Talmo v. Astrue

Filing 35

AMENDED MEMORANDUM Opinion and Order Signed by the Honorable Robert M. Dow, Jr on 5/30/2012. Mailed notice(tbk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANTHONY J. TALMO

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
of the Social Security Administration,
Defendant.

CASE NO. 09 C 7112
Judge Robert M. Dow, Jr.

AMENDED MEMORANDUM OPINION AND ORDER
This matter is before the Court on a motion for summary reversal [11], filed by Plaintiff
Anthony J. Talmo, seeking judicial review of a decision of Defendant Michael J. Astrue,
Commissioner of the Social Security Administration, denying Talmo’s application for disability
insurance benefits (“DIB”) and supplemental security income (“SSI”). Plaintiff asks the Court to
reverse the decision of the Administrative Law Judge denying him benefits or, alternatively,
remand for further proceedings. Defendant filed a memorandum in support of the
Commissioner’s decision [31]. For the following reasons, the Court remands this matter for
further proceedings consistent with this opinion.
I.

Procedural Background
On March 9, 2007, Plaintiff applied for a period of disability, disability insurance

benefits, and supplemental security income alleging an onset date of January 20, 2005. See
Administrative Record at 387-93, 394-99. 1 Plaintiff’s applications were denied initially and
upon reconsideration, and a request for hearing was timely filed. On April 13, 2009, Plaintiff

1

Unless otherwise indicated, all references in Sections I and II refer to the administrative record in this matter. 

1

appeared and testified at a hearing before an Administrative Law Judge (“ALJ”). R. at 370-84.
In a decision dated May 14, 2009, the ALJ entered a partially favorable decision, which included
the following findings:
1. The claimant met the insured status requirements of the Social Security Act on January
20, 2005, the alleged onset of disability, and has not subsequently engaged in substantial
gainful activity (20 CFR 404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.).
2. The claimant has a severe spinal impairment, along with hypertension and obesity (20
CFR 404.1520(c) and 416.920(c)).
3. From January 20, 2005 through May 26, 2006, the claimant’s spinal impairment met the
criteria of section 1.04 of 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d)
and 416.920(d)).
4. The claimant was under a disability, as defined by the Social Security Act, from January
20, 2005 through May 26, 2006 (20 CFR 404.1520(d) and 416.920(d)).
5. Medical improvement occurred as of May 27, 2006 (20 CFR 404.1594(b)(1) and
416.994(b)(1)(i)).
6. Since May 27, 2006, the claimant has not had an impairment or combination of
impairments that meet or medically equals an impairment listed in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1594(f)(2) and 416.994(b)(5)(i).
7. As of May 27, 2006, the claimant had experienced medical improvement related to the
ability to work because he no longer has an impairment or combination of impairments
that

meets

or

medically

equals

a

416.994(b)(2)(iv)(A)).

2

listing

(20

CFR

404.1594(c)(3)(i)

and

8. Since May 27, 2006, the claimant has the residual functional capacity to perform
sedentary work, as defined in 20 CFR 404.1567(a) and 416.967(a).
9. Through May 27, 2006, the claimant remained incapable of performing past relevant
work (20 CFR 404.1565 and 416.965).
10. The claimant, born on December 22, 1981, is defined as a younger individual at all times
relevant (20 CFR 404.1563 and 416.963).
11. The claimant has at least a high school education (20 CFR 404.1564 and 416.964).
12. Transferability of job skills is not material to the determination of disability because
using the Medical-Vocational Rules as a framework supports a finding that the claimant
is “not disabled,” whether or not he has transferable job skills (See SSR 82-41 and 20
CFR Part 404, Subpart P, Appendix 2).
13. Since May 27, 2006, considering the claimant’s age, education, work experience, and
residual functional capacity, he has been able to perform a significant number of jobs in
the national economy (20 CFR 404.1560(c), 404.1566, 416.960(c), and 416.966).
14. The claimant’s disability ended on May 27, 2006 (20 CFR 404.1594(f)(8) and
416.994(b)(5)(vii)).
R. at 341-53.
Plaintiff sought review of the ALJ’s decision and the Appeals Council denied his request,
leaving the ALJ’s decision the final decision of the Commissioner. R. at 1-5. Plaintiff now
seeks judicial review of the final decision of the Commissioner of Social Security. This Court
has jurisdiction pursuant to 42 U.S.C. § 405(g).

3

II.

Facts
A.

Background

Plaintiff, born on December 22, 1981, was twenty-two years old at the time he applied for
DIB and SSI. R. at 387. Plaintiff reported a tenth-grade education. R. at 421. He has worked
cleaning floors, stocking shelves, receiving merchandise, doing roofing installment and shippingreceiving for a printing company. R. at 416-17, 424.
B.

Medical Evidence

On January 20, 2005, Plaintiff suffered a back injury while at work at a printing
company. R. at 315-16. Five days later, Plaintiff had an MRI of his lumbar spine, which
revealed herniation of the L4-L5 disc to the right side and herniation of the L5-S1 disc to the left
side. R. at 493. In August 2005, Plaintiff underwent another MRI that revealed minimal
indentation upon the thecal sac on the right at L1-L2 and L2-L3 possibly due to minimal bulging.
R. at 489. Additionally, at L3-L4 the MRI showed a diffuse disc bulge along with a new central
tiny disc herniation. R. at 490. This did not result in any spinal stenosis and no definite neural
foraminal narrowing was appreciated. R. at 490. At L4-L5, there was a right-sided herniation
effacing the right L5 nerve root and L5-S1 as well as a left-sided disc herniation compressing the
left S1 nerve root. R. at 490.
On September 13, 2005, Dr. Craig Popp at Delnor-Community Hospital performed a
microscopic lumbar discectomy at L5-S1 left and L4-S right. R. at 573. A subsequent MRI
revealed a small amount of disc material in the right paracentral region, which may cause
minimal mass effect in the region of the right lateral recess. R. at 600. In October 2005,
Plaintiff stated that the pain in this right leg was worse than before the surgery, which Dr. Popp
attributed to a large osteophyte that was taken down posteriorly on the right side. R. at 597. Dr.

4

Popp noted that his left side was significantly better. Id. His treatment included physical therapy
sessions that were terminated in November 2005, prior to completion. R. at 503.
In December 2005, Dr. Popp performed a lumbar myelogram with CT of the lumbar
spine & 3-D image reconstruction. R. at 571. This revealed bulging discs and spurs at L4-L5
and L5-S1. There was no central spinal stenosis or focal foraminal stenosis, but there was
compression on the descending portion of the right L5 nerve root and left S1 nerve root. R. at
572. Plaintiff continued to complain of back pain through March 2006. R. at 588. He was
diagnosed with post laminectomy syndrome. Id. His treatment included a revert loading lumbar
spine brace. Id.
In April 2006, Plaintiff was still complaining of pain, primarily in his back, and Dr. Popp
indicated that a Functional Capacity Evaluation (“FCE”) would be helpful. R. at 587. The FCE
was conducted on April 12 and 14, 2006 by Stacey Bennett, a physical therapist. R. at 633.
Bennett concluded that Plaintiff’s lifting ability was in the sedentary to light physical demand
level and that Plaintiff was generally deconditioned with limited endurance. R. at 632. Bennett
also noted that Plaintiff had a decreased tolerance for static sitting and standing. Id. She
identified his static sitting and standing tolerance as 6-33% of an eight-hour workday each, and
that he could walk for 6-33% of an eight-hour workday. R. at 636. Bennett recommended a
work conditioning program. R. at 633.
Dr. Popp examined Plaintiff after his FCE. R. at 586. Plaintiff remained unchanged
regarding reflexes. Id. Bilateral Achilles, wrist extension, plantar flexion and EHL were all 2+
which is normal. Dr. Popp noted that the FCE showed Plaintiff to be capable of a light sedentary
job and recommended work hardening, which Dr. Popp thought would be helpful. Id.

5

During an evaluation of Plaintiff on May 26, 2007, Dr. Popp noted that a sedentary job
with vocational rehabilitation and pain management would be beneficial to Plaintiff. R. at 584.
Additionally, Dr. Popp stated that he felt Plaintiff had reached Maximum Medical Improvement
(“MMI”) and that any type of surgical intervention would not be beneficial. R. at 584. Dr. Popp
reported that Plaintiff could perform a sedentary job as defined by the U.S. Department of Labor.
R. at 615.
One year later, in May 2007, Dr. Roopa K. Karri performed a consultative examination of
Plaintiff. R. at 749-53. Plaintiff stated that he had a history of low back pain, hypertension,
headaches, drowsiness, right eye near total blindness, depression and anxiety.

R. at 750.

Plaintiff stated that medication and physical therapy did not help with the pain in his back which
continued to radiate to his left buttock and both legs. Id. He stated the pain is aggravated with
activity. Id. Dr. Karri performed a musculoskeletal examination, which revealed that Plaintiff
was able to get on and off the exam table. R. at 751. He could not walk fifty feet without
support. Id. Plaintiff walked with a cane and could not heel/toe walk or squat. R. at 752.
Plaintiff’s grip strength was normal and he could make fists and oppose fingers. Id. He had
normal range of motion in his shoulders, elbows, wrists, hips, knees, ankles, and cervical spine.
Id. His range of motion in the lumbar spine was limited. Id. Dr. Karri concluded that Plaintiff
had a history of low back pain with markedly decreased range of motion and required a cane to
walk. Id. Additionally, he had right eye blindness secondary to a prior injury, a history of
depression and anxiety which was improved with Paroxetine, a history of hypertension which
was improved with medication and morbid obesity. Id.
On September 24, 2007, Dr. Richard Bilinsky, pursuant to an Illinois Request of Medical
Advice, submitted that he reviewed all of the evidence in the record and affirmed the RFC dated

6

June 13, 2007 as written. R. at 777-79. Additionally, Terry McConnell, Disability Examiner,
recited medical information from the June 13, 2007 RFC assessment. R. at 448. McConnell
concluded that given the medical records, sedentary work must be considered. R. at 448.
C.

The Hearing on April 13, 2009

At the time of the hearing on April 13, 2009, Plaintiff was twenty-seven years old. R. at
314. Plaintiff testified that he was still having a lot of back discomfort and that the physical
therapy and work hardening did not help. R. at 319. He also stated that he always feels pain in
both of his legs. Id. Plaintiff testified that he had trouble standing in the shower after five to ten
minutes. He drives a car and goes alone to the store about one time per month. R. at 321. At
home, he watches his son and sits on the couch. R. at 323. He testified that he can comfortably
lift five pounds and can walk approximately 50 to 100 feet. Id. He stated he could walk a flight
of about five steps but chooses elevators and has pain when sitting for a long time. Id. At the
time of the hearing, Plaintiff was taking Paxil for anxiety and depression and Diovan for high
blood pressure. R. at 322. He testified that overall he feels as though things are getting worse.
R. at 323.
The ALJ found that Plaintiff is capable of making a successful adjustment to other work
that exists in significant numbers in the national economy. During the hearing, the ALJ posed a
series of hypothetical questions to a vocational expert (“VE”), Thomas Gustloff. First, the ALJ
asked the VE to consider an individual with the same work experience, age, and education level
as Plaintiff. R. at 329-30. This hypothetical individual had blurriness in his right eye and was
limited to light and sedentary work. R. at 330. He was also subject to postural limitations
against climbing ladders, ropes, or scaffold, or more than occasional balancing, kneeling,
stooping, crouching, crawling, and climbing of ramps and stairs. Id. The VE testified that this

7

hypothetical individual could perform work as a stock clerk, where there are 54,210 positions
available in the Chicago Metropolitan area, or as an expediting clerk, where there are 8,030
positions available in the Chicago Metropolitan area. R. at 330-31.
Next, the ALJ added the limitation that the hypothetical individual needed to be able to
alternate sitting and standing periodically and should not be required to stand for more than
twenty minutes or to sit for more than forty minutes at a time. R. at 331. The VE testified that
this additional restriction required a sedentary job compared to the light level positions
previously identified. R. at 331. The VE noted that the Plaintiff would be limited to sedentary
and unskilled positions. Id.

To this hypothetical, the VE testified that this person would be

capable of performing work as (1) a production work, where there are 20,830 general production
work positions available, (2) a final assembler, where there are 11,880 positions available, or (3)
an electronic assembler, where there are 6,150 positions available. R. at 331-32. All positions
that the VE testified to are in the Chicago Metropolitan area. R. at 332.
III.

Standard of Review
The Social Security Act authorizes judicial review of the final decision of the agency and

indicates that the Commissioner’s factual findings must be accepted as conclusive if supported
by substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ will
reverse only if the findings are not supported by substantial evidence or if the ALJ has applied an
erroneous legal standard.

See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005).

Substantial evidence consists of “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Schmidt v.
Barnhart, 395 F.3d 737, 744 (7th Cir. 2005) (quoting Gudgel v. Barnhart, 345 F.3d 467, 470
(7th Cir. 2003)).

8

A court reviews the entire administrative record but does not reconsider facts, re-weigh
the evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its
judgment for that of the ALJ. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford
v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999).
Thus, the question upon judicial review of an ALJ’s finding that a claimant is not disabled within
the meaning of the Social Security Act is not whether the claimant is, in fact, disabled, but
whether the ALJ’s findings are supported by substantial evidence and were made under the
correct legal standard. See Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003); Schmidt v.
Apfel, 201 F.3d 970, 972 (7th Cir. 2000). If an error of law is committed by the Commissioner,
then the “court must reverse the decision regardless of the volume of evidence supporting the
factual findings.” Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997).
An ALJ must articulate, at a minimum, his analysis of the evidence in order to allow the
reviewing court to trace the path of her reasoning and to be assured that the ALJ considered the
important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Diaz v. Chater, 55
F.3d 300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). The ALJ is not
required to address “every piece of evidence or testimony in the record, [but] the ALJ’s analysis
must provide some glimpse into the reasoning behind [the] decision to deny benefits.” Zurawski
v. Halter, 245 F.3d 881, 888 (7th Cir. 2001). The ALJ must build an “accurate and logical
bridge from the evidence to his conclusion so that, as a reviewing court, we may assess the
validity of the agency’s ultimate findings and afford a claimant meaningful judicial review.”
Young v. Barnhart, 362 F.3d 995, 1002 (7th Cir. 2004) (quoting Scott, 297 F.3d at 595); see also
Hickman v. Apfel, 187 F.3d 683, 689 (7th Cir. 1999) (citing Sarchet v. Chater, 78 F.3d 305, 307
(7th Cir. 1996)).

9

IV.

Disability Standard
To be eligible for disability benefits, a claimant must establish that he suffers from a

“disability” as defined by the Social Security Act and regulations. The Act defines “disability”
as an inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to result in death or that has
lasted or can be expected to last for a continuous period of not less than twelve months. 42
U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). To be found disabled, the claimant’s impairment must
not only prevent him from doing his previous work, but considering his age, education, and work
experience, it must also prevent him from engaging in any other type of substantial gainful
activity that exists in significant numbers in the economy.

42 U.S.C. §§ 423(d)(2)(A),

1382c(a)(3)(B); 20 C.F.R. §§ 404.1520(e)-(f), 416.920(e)-(f).
When a claimant alleges a disability, Social Security regulations provide a five-step
inquiry to evaluate whether the claimant is entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The steps are: (1) Is the claimant engaged in substantial gainful activity? If yes,
the claimant is not disabled, and the claim is denied; if no, the inquiry proceeds to Step 2; (2)
Does the claimant have an impairment or combination of impairments that are severe? If not, the
claimant is not disabled, and the claim is denied; if so, the inquiry proceeds to Step 3; (3) Does
the impairment(s) meet or equal a listed impairment in the appendix to the regulations? If yes,
the claimant is automatically considered disabled; if no, then the inquiry proceeds to Step 4; (4)
Can the claimant do the claimant’s past relevant work? If yes, the claimant is not disabled, and
the claim is denied; if no, then the inquiry proceeds to Step 5; (5) Can the claimant perform other
work given the claimant’s residual functional capacity (“RFC”), age, education, and experience?
If yes, then the claimant is not disabled, and the claim is denied; if no, the claimant is disabled.

10

20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); see also Scheck v. Barnhart, 357 F.3d
697, 699-700 (7th Cir. 2004).
At the fourth and fifth steps, the ALJ must consider an assessment of the claimant’s
residual functional capacity (“RFC”). “The RFC is an assessment of what work-related activities
the claimant can perform despite [his] limitations.” Young, 362 F.3d at 1000. The ALJ must
assess the RFC based on all the relevant evidence of record. Id. at 1001 (citing 20 C.F.R.
§ 404.1545(a)(1)). The claimant bears the burden of proving steps one through four, whereas the
burden at step five is on the ALJ. Id. at 1000; see also Zurawski, 245 F.3d at 886; Knight v.
Chater, 55 F.3d 309, 313 (7th Cir. 1995).
V.

Analysis
Plaintiff argues that the ALJ committed reversible error by: (1) finding that Plaintiff was

not credible as to his statements regarding the intensity, persistence and limiting effects of his
symptoms after May 27, 2006; and (2) determining that the Plaintiff’s disability ended on May
27, 2006.
A.

Credibility Determination

Plaintiff argues that the ALJ erred in determining that Plaintiff’s statements regarding his
pain and other symptoms after May 27, 2006 were not credible. The Commissioner claims, on
the other hand, that the ALJ properly considered the evidence to reach a credibility finding and
adequately articulated the reasons behind his determinations. The Court agrees with Plaintiff.
The Social Security Regulations provide that in making a disability determination the
Commissioner will consider a claimant’s statements about his or her symptoms, including pain,
and how they affect the claimant’s daily life and ability to work. See 20 C.F.R. § 404.1529(a).
However, subjective allegations of disabling symptoms alone cannot support a finding of

11

disability. See id. The Regulations establish a two-part test for determining whether complaints
of pain contribute to a finding of disability: (1) the claimant must provide objective medical
evidence of a medically determinable impairment or combination of impairments that reasonably
could be expected to produce the symptoms alleged; and (2) once an ALJ has found an
impairment that reasonably could cause the symptoms alleged, the ALJ must consider the
intensity and persistence of these symptoms. 20 C.F.R. § 404.1529(a).
The ALJ must weigh the claimant’s subjective complaints, the relevant objective medical
evidence, and any other evidence of the following factors:
(1)
(2)
(3)
(4)
(5)
(6)
(7)

The individual’s daily activities;
Location, duration, frequency, and intensity of pain or other symptoms;
Precipitating and aggravating factors;
Type, dosage, effectiveness, and side effects of any medication;
Treatment, other than medication, for relief of pain or other symptoms;
Other measures taken to relieve pain or other symptoms;
Other factors concerning functional limitations due to pain or other symptoms.

20 C.F.R. § 404.1529(c)(3). In making a credibility determination, Social Security Ruling 96-7p
states that the ALJ must consider the record as a whole, including objective medical evidence,
the claimant’s statements about symptoms, any statements or other information provided by
treating or examining physicians and other persons about the conditions and how they affect the
claimant, and any other relevant evidence. See SSR 96-7p, 1996 WL 374186 (Jul. 2, 1996).
The Seventh Circuit has maintained a highly deferential standard of review regarding an
ALJ’s credibility determination, requiring that they not be overturned unless the claimant can show
that the finding is “patently wrong.” Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006).
An ALJ is not required to give full credit to every statement of pain made by the claimant or to
find a disability each time a claimant states that he or she is unable to work. See Rucker v. Chater,
92 F.3d 492, 496 (7th Cir. 1996). However, the determination of credibility finding “must contain

12

specific reasons for the finding on credibility, supported by evidence in the case record and must
be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight
the adjudicator gave to the individual’s statements and reasons for that weight.” SSR 96-7p; see
also Arnold v. Barnhart, 473 F.3d 816, 822 (7th Cir. 2007); Steele v. Barnhart, 290 F.3d 936, 942
(7th Cir. 2002). The finding must be supported by the evidence and must be specific enough to
enable the claimant and a reviewing body to understand the reasoning. Arnold, 473 F.3d at 822.
Here, the ALJ’s statement regarding Plaintiff’s credibility is as follows:
“After considering the evidence of record, I find that the claimant’s medically
determinable impairments could reasonably be expected to produce the alleged
symptoms; however, his statements concerning the intensity, persistence and
limiting effects of the symptoms are not credible beginning on May 27, 2006, to
the extent they are inconsistent with the above residual functional capacity
assessment, when compared against the objective evidence and evaluated using
factors in SSR 96-7p, in view of, especially, his non-pursuit of treatment and
noncompliance with medications.”
R. at 351.
This credibility determination is at best a “boilerplate recital,” which Seventh Circuit has
made clear is not enough to fulfill SSR 96-7p. See McClesky v. Astrue, 606 F.3d 351, 352 (7th
Cir. 2010) (finding that a credibility determination that stated “based on the evidence, the
claimant’s medically determinable impairments could reasonably be expected to produce the
alleged symptoms, but he claimant’s statements concerning the intensity, persistence, and liming
effects of these symptoms are not entirely credible” followed by a dissection of the claimants
testimony is reversible error). Here, the ALJ did even less than in McClesky, failing to address in
any meaningful way through the testimony he found not credible. Id.
The only facts the ALJ cites to in the credibility determination are (1) Talmo’s non-pursuit
of treatment and (2) his noncompliance with medications. While the assessment provides no
further explanation on these two issues, in a prior section of the ALJ’s decision he does mention

13

the lack of evidence in the record of medical treatment after July 24, 2007, and two DSS
assessments that noted that the Plaintiff was not compliant with his medication. R. at 350-51.
But the Seventh Circuit has made clear that while infrequent treatment or failure to follow a
treatment plan can support an adverse credibility finding, the ALJ “must not draw any inferences”
about a claimant’s condition from this failure without exploring the claimant’s reasons. SSR 967p; see also Craft v. Astrue, 539 F.3d 668, 679 (7th Cir. 2008); McClesky v. Astrue, 606 F.3d 351,
352 (2010) (noting the ALJ erred in basing an adverse credibility finding on Plaintiff’s refusal to
take certain drugs because the ALJ failed to consider they were “powerful and expensive drugs
that many people are reluctant to take”); Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004)
(“Although the ALJ need not discuss every piece of evidence in the record, he must confront the
evidence that does not support his conclusion and explain why it was rejected.”).
During the hearing, however, the ALJ did not question the Plaintiff about either his lack of
medical treatment or his noncompliance with medications noted in the record. Rather, in response
to questioning by Plaintiff’s own attorney, Plaintiff explained that he did not seek medical care
because his doctor said “there’s nothing else he can do” and Plaintiff did not want to continue
paying money “for something that they said they can’t fix.” R. at 325. The ALJ failed to consider
this explanation in his determination. See Neave v. Astrue, 507 F. Supp. 2d 948, 963 (E.D. Wis.
2007) (finding it problematic that the ALJ relied on plaintiff’s lack of treatment without
considering his explanation to justify it).
Regarding the non-compliance with medications, Plaintiff testified that he prefers not to
take Norco because it is an addictive painkiller and is “not something I want to take for the rest of
my life.” R. at 326.

Importantly, in his determination, the ALJ completely disregarded the

assertion that the pain drug that Talmo has opted not to take is a “powerful and expensive [drug]

14

that many people are reluctant to take or unable to afford.” Id.

Moreover, Talmo testified that he

does take over the counter medications for his pain, which the ALJ also ignored in his assessment.
R. at 326. See also McClesky, 606 F.3d at 352 (noting that the ALJ erred when he ignored the fact
that the claimant took over the counter pain medications like Advil and Tylenol, instead of the
prescription medication, which was a powerful and expensive drug). Ultimately, these omissions
are detrimental to the Court’s ability to assess the ALJ’s credibility determination.
In short, the ALJ’s boilerplate statement regarding credibility, amended by the note that his
finding is based in Plaintiff’s failure to seek medical treatment and non-compliance with treatment,
is not enough under SSR 96-7p and Seventh Circuit precedent and left Plaintiff without the
opportunity to explain himself. The ALJ’s failure to discuss these explanations in his decision or
further inquire with the Plaintiff regarding these issues amounts to a lack of sufficient reasoning
and is reversible error. See McClesky, 606 F.3d at 352; Windus v. Barnhart, 345 F. Supp. 2d 928,
946 (E.D. Wis. 2004).
B.

Existence of Disability after May 27, 2009

Plaintiff argues that the ALJ erred in determining that Plaintiff’s disability ended on May
27, 2006. Specifically, Plaintiff’s allegations amount to three arguments: (1) the ALJ improperly
gave Dr. Popp’s medical and vocational findings controlling weight and concluded those
findings were supported by substantial evidence; (2) the ALJ failed to make reference to a
specific impairment as required; and (3) the ALJ improperly relied on DDS evidence without
sufficient documentation in the record. Each allegation will be discussed in turn.
1. Reliance on Dr. Popp’s medical and vocational assessment
Contrary to Plaintiff’s claim, the ALJ properly relied on Dr. Popp’s statements that
Plaintiff had reached maximum medical improvement and was capable of sedentary work. As

15

Plaintiff’s treating physician, Dr. Popp’s opinion regarding the nature and severity of Plaintiff’s
injuries is entitled to controlling weight as long as it is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence.”

Larson v. Astrue, 615 F.3d 744, 749 (7th Cir. 2010) (quoting 20 C.F.R.

404.1527(d)(2)).

Dr. Popp’s conclusion that Plaintiff had reached maximum medical

improvement was support by Dr. Karri’s musculoskeletal examination in May 2007. This
examination reflected both Plaintiff’s medical successes and his continuing weaknesses. The
ALJ addresses both aspects in his decision, but ultimately concluded that the Dr. Karri’s
assessment supported Dr. Popp’s conclusion.
Additionally, the conclusion that Plaintiff was capable of sedentary work was supported
by Dr. Karri’s examination as well as McConnell’s review of the record. R. at 752. While, Dr.
Popp is not a vocational expert, his notation that Plaintiff is capable of sedentary work as defined
by the Department of Labor is relevant to the ALJ’s determination. See Ulloa v. Astrue, 611 F.
Supp. 2d 796, 808 (N.D. Ill. 2009) (relying on doctor’s findings that the plaintiff could perform
sedentary work).

Contrary to Plaintiff’s suggestion, this notation is not the only piece of

evidence reflecting Plaintiff’s ability to do sedentary work. Namely, the ALJ also relied on the
affirming hearing testimony of the VE. The testimony of the VE concluded that a hypothetical
individual with Plaintiff’s condition could perform sedentary work. This is evidence that the
Plaintiff’s argument ignores which supports the ALJ’s ultimate conclusion that Plaintiff’s
medical improvement is related to his ability to work. Therefore, the ALJ did not err in giving
the opinions of Dr. Popp controlling weight regarding Plaintiff’s medical improvement or
vocational abilities and in finding that Plaintiff’s medical improvement was related to his ability
to work.

16

2. Reference to specific impairment
Plaintiff argues that the ALJ erred in concluding that after May 26, 2007, Plaintiff did not
have an impairment or combination of impairments that meets or medically equals a listed
impairment without referencing any specific impairment. R. at 351. The listings describe
impairments that, as long as specific criteria are met, are deemed presumptively disabling. See
20 C.F.R. § 404.1525(a). It is the plaintiff’s burden to prove his condition meets or equals each
criteria in a listing impairment. Cruz v. Astrue, 746 F. Supp. 2d 978, 987 (2010). However, the
Seventh Circuit has stated that a failure to mention the specific listing coupled with a
“perfunctory analysis” could require a remand. Ribaudo v. Barnhart, 458 F.3d 580, 583-84 (7th
Cir. 2006).
As noted by the Commissioner, it is evident that in this case the ALJ is referencing the
same impairment that led to Plaintiff’s disability prior to May 26, 2007 and merely noting that
the prior impairment no longer exists. Therefore, the ALJ’s failure to mention the particular
listing a second time in the decision, specifically in reference to the period after May 27, 2006, is
harmless. Additionally, the ALJ’s analysis of why Plaintiff no longer meets the listing criteria
after May 27, 2006, although sparse, cannot be considered impermissibly perfunctory.

In

discussing Plaintiff’s terminated disabled status, the ALJ notes medical evidence from Plaintiff’s
treating physician, as well as findings from Plaintiff’s consultative examination, subsequent
medical treatments, and Plaintiff’s DDS assessments. Therefore, despite a lack of explanation of
how the ALJ weighed these factors, the Plaintiff’s argument that the ALJ’s determination was
not supported by substantial evidence fails.

17

3. Insufficient Documentation
Finally, the Court notes that the June 2007 RFC assessment, reviewed by Dr. Bilinsky
and McConnell and relied upon by the ALJ, is not included in the record. Plaintiff objects to the
incompleteness of the record as Plaintiff cannot respond to documents not of record. Because
the Court remands on other grounds, the Court orders that, on remand, the Commissioner locate
the report relied on by the ALJ and ensure that is included in the record.

See Smith v.

Commissioner of Social Security, 2010 WL 1838366, at *12 (N.D. Ind. May 6, 2010).
C.

Remedy

Plaintiff argues that reversal and an award of benefits is the proper remedy. In the
alternative, he asks that the matter be remanded for rehearing before a different ALJ. Ordinarily,
when an ALJ errs, the appropriate remedy is to remand for further proceedings. Windus, 354 F.
Supp. 2d. at 951. The Court will only award benefits if all “essential factual issues have been
resolved and the record overwhelmingly supports a finding of disability.” Id.
In this case, the proper remedy is remand. The record at this time does not
overwhelmingly support a finding of disability—the primary reason of reversal is the ALJ’s
failure to properly consider evidence and testimony, and failure to provide sufficient explanation
for his findings.

18

VI.

Conclusion
For the foregoing reasons, the Court grants Plaintiff’s motion for summary reversal [30]

and remands this matter to the Social Security Administration for further proceedings consistent
with this opinion.

Dated: May 30, 2012
______________________________
Robert M. Dow, Jr.
United States District Judge

19