Jefferson v. Astrue

Filing 26

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 4/21/2011. (gmr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

L.A. JEFFERSON,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Case No: 09 C 7536
Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER
The plaintiff, L.A. Jefferson, seeks review of the final decision of the
Commissioner (“Commissioner”) of the Social Security Administration (“Agency”)
denying his applications for Disability Insurance Benefits (“DIB”) under Title II of the
Social Security Act (“Act”), 42 U.S.C. §§ 423(d)(2), and Supplemental Security Income
(“SSI”) under Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). Mr. Jefferson asks the
court to reverse and remand the Commissioner’s decision, while the Commissioner seeks
an order affirming the decision.
I.
PROCEDURAL HISTORY
Mr. Jefferson has applied for disability benefits at least three times. The first time
was in 1994, but he abandoned his claim when it was finally denied in 1998.
(Administrative Record (“R.”) 111-13, 133).

His two more recent applications are

consolidated in this case. He applied for SSI in November 2003, alleging that he had
become disabled on September 30, 2003, due to carpal tunnel syndrome, asthma, and
difficulty with reading and math. (R. 87-89, 98). His application was denied initially

and upon reconsideration. (R. 73-86). Mr. Jefferson filed a timely request for hearing but
when he failed to appear, the administrative law judge (“ALJ”) dismissed his claim. (R.
46-48). The Appeals Council remanded the case because it appeared that Mr. Jefferson
had not received notice of the hearing, and the ALJ failed to contact him for an
explanation of his failure to appear. (R. 43-44).
On remand, that claim was consolidated with subsequent claims for SSI and DIB
that Mr. Jefferson filed in October 2006. (R. 25). An ALJ held a hearing on January 24,
2008, at which Mr. Jefferson, represented by counsel, appeared and testified. (R. 477528). In addition, Ed Pagello testified as a vocational expert. (R. 520-27). On February
11, 2008, the ALJ issued a decision finding that Mr. Jefferson was not disabled because
he retained the capacity to perform a limited range of light work, which allowed him to
do jobs that exist in significant numbers in the national economy. (R. 25-36). This
became the final decision of the Commissioner when the Appeals Council denied Mr.
Jefferson’ request for review of the decision on October 15, 2009. (R. 7-10). See 20
C.F.R. §§ 404.955; 404.981. Mr. Jefferson has appealed that decision to the federal
district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction
of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).
II.
EVIDENCE OF RECORD
A.
Vocational Evidence
Mr. Jefferson was born on September 6, 1953, making him fifty-four years old at
the time of the ALJ’s decision. (R. 87). He made it through the ninth grade, and had to

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take special education courses. (R. 490-91). At the time of his hearing, he had been
homeless, off and on, for a long time. (R. 493-94). He is 5'8" and 238 pounds. (R. 165).
His work history consisted mostly of day labor through temp agencies. The longest
position he held was as a meat deboner in a meat packing plant. (R. 493-94). He also
worked as a fast food cook. His past work was light to medium work and unskilled –
with the exception of the cook job, which was semiskilled. (R. 520). He worked
intermittently through 2006, and in 2005, earned enough to qualify as having performed
substantial gainful activity. (R. 293-94, 303-04, 510).
B.
Medical Evidence
Mr. Jefferson has a few different medical problems, including chronic obstructive
pulmonary disease (COPD), obstructive sleep apnea (OSA), bilateral carpal tunnel
syndrome (CTS), residual effects from an injury to his left knee, and psychological
limitations. The record includes notes from Mr. Jefferson’s visits to county hospital
emergency rooms for treatment, mostly for his breathing problems. Many of the notes
are illegible or fail to suggest how his ailments might affect his ability to work. But the
record does include some more informative documentation.
Mr. Jefferson had a consultative mental status examination with Roland Manos,
Ph.D., on December 3, 2003. Disabled or not, Mr. Jefferson probably wouldn’t fare well
at a job interview. During the evaluation, he chewed on a toothpick throughout the
evaluation and spit pieces of it on the psychologist’s carpet. (R. 158). He was irritable at
times. His hygiene was substandard, although he was not homeless at the time – he was
staying with a friend of his brother. (R. 158, 160). His effort during testing was below

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average. His responses to questions were vague and contradictory at times. (R. 159). He
didn’t do too well recalling items, digits, or past presidents. He couldn’t perform serial
three subtractions from one hundred.

He exhibited little ability to do any abstract

thinking. (R. 160). Testing put Mr. Jefferson in the mild range of mental retardation.
Results on the Wechsler Adult Intelligence Scale were 61 verbal IQ, 62 performance IQ,
and 58 full scale IQ. (R. 161-62). On the verbal scale, all his abilities were significantly
below average; they were below average on the performance scale.

There was a

significant impairment in his pychomotor speed, visual motor coordination, visual
processing, and verbal reasoning. But, it was noted that these results were likely an
under-representation of Mr. Jefferson’s actual abilities. In any event, Dr. Manos thought
his level of functioning and intelligence were in the borderline range. (R. 162). He
assigned Mr. Jefferson a GAF score of 60.1 He could understand and carry out simple
instructions, and appeared to be capable of responding appropriately to supervisors and
co-workers. (R. 163).
Mr. Jefferson had a consultative physical examination with Dr. Neil Johnson on
January 10, 2004. (R. 164). Although he said he had asthma since childhood, he was a
smoker for 25 years, and currently smoked five or six cigarettes daily. Breath sounds
were reduced but there was no wheezing. (R. 166). There were multiple scars on his left
knee – he suffered a chainsaw injury – and pain and crepitus on range of motion, which
was significantly limited.

Tinel’s sign was strongly positive bilaterally for irritated

1

The Global Assessment of Functioning (GAF) is a numeric scale (0 through 100) used by mental
health clinicians and physicians to subjectively rate the social, occupational, and psychological
functioning of adults. A GAF score of 51 - 60 denotes moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or
school function in g (e.g., few friends, conflicts with peers or co-workers).
http://en.wikipedia.org/wiki/Global_Assessment_of_Functioning.

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nerves. He exhibited manipulation problems: he couldn’t pick up a button or a coin, and
had trouble zipping a zipper. (R. 165). According to a dynamometer measurment, pinch
and grip strength was reduced. (R. 168). Dr. Johnson felt that Mr. Jefferson would be
unable to stand or walk for long periods, and would have significant problems with his
hands. (R. 166).
On February 20, 2004, Anthony Matkom, Ph.D., reviewed the record for the
Agency. He said there was insufficient evidence to perform a psychiatric review. (R.
177-190). Someone else – the name is illegible (R. 199) – reviewed the file from a
physical perspective on February 23, 2004. They thought Mr. Jefferson could lift 20
pounds, carry ten, and sit, stand, and walk for six hours out of every work day. (R. 192).
There were no postural, manipulative, or environmental limitations. (R. 194-196).
The next day, another Agency psychologist, Michael Mandli, reviewed the file.
Unlike his predecessor, he felt there was enough evidence to determine that, due to
mental retardation (R. 217), Mr. Jefferson was moderately limited in the areas of
understanding, remembering, and carrying out detailed instructions, accepting instruction
and criticism, responding appropriately to changes in a work setting, and setting realistic
goals and planning independently of others. (R. 232-33). He thought Mr. Jefferson was
capable of performing routine, unskilled work. (R. 234).
On August 4, 2004, Dr. Dan Muceno reviewed the file for the Agency and
reached nearly the same conclusions as his predecessor in terms of Mr. Jefferson’s
physical capacity. The only difference was that Dr. Muceno thought Mr. Jefferson was
limited in his ability to handle and finger objects (R. 239), and should avoid concentrated
exposure to fumes, odors, and dust. (R. 240).

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On February 10, 2007, Mr. Jefferson had another consultative physical
examination, this time with Dr. Afiz Taiwo. (R. 386). Mr. Jefferson’s weight was 241
pounds and his blood pressure was 148/90. He was short of breath while talking and
wheezed with exertion. (R. 388). There was a scar on each wrist from previous carpal
tunnel surgery. Mr. Jefferson’s grip strength was reduced to 3/5. His ability to grasp and
manipulate objects was abnormal. His ability to make fists and oppose finger was
“weak.” Tinel’s sign and Phalen sign were both positive for carpal tunnel syndrome.
Gait was non-antalgic when Mr. Jefferson walked fifty feet, but he was unable to heel/toe
walk. Range of motion in the knees was normal. Range of motion in the lumbar spine
was limited to 90 degrees due to obesity. (R. 388). A pulmonary function test revealed
moderate restrictions. (R. 389-392).
On February 28, 2007, Dr. Richard Bilinsky, a physician with the Agency, found
that Mr. Jefferson could lift up to twenty pounds, and carry ten. He could stand, walk, or
sit for six hours in a work day. There was no limitation on his ability to push and pull.
(R. 394). He could only occasionally climb ladders, scaffolds, or ropes. (R. 395). Mr.
Jefferson’s ability to reach and perform fine manipulations was unlimited; he could do
them constantly. His ability to perform gross manipulations was limited to “frequent.”
(R. 397). He had to avoid concentrated exposure to fumes and dust and hazards like
machinery and heights. (R. 397). Dr. Bilinsky’s findings were apparently based on Dr.
Taiwo’s consultative examination. (R. 400).
Mr. Jefferson sought treatment at Stroger Hospital emergency room in June 2007
for coughing and chest pain. He was unable to walk more than a few steps with out
shortness of breath.

He was hospitalized for three days, and treated with steroids,

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bronchodilators, and antibiotics. He was also placed on a CPAP, which alleviated his
sleep apnea. While he had the opportunity to arrange for a CPAP at Stroger, he indicated
he would follow up in Joliet. (R. 410-02). He was discharged with Albuterol, QVAR,
Prednisone, and Levaquin. (R. 402).
Dr. Sapkota, the physician who treated Mr. Jefferson at Stroger, filled out a
physical assessment form on June 4, 2007. He stated that Mr. Jefferson had chronic
obstructive pulmonary disease and severe obstructive sleep apnea. (R, 407-08). He felt
his ability to walk was reduced by more than 50%; his ability to sit, bend, stoop, climb,
push, and pull was reduced by up to 20%, and his ability to stand was normal. (R. 409).
He could lift no more than ten pounds at a time. (R. 409).
C.
Administrative Hearing Testimony
1.
Plaintiff’s Testimony
At the hearing, Mr. Jefferson testified that he was homeless, and sleeping outside
of a WalMart. (R. 487). He wasn’t allowed at the shelter because of the snoring from his
sleep apnea. (R. 487). He also got to spend seven days a month at a motel through
public aid. (R. 488). He said he quit school after ninth grade and didn’t seem sure
whether he ever got a GED. (R. 490). He was in “slow” classes while in school. (R.
490). He had been separated from his wife for ten years. (R. 492). His children were all
adults. (R. 492).
Mr. Jefferson discussed some of his day labor assignments. For many years, he
loaded trucks with boxes of meat. (R. 494). He was also a fast food cook. (R. 494). His

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last job was packing product in a box in 2005, when he earned $10,000. (R. 494-95). He
did some work for a temp agency in 2006, but had not worked at all the year prior to his
hearing. (R. 495). He said he couldn’t because ‘his breathing [was] destroyed.” (R.
496).
Mr. Jefferson explained that he had to use emergency rooms for medical care
because he had no insurance. (R. 497). Will County gave him his inhalers and Joliet
Township paid for his medicine. (R. 500). He got a sleep apnea machine – a CPAP –
from Will County. (R. 503). Mr. Jefferson said his medication made him light-headed
and he had a hard time walking. (R. 504). Sometimes he coughed so much he passed
out. (R. 512). This happened almost every day. (R. 513). But he still smoked about
two or three a day if he was able to borrow them. (R. 514). He said it relieved some of
the stress of his situation. (R. 514).
Mr. Jefferson related that he had carpal tunnel surgery on both wrists, but it had
gotten worse. (R. 506). He had been given pain medication for his hands, and doctors
told him they wanted to focus on his breathing problems first. (R. 508). His hands hurt
when he used them. At one of his more recent jobs, he wore three or four pairs of gloves
and said, because he was homeless, he had to endure the pain. (R. 510). He soaked his
hands in water at the end of the day. (R. 510). But he was finally told he couldn’t do it
any more. (R. 511). He was not allowed back unless a doctor cleared him . (R. 511).
Mr. Jefferson told the ALJ about his chainsaw accident in 2001, and how doctors
put 290 staples in his leg. (R. 515). He had pain there all the time, especially in bad
weather. (R. 515). Doctors gave him pain relievers for that as well. (R. 516). Mr.
Jefferson explained that his knee caused him sharp pain so that he had to sit down after a

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while, but then, when he used his hands, they would hurt, too. (R. 517). And at one of
his packing jobs, his employer told him his breathing and coughing problems were too
severe to allow him to keep working there. (R. 517-18). After a while, the temp agency
simply stopped calling him. (R. 517).
2.
Vocational Expert’s Testimony
Ed Pagello then testified as a vocational expert. He classified Mr. Jefferson’s past
work as ranging from light to medium and unskilled to semiskilled. (R. 520): The
semiskilled position was fast-food cook. (R. 520); the nursing home job was skilled,
sedentary work. (R. 47-48). The ALJ asked the VE to assume a person were limited to
light work, with no climbing of ladders, ropes, or scaffolds, occasional climbing of ramps
and stairs, occasional balancing, stooping, kneeling, crouching, and crawling, should
avoid unprotected heights and dangerous machinery, overexposure to cold temperatures,
and dust, and could do no more than frequent handling. The VE said the person could
perform Mr. Jefferson’s past work as a packer and a fast food cook, as well as a variety
of other jobs. (R. 521). These included usher (1600 positions in the region), information
clerk (4800), and host (7200). (R. 521). If the person were further limited to only
occasional handling and fingering, the person could perform the usher, clerk, and host
positions, which require being on your feet six hours of every work day. (R. 522-23).
They wouldn’t be able to work at manufacturing or clerking positions due to the handling
and fingering. (R. 522). If they were limited to sedentary work, there would be no jobs
they could perform. (R. 522). The VE later confirmed for Mr. Jefferson’s attorney that
these were unskilled positions. (R. 523).

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Mr. Jefferson’s attorney asked if a person that had difficulty accepting and
responding to instructions could perform those jobs; the VE indicated that would be a
problem if it happened three times. (R. 523). There would be no impact if a person
couldn’t respond to changes in a work setting because change would be minimal, at most,
in these positions. (R. 524). The ability to maintain concentration 84% of the time
would be required in all occupations. (R. 525).
D.
ALJ’s Decision
The ALJ found that Mr. Jefferson suffered from the following severe
impairments: COPD, obstructive sleep apnea, history of carpal tunnel syndrome, old left
knee injury and borderline intellectual functioning. (R. 28). She reviewed the medical
evidence concerning these impairments, and determined that Mr. Jefferson did not have
an impairment or combination of impairments that met or equaled a listed impairment.
(R. 30). She specifically considered pulmonary functioning under listings 3.02 and 3.03,
and mental retardation under listing 12.05. (R. 30-31).
Next, the ALJ determined that Mr. Jefferson could perform light work as long as
it was “simple, repetitive, and therefore unskilled,” and required no more than occasional
climbing of ramps and stairs – but no climbing of ropes, ladders, or scaffolds – and no
more than occasional balancing, stooping, kneeling, and crawling. Mr. Jefferson had to
avoid concentrated exposure to moving machinery, heights, extreme temperatures, and
pulmonary irritants. He could frequently handle and finger objects. (R. 32).

Under the

regulations, “[l]ight work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted

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may be very little, a job is in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some pushing and pulling of
arm or leg controls.” 20 C.F.R. §§ 404.1567(b); 416.967(b). The ALJ found that Mr.
Jefferson’s “statements concerning the intensity, persistence and limiting effects of [his]
symptoms [were] not entirely credible.” (R. 33).

She noted he smoked despite his

pulmonary impairment, walked fourteen blocks to the hospital, and that the record was
inconsistent regarding his grip strength – “[r]ange of motion, finger opposition and
ability to make a fist were full.” (R. 33). She noted that his impairments were longstanding and he had worked despite them in the past. (R. 34). There was no record of
prescriptions for pain killers. (R. 34). She noted that several consultants had detailed
their opinions as to the reasons why the claimant’s complaints as to difficulty with grip
and manipulation are entirely unsupported by the objective record . . . .” (R. 34). The
ALJ determined that Mr. Jefferson could not perform his past work but, relying on the
VE’s testimony, concluded that Mr. Jefferson could perform jobs existing in significant
numbers in the regional economy. (R. 35-36). As a result, she concluded that Mr.
Jefferson was not disabled. (R. 36).
IV.
DISCUSSION
A.
Standard of Review
The applicable standard of review of the Commissioner’s decision is a familiar
one. The court must affirm the decision if it is supported by substantial evidence. 42
U.S.C. §§ 405(g). “Substantial evidence is ‘such relevant evidence as a reasonable mind

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might accept to support a conclusion.’” Schaaf v. Astrue, 602 F.3d 869, 874 (7th Cir.
2010)(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The court may not
reweigh the evidence, or substitute its judgment for that of the ALJ. Terry v. Astrue, 580
F.3d 471, 475 (7th Cir. 2009); Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008). Where
conflicting evidence would allow reasonable minds to differ as to whether the claimant
is disabled, it is the ALJ’s responsibility to resolve those conflicts. Elder v. Astrue, 529
F.3d 408, (7th Cir. 2008); Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997).
Conclusions of law are not entitled to such deference, however, so where the
Commissioner commits an error of law, the court must reverse the decision regardless of
the volume of evidence supporting the factual findings. Schmidt v. Astrue, 496 F.3d 833,
841 (7th Cir. 2007).
While the standard of review is deferential, the court cannot act as a mere “rubber
stamp” for the Commissioner’s decision. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir.
2002). An ALJ is required to “minimally articulate” the reasons for his decision.
Berger, 516 F.3d at 544; Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001).
Although the ALJ need not address every piece of evidence, the ALJ cannot limit his
discussion to only that evidence that supports his ultimate conclusion. Herron v. Shalala,
19 F.3d 329, 333 (7th Cir. 1994). The ALJ’s decision must allow the court to assess the
validity of his findings and afford the claimant a meaningful judicial review. Hopgood
ex rel. L.G. v. Astrue, 578 F.3d 696, 698 (7th Cir. 2009). The Seventh Circuit calls this
building a “logical bridge” between the evidence and the ALJ’s conclusion. Sarchet v.
Chater, 78 F.3d 305, 307 (7th Cir. 1996).

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B.
Five-Step Sequential Analysis
The Social Security Regulations provide a five-step sequential inquiry to
determine whether a plaintiff is disabled:
1) is the plaintiff currently unemployed;
2) does the plaintiff have a severe impairment;
3) does the plaintiff have an impairment that meets or equals one of the
impairments listed as disabling in the Commissioner’s regulations;
4) is the plaintiff unable to perform his past relevant work; and
5) is the plaintiff unable to perform any other work in the national
economy?
20 C.F.R. §§ 404.1520; Simila v. Astrue, 573 F.3d 503, 512-13 (7th Cir. 2009); Briscoe
ex rel. Taylor v. Barnhart, 425 F.3d 345, 351-52 (7th Cir. 2005). An affirmative answer
leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled.
20 C.F.R. §416.920; Briscoe, 425 F.3d at 352; Stein v. Sullivan, 892 F.2d 43, 44 (7th Cir.
1990). A negative answer at any point, other than step 3, stops the inquiry and leads to a
determination that the claimant is not disabled. 20 C.F.R. §404.1520; Stein, 892 F.2d at
44. The claimant bears the burden of proof through step four; if it is met, the burden
shifts to the Commissioner at step five. Briscoe, 425 F.3d at 352, Brewer v. Chater, 103
F.3d 1384, 1391 (7th Cir. 1997).
C.
Analysis
Mr. Jefferson cites several problems with the ALJ’s opinion, but this review will
focus on one that requires a remand: the ALJ’s treatment – or lack thereof – of the

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medical opinions of an examining and treating physician. While the ALJ summarizes the
findings of Dr. Johnson’s consultative examination, she fails to mention his opinion that
Mr. Jefferson was unable to stand or walk for long periods, and would have significant
problems with his hands. She completely ignores the opinion of Dr. Sapotka – who
treated Mr. Jefferson, albeit briefly – that Mr. Jefferson’s ability to walk was reduced by
more than 50% and that he could lift no more than ten pounds at a time. She says only
that Mr. Jefferson “was admitted to Stroger Hospital from June 2, 2007 to June 5, 2007.”
(R. 29).
An ALJ can’t simply ignore a line of evidence that is contrary to her conclusion.
Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009); Villano v. Astrue, 556 F.3d 558, 563
(7th Cir.2009). If a person can’t walk for long periods of time, they would seem unable
to perform a job that requires them to “be capable of being on their feet six out of eight
hours throughout the course of the day,” as the VE testified. (R. 522). And it’s unlikely
that someone who has significant problems with their hands could perform frequent
handling and fingering. But the ALJ didn’t even address these opinions.
Moreover, the ALJ is required to provide a certain level of analysis if she rejects
opinions of treating or examining physicians. A treating physician's opinion is entitled to
controlling weight if it is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence” in the
record. 20 C.F.R. § 404.1527(d)(2); Schmidt, 496 F.3d at 842; White v. Barnhart, 415
F.3d 654, 658 (7th Cir.2005).

This rule takes into account the treating physician's

advantage in having personally examined the claimant and developed a rapport, while
controlling for the biases that a treating physician may develop, such as friendship with

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the patient. Hofslien v. Barnhart, 439 F.3d 375, 377 (7th Cir. 2006); Dixon, 270 F.3d at
1177. In deciding how much weight to accord a treating physician’s opinion, the ALJ
should consider various factors, like how often the treating physician has examined the
claimant, whether the physician is a specialist in the condition claimed to be disabling,
and so forth; consistency with the record and support are rolled back into the equation as
well. Id. at 377; 20 C.F.R. § 404.1527(d). Simply put, if an ALJ does not give the
treating physician's opinion controlling weight, she has to provide “good reasons” for
how much weight she accords it. Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010);
Craft v. Astrue, 539 F.3d 668, 676 (7th Cir. 2008); Schmidt v. Astrue, 496 F.3d 833, 842
(7th Cir. 2007). An examining physician’s opinion is entitled to less weight that a treating
physician’s, but an ALJ still can’t reject it out of hand. She has to determine the weight
she decides to accord it and must explain her reasoning. Simila v. Astrue, 573 F.3d 503,
515 (7th Cir. 2009); Craft v. Astrue, 539 F.3d 668, 676 (7th Cir. 2008). And those reasons
must be supported by the record. Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003).
Clearly, if the ALJ doesn’t so much as mention a medical opinion, she doesn’t
meet these requirements. The Commissioner argues that there were four non-examining
physicians that found Mr. Jefferson could do light work, and that there are a number of
things that detract from the opinions of Drs. Johnson and Sapotka.

But the

Commissioner’s reasoning is not up for review, the ALJ’s is. See Parker v. Astrue, 597
F.3d 920, 922 (7th Cir. 2010)(“[the] agency's lawyers [may not] . . . defend the agency's
decision on grounds that the agency itself had not embraced.”); Stewart v. Astrue , 561
F.3d 679, 684 (7th Cir. 2009)(“. . . in reviewing that determination a court must confine
itself to the reasons supplied by the ALJ.”). Moreover, the ALJ would certainly have had

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to go into some depth in order to favor the opinions of non-examining physicians over
those of treating and examining physicians. See Gudgel v. Barnhart, 345 F.3d 467, 470
(7th Cir. 2003)(“An ALJ can reject an examining physician's opinion only for reasons
supported by substantial evidence in the record; a contradictory opinion of a nonexamining physician does not, by itself, suffice.”). But the ALJ didn’t do that here.
Because the ALJ failed to address two medical opinions that conflicted with her
conclusion, this case must be remanded.
A few other points are worth noting. The Commissioner makes much of the fact
that, in the notes covering Mr. Jefferson’s hospitalization in October 2003, it is said that
he walked fourteen blocks to the hospital. The ALJ mentions this as well, although not
as a reason for discrediting any of the medical opinions. But this was a single occasion,
see Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004)(“ . . . we cannot see how
[claimant’s] being able to walk two miles is inconsistent with her suffering severe
pain.”), from a time when Mr. Jefferson was still working – recall that he performed
substantial gainful activity in 2005, and worked intermittently prior to that. Moreover,
it’s not clear that a homeless man who needed treatment would have any choice. Cf.
Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir. 2005)(claimant had no choice but to take
care of her child). So, it’s not the type of thing that an ALJ should put too much stock in.
See Carradine, 360 F.3d at 756 (“The weight the administrative law judge gave to
Carradine's ability to walk two miles was perverse . . . .”).
Some of the characterizations the ALJ gives the evidence don’t bear scrutiny.
She says that the evidence regarding Mr. Jefferson’s grip strength was “inconsistent . . .
in one instance finding reduced grip strength and, in another, finding full grip strength.”

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(R. 33). Actually, the only two measurements of grip strength find it reduced by at least
40%. (R. 168, 388). She says she is “mindful that several consultants have detailed their
opinions as to the reasons why the claimant’s complaints as to difficulty with grip and
manipulation are entirely unsupported by the record . . . .” (R. 34). She does not indicate
who these “several consultants” are or where their reports can be found in the record. As
just noted, the two consultative exams that evaluated grip strength found it significantly
reduced.
CONCLUSION
The plaintiff’s motion for summary judgment or remand [#16] is GRANTED, and
the Commissioner’s motion for summary judgment [#22] is DENIED.

ENTERED:
UNITED STATES MAGISTRATE JUDGE
DATE: 4/21/11

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