its first remand order the Appeals Council noted that the ALJ had not properly
evaluated the medical expert's testimony; the expert had stated at the hearing that Plaintiff met a
listed impairment but did not specify which listing was at issue. (R. 236.) In his second
decision, however, the ALJ did not evaluate the expert's testimony and overlooked that the new
medical expert who testified at the second hearing contradicted the first expert by stating that
Plaintiff did not meet a listing. The Council's second remand order noted these oversights and
directed the ALJ in this case to resolve the inconsistency concerning the listing issue, an order
that implicitly required the ALJ to determine what weight should be given to the various medical
opinions in the record. Plaintiff claims that the ALJ in this case did not comply with either of
these requirements, and the Court agrees.
Despite the Appeals Council's clear directive, the ALJ only remarked that "[e]ither
implicitly or explicitly, all of the medical opinions of record on this issue are in accord."
(R. 186.) Contrary to the Commissioner's claim, the ALJ's statement is conclusory in nature and
fails to address the contradiction between Dr. Miller's and Dr. Leigh's testimony that formed the
basis of the Appeals Council's second remand order. It is particularly striking in this regard that

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the ALJ's decision does not mention the conflict identified by the Council or even acknowledge
Dr. Miller's or Dr. Leigh's statements on the listing issue. Indeed, rather than addressing what
the Appeals Council correctly viewed as a conflict, the ALJ essentially declared that no
inconsistency ever really existed between the various medical opinions. This does not suffice to
reconcile what are clearly opposing views on whether Plaintiff satisfies the step three
requirements.
Moreover, by referring in general terms to "the medical opinions of record," the ALJ did
not limit the scope of his less-than-clear finding to the first two testifying experts; he implicitly
declared that those experts were also in accord with Plaintiff's treating physician, Dr. Farhi, who
also submitted a medical opinion. The Listing 2.07 issue revolved around the question of
whether or not Plaintiff had experienced any hearing loss confirmed by an audiology test, which
is required to meet that listing requirement. Dr. Manfredi and Dr. McKenna testified that no
confirming audiology tests were in the record. But the ALJ failed to note that Dr. Farhi's second
Meniere's RFC assessment specifically stated that audiometry had shown that Plaintiff suffered
from hearing loss. (R. 304.) Insofar as the ALJ was uncertain about Dr. Farhi's meaning on this
critical issue, the regulations directed him to recontact the treating physician for additional
evidence or for clarification of his statement. 20 C.F.R. § 404.1512(e). In the absence of any
discussion of Dr. Farhi's statement, the ALJ did not provide an adequate explanation of his
finding on the listing issue.
The ALJ's failure to address Dr. Farhi's opinion underscores the importance of the
Appeals Council's directive in its first remand order that the ALJ was to evaluate the medical
source opinions. Assigning weight to medical statements is a fundamental duty of an ALJ. See

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Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004) ("Weighing conflicting evidence from
medical experts . . . is exactly what the ALJ is required to do."). As the regulations make clear,
this encompasses all of the medical opinions in the record. 20 C.F.R. § 404.1527(d) ("[W]e will
evaluate every medical opinion we receive."). Social Security Ruling 96-2p also directs an ALJ
to weigh the opinion of a treating medical source like Dr. Farhi. See SSR 96-2p (stating that an
ALJ's decision "must be sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source's medical opinion and the reasons for that
weight."). A treating source's opinion is ordinarily entitled to controlling weight when it is
supported by the objective medical record and is not inconsistent with other substantial evidence.
20 C.F.R. § 414.1527(d)(2); White v. Barnhart, 415 F.3d 654, 658 (7th Cir. 2005).
Like the ALJ who preceded him, the ALJ in this case once again failed to state what
weight was given to any of the medical opinions.2 The result is an uncertainty throughout the
ALJ's decision as to how he reached his conclusions. Taking the example of Meniere's Disease,
which was central to Plaintiff's case, conflicting medical opinions abound in the record. Based
on the audiology issue, both Dr. McKenna and Dr. Manfredi were not convinced that she even
suffered from this disorder at all, a conclusion that the ALJ appears to have adopted in his
decision. Dr. Farhi, however, entered multiple diagnoses of the condition and provided two
Meneiere's Disease RFCs to the ALJ. Dr. Syed agreed with this conclusion, and Dr. Miller
testified at the first hearing that Plaintiff suffered from Meniere's. Despite these inconsistencies,

2

The Commissioner has not responded to Plaintiff's argument on this issue, thereby
waiving any objection to it. See Laborers' Int'l Union of North Am. v. Caruso, 197 F.3d 1195,
1197 (7th Cir. 1999) (stating that arguments that are not presented in response to a motion for
summary judgment are waived).
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the ALJ provided no explanation of how he reached his conclusions on this important topic or
how he resolved the contrasting diagnoses.3 Without weighing any of the medical opinions, and
by failing to explain why Dr. Farhi's opinion was not entitled to controlling weight as the treating
physician, the ALJ did not adequately explain the basis for his decision or why he rejected or
adopted any of the varied medical conclusions in this case.4
It is an ALJ's right and obligation to decide which medical source to believe, Books v.
Chater, 91 F.3d 972, 979 (7th Cir. 1996), and the regulations provide a framework within which
the ALJ can undertake this task. Here, the ALJ's failure to do so makes it impossible to follow
the reasoning that supports his discussion and, in many respects, it leaves significant medical
issues in the same state of conflict they were when this case was remanded to the ALJ before.
The ALJ's failure to weigh any of the medical source opinions in this case means that substantial
evidence does not support his finding at step three that Plaintiff did not meet or medically equal

3

Similar inconsistencies on other issues could be cited. For instance, the ALJ
discounted Plaintiff's complaint of vertigo by stating that such a condition is usually
accompanied by nystagmus and nausea. In support, the ALJ relied on Dr. Manfredi's testimony
to conclude that the various medical experts in this case had only noted nystagmus. (R. 184-85.)
Dr. Farhi, however, stated three times that Plaintiff suffered both from vertigo and nausea. (R.
283, 297, 304.)
4

As part of what appears to be a negative evaluation of Dr. Farhi's opinion, the ALJ
noted that Plaintiff's ability to walk at the December, 2007 hearing was a "far cry" from
Dr. Farhi's assessment that she needed assistance in ambulating. (R. 189.) The ALJ's finding
overlooks that Dr. Farhi was only describing Plaintiff's ability to walk while she was having an
episode of Meniere's Disease, not her general ability to ambulate. No evidence suggests that she
was having such an attack at the 2007 hearing. The ALJ also found that Dr. Farhi's treatment
notes were internally inconsistent because they describe a long-standing level of dysfunction yet
state that she was doing "good." This fails to account for Dr. Farhi's response to an interrogatory
explaining that what he meant was that Plaintiff had few exacerbations, not that her condition
itself was acceptable. (R. 282-83.)

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a listed impairment. Thus, Plaintiff's motion is granted, and the Commissioner's motion is
denied, on this issue.

C.

The Credibility Issue

Plaintiff next argues that the ALJ erred in failing to credit her testimony concerning the
duration and intensity of her symptoms. The Court reviews an ALJ's credibility decision with
deference because "the ALJ is in the best position to determine the credibility of witnesses."
Craft, 539 F.3d at 678. An ALJ's credibility determination warrants reversal only if it is so
lacking in explanation or support that it is "patently wrong." Elder, 529 F.3d at 413-14. An ALJ
should consider the entire case record and give specific reasons for the weight given to an
individual's statements. SSR 96-7p. Factors that should be considered include the objective
medical evidence, the claimant's daily activities, allegations of pain, aggravating factors, types of
treatment received, medication taken, and functional limitations. Prochaska v. Barnhart, 454
F.3d 731, 738 (7th Cir. 2006). Common sense, rather than technical errors, should guide such an
analysis. See Alesia v. Astrue, — F. Supp.2d —, 2011 WL 2038765, at *11 (N.D. Ill. May 24,
2011) ("Rather than nitpicking for inconsistencies or contradictions, courts are to give a common
sense reading to an ALJ's opinion and reverse credibility determinations only if they are patently
wrong.") (internal quotes and citation omitted).
Plaintiff argues that the ALJ erred because he backed up his credibility finding by
concluding that, if Plaintiff's symptoms were as unpredictable as she stated, "her driving an
automobile at any time during the period at issue would be beyond reckless conduct." (R. 187.)
The Court agrees that this was an unpromising start to the credibility analysis, although

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Plaintiff's testimony that she could drive on some occasions was not irrelevant to her statements
concerning the severity of her symptoms. However, Plaintiff overlooks that the ALJ went on to
address a number of other factors in making his finding. The discussion is fragmented, but the
ALJ considered the effects of Plaintiff's medication, inconsistencies between her testimony on
her activities of daily living and other evidence in the record, and the degree to which her
statements were supported by the medical record. See SSR 96-7p (stating the factors an ALJ
should consider in assessing a claimant's credibility).
The last factor is required under SSR 96-7p, and the ALJ's discussion of it reveals
another result of his failure to weigh the opinions of the various medical experts. The ALJ
negatively evaluated Plaintiff's credibility, in part, based on the medical record but without
discussing or resolving inconsistencies in that body of evidence. As noted above, the ALJ found
that Plaintiff's complaints of vertigo were not corroborated by separate findings of nausea, even
though Dr. Farhi confirmed that she experienced nausea.5 The ALJ was also notably skeptical
about Plaintiff's claim that working with computer screens aggravated her dizziness, but he
ignored Dr. Miller's testimony at the first hearing that doing so could increase her symptoms.
(R. 42-43.) Moreover, the ALJ relied on Dr. Farhi's treatment notes that she was doing "good"
to discount her testimony, but he failed to balance this against Dr. Farhi's two RFC assessments
that provide significant support for Plaintiff's testimony. See Herron v. Shalala, 19 F.3d 329,

5

The ALJ criticized Dr. Farhi's notes to some degree by stating that the medical experts
"consistently have noted" that his treatment notes were not helpful. (R. 187.) In fact, only
Dr. McKenna made such a remark. Although Dr. Manfedi suggested that the notes did not state
the degree to which Plaintiff's condition had improved (R. 341), neither he nor the other
testifying experts criticized Dr. Farhi's treatment notes as the ALJ stated.
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333 (7th Cir. 1994) (stating that an ALJ cannot discuss only that evidence that supports his
ultimate conclusion).
Plaintiff contends that the ALJ compounded these errors by going beyond a proper
analysis of the evidence to make his own medical conclusions about her condition. Such
determinations are prohibited because it is well established that ALJs "must not succumb to the
temptation to play doctor and make their own independent medical findings." Clifford v. Apfel,
227 F.3d 863, 870 (7th Cir. 2000); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (citing
cases). While it is true that an ALJ has the ultimate responsibility for determining disability, this
obligation does not entitle him to reach medical conclusions on his own. See Williams v. Apfel,
48 F. Supp.2d 819, 825-26 (N.D. Ill. 1999). "The medical expertise of the Social Security
Administration is reflected in regulations; it is not the birthright of the lawyers who apply them."
Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990). An ALJ's substitution of his own
medical judgment, together with a disregard of relevant medical evidence, warrants reversal.
Dixon v. Massanari, 270 F.3d 1171, 1177 (7th Cir. 2001) (citing cases).
The Court agrees that the ALJ reached at least one such conclusion that was related to
Plaintiff's credibility. Plaintiff initially stated that her dizziness could be relieved to some degree
by sitting down. Dr. McKenna took strong exception to this testimony, testifying that sitting
down does not relieve vestibular issues and that Plaintiff's claim to the contrary suggested that
her symptoms were actually psychosomatic in nature – an issue that became a much-discussed
factor at the third hearing.6 (R. 382-84.) After Dr. McKenna testified, however, Plaintiff

6

A subsequent psychological examination apparently showed no basis for this
conclusion, although the report itself is not part of the record. (R. 189). Certainly, no objective
(continued...)
- 18 -

clarified that what she meant by her comment was that tilting her head back while in a seated
position, not the act of sitting itself, could relieve her symptoms. (R. 186, 385.) No medical
expert evaluated her follow-up explanation.
Notwithstanding the absence of further medical commentary on this issue, the ALJ
rejected Plaintiff's statement on the ground that "there is no medical basis for this behavior
alleviating this complaint." (R. 186.) The ALJ had no expertise to conclude on his own that an
inner ear problem cannot be alleviated by tilting the head backwards while a person is sitting
down. By rejecting Plaintiff's statements concerning her symptoms based on own his own
judgment, therefore, the ALJ substituted his medical conclusion for that of a medical expert.7

6

(...continued)
medical evidence other than Dr. McKenna's testimony supports such a hypothesis. The ALJ's
reliance on Dr. McKenna's (unweighed) testimony is especially striking in light of the
subsequent report, which the ALJ incorrectly anticipated would be "critical." (R. 407.) Dr.
McKenna speculated at considerable length on Plaintiff's psychological condition, and even the
ALJ took it upon himself to advise Plaintiff that it was possible that her problems "can be all in
your head." (R. 382-84, 387.) The fact that the psychological report apparently failed to
substantiate Dr. McKenna's conjectures suggests that at least some parts of his testimony were
not entitled to great weight. See McMurtry v. Astrue, 749 F. Supp.2d 875, 888 (E.D. Wis. 2010)
(stating that medical opinions can be given controlling weight on some points but not on others).
Such a conclusion, of course, is for the ALJ to make.
7

Although not a medical conclusion itself, the ALJ also mischaracterized Dr. McKenna's
testimony concerning the use of a "table tilt" test. The ALJ was skeptical of Plaintiff's claim of
vertigo and found that no clinician had noted the nausea that often accompanies it, even though
Dr. Farhi did so on three occasions. (R. 283, 297, 304.) In his discussion of the issue, the ALJ
claimed that Dr. McKenna had testified that a table tilt test is used to distinguish dizziness from
true vertigo and noted that Plaintiff had never had such a test. (R. 186.) In fact, Dr. McKenna
stated only that a table tilt test was used on persons with low blood pressure "to see if they have
got this reflex hypotension, which does come out and occur at times and cause weakness or
dizziness." (R. 381.) Dr. McKenna made clear, however, that little or no evidence in the record
pertained to whether Plaintiff "actually has a component of orthostatic hypotension or not."
(R. 382.) The ALJ himself pointed to no record evidence suggesting that Plaintiff was
hypotensive.
- 19 -

See SSR 86-8 (stating that "presumptions, speculations, and suppositions should not be
substituted for evidence").
Beyond these issues, a more fundamental problem in the ALJ's credibility determination
exists here. As noted earlier, the Appeals Council remanded this case on two grounds. In
addition to resolving inconsistent medical conclusions, the Appeals Council instructed the ALJ
to remedy the prior ALJ's failure to provide a proper assessment of Plaintiff's credibility. The
second ALJ had found that the record did not fully substantiate Plaintiff's subjective complaints,
but he failed to determine if an underlying medically determinable physical or mental
impairment existed that could be expected to produce such symptoms. (R. 229.) Social Security
Ruling 96-7p states that this is the first finding an ALJ must make as part of the two-step test that
applies to the evaluation of a claimant's symptoms. It is only after an ALJ has made such a
finding that he moves to the second step of evaluating statements concerning the persistence and
intensity of symptoms and, if needed, then assesses a claimant's credibility in light of the factors
outlined in SSR 96-7p, such as activities of daily living, treatment procedures, and medication
history. Accordingly, the Appeals Council ordered the ALJ on remand to address this issue.
The ALJ's decision presents a less-than-clear response to the Appeals Council's mandate.
Unlike most cases of this type, the ALJ addressed the Plaintiff's credibility without first stating
that the kind of medically determinable impairment the Council described existed here. Such a
finding could be implied by the fact that he undertook a credibility analysis at all. See Parker v.
Astrue, 664 F. Supp.2d 544, 553 (D.S.C. 2009) (stating that the ALJ proceeds to the second step
"only after the threshold obligation has been met"). But the ALJ stated at the end of his decision
– and entirely separate from his credibility decision – that "I am not convinced that any

- 20 -

medically determinable impairment has been established that would result in the profound
symptom complex identified by the claimant." (R. 191.)
Assuming for the sake of argument that this was the ALJ's response to the Appeals
Council's order, the ALJ's conclusion runs afoul of significant medical evidence that Plaintiff had
impairments that created her symptoms. Dr. Syed determined that Plaintiff's Meniere's Disease
had been accompanied by "intractable symptoms" since 1999 (R. 311), and Dr. Miller and
Dr. Farhi also agreed that she had Meniere's. The ALJ's statement also directly contradicts
Dr. Leigh's testimony at the second hearing that chronic labyrinthitis was a "major impairment"
for Plaintiff that "led to all of the symptoms which the claimant alleges today of the dizziness
and problems with balance." (R. 340.) Dr. Leigh also concluded that Plaintiff's "other
impairments" included allergic rhinitis, irritable bowel syndrome, and benign essential tumor.
(R. 340.) It is undisputed that Plaintiff suffered from the last of these conditions and that she had
been treated for the tremors that resulted from it since 1995. (R. 154.) Without weighing the
various medical sources or providing an adequate discussion of the clear conflict between his
conclusion and the record, the ALJ had no reasoned basis for finding that no medically
determinable impairment existed that could have given rise to Plaintiff's various symptoms.8

8

Along these lines, the ALJ construed Dr. Manfredi's testimony to mean that "other
impairments (e.g., low blood pressure) might explain the claimant's symptoms that have been
associated with Meniere's Disease by her treating doctor." (R. 185.) The ALJ's precise meaning
in this language is not clear. Dr. Manfredi actually spoke only in the hypothetical, stating that "if
she suffered from low blood pressure there might be times when her blood pressure would drop
to where she would lose her ability to coordinate and to maintain a good balance." (R. 362)
(emphasis added). Insofar as the ALJ meant that Dr. Manfredi's statement, in fact, supported an
alternative explanation for Plaintiff's symptoms, his conclusion is unwarranted. Neither
Dr. Manfredi nor the ALJ pointed to any evidence showing that Plaintiff suffered from low
blood pressure.
- 21 -

It is well established that an ALJ "must articulate at some minimal level his analysis of
the evidence," Herron, 19 F.3d at 333, and he must "build a logical bridge between the evidence
and his conclusion." Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). The ALJ here did not
do so because he failed to resolve inconsistencies in the medical record before using certain parts
of that record to discount Plaintiff's statements. See Knight v. Chater, 55 F.3d 309, 314 (7th Cir.
1995); Harris v. Astrue, 646 F. Supp.2d 979, 999 (N.D. Ill. 2009). It is the ALJ's duty to state
the basis of his findings and to build logical transitions between them, and the Court cannot
substitute its own inferences and speculations for the ALJ's reasoning. Accordingly, the Court
finds that Plaintiff's motion is granted on the credibility issue, as well as on her claim that the
ALJ improperly made independent medical findings.

D.

The RFC Issue

Before an ALJ can proceed to step four, he must first determine a claimant's RFC.
Young, 362 F.3d at 1000; 20 C.F.R. §§ 404.1529, 404.1545. RFC is an assessment of a
claimant's ability to perform work-related duties on a continuing basis in spite of the limitations
posed by her impairments or combination of impairments. 20 C.F.R. § 404.1545(a)(1). In
making an RFC assessment, an ALJ must consider all of a claimant's medically determined
impairments, including those that were not found to be severe at step two. 20 C.F.R.
§ 404.1545(a)(2). Here, the ALJ determined that Plaintiff could perform sedentary work, which
involves lifting no more than ten pounds occasionally and carrying small objects. Some standing
and walking may also be required under this standard. 20 C.F.R. § 404.1567(a). In addition, the
ALJ placed a number of restrictions on Plaintiff's work abilities, including prohibitions on

- 22 -

climbing, more than occasional stooping, working at unprotected heights or around hazards,
operating vehicles, or understanding, remembering, or carrying out complex tasks on a sustained
basis.9 (R. 187.) Accordingly, his RFC analysis includes both exertional limitations concerning
Plaintiff's ability to sit, as well as non-exertional limitations. Social Security Ruling 83-10
defines the latter as limitations that affect the mind, such as restrictions on the ability to climb,
stoop, and concentrate, as well as environmental restrictions. SSR 83-10.
This case presents a puzzling situation. An RFC assessment measures "the extent to
which an individual's medically determinable impairment(s) . . . may cause physical or mental
limitations or restrictions" that affect the ability to work. SSR 96-8p. See also Craft, 539 F.3d at
676 ("When determining the RFC, the ALJ must consider all medically determinable
impairments, physical and mental, even those that are not considered 'severe.'"). By reaching an
RFC finding, the ALJ necessarily determined that Plaintiff had limitations that resulted from her
"impairment(s), and any related symptoms" that stemmed from those impairments, as such a
finding must always be reached before an RFC can be established. 20 C.F.R. § 404.1545(a)(1).
As discussed above, however, the ALJ found that Plaintiff did not have a medically determinable
impairment that could be expected to give rise to her symptoms.
Notwithstanding, Plaintiff argues that the ALJ's RFC assessment failed to undertake a
function-by-function discussion of her abilities to perform the tasks required by sedentary work.

9

Plaintiff contends that the ALJ's restrictions imply a finding of a mental impairment
that should have been addressed at step two. Pursuant to 20 C.F.R. § 404.1520a, a "special
technique" is required at step two to determine the severity of such an impairment. See Richards
v. Astrue, 370 Fed.Appx. 727, 730 (7th Cir. 2010) (unpublished opinion). As discussed above,
however, it is not clear what impairments, physical or mental, the ALJ actually found in this
case. As Plaintiff does not discuss how the non-exertional restrictions here relate to a mental
impairment, the Court does not address this issue.
- 23 -

Contrary to this claim, however, an ALJ is not required to perform such an analysis. Knox v.
Astrue, 327 Fed.Appx. 652, 657 (7th Cir. 2009) (unpublished opinion) ("[T]he expression of a
claimant's RFC need not be articulated function-by-function[;] a narrative discussion of a
claimant's symptoms and medical source opinions is sufficient"); Strocchia v. Astrue,
No. 08 C 2017, 2009 WL 2992549, at *20 (N.D. Ill. Sept. 16, 2009).
Nevertheless, the requirement that an ALJ adequately discuss the medical opinions in
support of his RFC finding is not met in this case. Plaintiff correctly notes that the ALJ stated
that he found the testimony of the experts at all three hearings to be helpful in understanding
Plaintiff's complaints. His failure to weigh them, however, makes it impossible to follow the
logic of his reasoning or to determine what evidence he relied on to support the RFC
determination itself. Neither Dr. McKenna nor Dr. Manfredi gave any opinion at the third
hearing as to Plaintiff's exertional or non-exertional limitations, and no expert at any of the three
hearings testified on Plaintiff's cognitive restrictions. Dr. Leigh stated at the second hearing that
she had no exertional limitations but did impose some non-exertional restrictions. (R. 341.)
Dr. Miller testified at the first hearing that she could perform light, sedentary work. (R. 42-43.)
The ALJ discussed none of these RFC findings at all, and "[n]either the Commissioner nor the
court may supply reasons for the ALJ." Baker ex rel. Baker v. Barnhart, 410 F. Supp.2d 757,
766 (E.D.Wis. 2005). The result is especially troubling in that the ALJ did not place any
restrictions on Plaintiff's need to read or to use computers as part of her work, even though
Dr. Miller specifically testified that both activities would aggravate her symptoms and restricted
her from doing so. (R. 43.)

- 24 -

Plaintiff further argues that the ALJ improperly failed to discuss how she would be able
to carry out the work duties implied by the ALJ's RFC determination on a sustained basis. Such
findings are required as part of a RFC assessment. Social Security Ruling 96-8p's "Narrative
Discussion Requirement" lays out topics on which an ALJ must provide some discussion and
"explain how any material inconsistencies or ambiguities in the evidence in the case record were
considered and resolved." SSR 96-8p. These include "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)" as well as a description of how
the evidence supports each of an ALJ's RFC conclusions. SSR 96-8p. An ALJ's failure to
explain how he arrived at his exertional conclusions under SSR 96-8p is "in itself sufficient to
warrant reversal of the ALJ's decision" when it omits crucial medical facts. Briscoe ex rel.
Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005).
Here, the ALJ elicited testimony on this topic from Dr. McKenna by citing Dr. Farhi's
opinion concerning the frequency and extent of Plaintiff's vestibular attacks. In his two
Meneiere's Disease RFC assessments, Dr. Farhi stated that Plaintiff had two to three vestibular
problems each month and that each episode could last up to five days. (R. 298, 305.) The ALJ
asked Dr. McKenna if Plaintiff could maintain an eight-hour work day while experiencing
symptoms, to which Dr. McKenna responded, "absolutely not." (R. 394.) Despite this testimony,
the ALJ did not discuss why Plaintiff would be able to work a normal work schedule five days a
week, as required by SSR 96-8p. By failing to provide any discussion as to why Dr. Farhi's
opinion was not entitled to controlling weight, he also failed to build a logical bridge between

- 25 -

the evidence he relied on to question Dr. McKenna and his implicit conclusions on Plaintiff's
ability to work on a sustained basis.
For these reasons, the Plaintiff's motion is granted, and the Commissioner's motion is
denied, on this issue.

E.

The Step Five Issue

Finally, Plaintiff argues that the ALJ erred at step five by failing to resolve an
inconsistency between the testimony of the various vocational experts who appeared at the three
hearings. The VE who appeared at the first hearing stated that jobs existed in the national
economy that Plaintiff could perform. Based on Dr. McKenna's testimony that Plaintiff would
not be able to work while experiencing vestibular symptoms, the VE at the third hearing came to
the opposite conclusion and stated that Plaintiff could not sustain any employment. (R. 406.)
The ALJ dismissed the last VE's statement in summary form by concluding, as discussed earlier,
that no medically determinable impairment existed that could reasonably be expected to create
Plaintiff's symptoms. (R. 191.) As this conclusion is not supported by substantial evidence,
however, the ALJ was not entitled to rely on it to disregard the third VE's statements.
Nevertheless, the Commissioner argues that the ALJ's finding at step five was still proper
on another ground – Plaintiff's testimony concerning the number of days she would need to be
absent from work. According to the Commissioner, the ALJ properly evaluated Plaintiff's
statements on this issue. This argument overlooks that Plaintiff did not testify on this issue.
Instead, the ALJ's question to the VE was based on Dr. McKenna's testimony, which in turn
responded to statements made in Dr. Farhi's RFC assessment on the frequency and duration of

- 26 -

Plaintiff's vestibular attacks. Without any assessment of Dr. Farhi's or Dr. McKenna's
statements, however, the ALJ had no reasoned ground for disregarding Dr. Farhi's opinion on
this critical issue or for setting aside Dr. McKenna's testimony based on it. As a result, the ALJ
had no basis for adopting the opinion of the first VE or for rejecting the third VE's testimony that
Plaintiff could not perform any work in the national economy.10 Thus, Plaintiff's motion is
granted, and the Commissioner's motion is denied, on this point.

V.

Conclusion

For the reasons stated above, Plaintiff's Motion for Summary Judgment [Dckt. 29] and
the Commissioner's motion for summary judgment [Dckt. 39] are both granted in part and denied
in part. Accordingly, the ALJ's decision is reversed, and the case is remanded to the
Commissioner for further proceedings consistent with this opinion.
ENTER ORDER:

Dated: August 8, 2011.

__________________________________________
MARTIN C. ASHMAN
United States Magistrate Judge

10

Plaintiff also claims the ALJ should not have accepted the job numbers provided by
the VE at the first hearing because she was unrepresented at that point and that the ALJ
prevented her counsel at the third hearing from inquiring into this matter. In light of the Court's
ruling on the step five issue, it does not address this issue. The Court notes, however, that "the
data and reasoning underlying [a VE's] bottom line must be 'available on demand' if the claimant
challenges the foundation of the vocational expert's opinions." McKinnie v. Barnhart,
368 F.3d 907, 911 (7th Cir. 2004) (quoting Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir.
2002)). In light of the Commissioner's continued errors in this case, the Court assumes that
Plaintiff's counsel will have a full opportunity on remand to explore these issues in compliance
with McKinnie if the ALJ determines that VE testimony is required.
- 27 -