Fleming et al

Filing 26

MEMORANDUM Opinion and Order. Signed by the Honorable Susan E. Cox on 5/10/11: (vkd, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BRENDA FLEMING,
Plaintiff,

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

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No. 10-cv-3043

Magistrate Judge Susan E. Cox

MEMORANDUM OPINION AND ORDER
Plaintiff, Brenda Fleming (“Fleming”), seeks judicial review of a final decision denying her
application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act.
Fleming has filed a Motion for Summary Judgment and seeks a judgment reversing or remanding
the Commissioner’s final decision. For the following reasons set forth below, Fleming’s motion is
granted.
I.

PROCEDURAL HISTORY
On September 8, 2006, Fleming filed an application for DIB with a period of disability

beginning on January 1, 2003.1 The Social Security Administration denied her initial claim on
November 15, 2006.2 Fleming then filed a Request for Reconsideration and the claim was again
denied by notice on January 9, 2007.3 On February 23, 2007, Fleming filed a written request for a

1

R. at 114-116.
R. at 49.
3
R. at 54.
2

1

hearing before an Administrative Law Judge (“ALJ”).4
On May 28, 2009, a hearing was held before ALJ Bonny S. Barezky in Chicago, Illinois.5
Following the hearing, the ALJ issued an unfavorable opinion on June 16, 2009, finding that
Fleming was not disabled under the Social Security Act.6 Fleming then filed a request for review of
the ALJ’s determination with the Social Security Administration’s Appeal Council, which was
denied on April 2, 2010, leaving the ALJ’s ruling as the final decision of the Commissioner.7 On
May 18, 2010, Fleming filed this timely action.8
II.

STATEMENT OF FACTS

A.

Introduction and Medical Evidence
The facts set forth below provide a brief summarization of Fleming’s background and the

medical history that led to her application for DIB. Fleming was born on March 6, 1959, making her
fifty years old when the ALJ issued her decision.9 Fleming graduated from high school and
previously worked as a teacher’s assistant at a daycare facility from 1995 through 2002.10 She last
worked as a teacher’s assistant for two weeks in March of 2006.11
Fleming was diagnosed with a seizure disorder as early as 1995 by family medical doctor,
Rolando Sajor, M.D.12 A seizure is “a sudden attack of an illness; a sudden onset of symptoms,
[such] as convulsions” or as an “epileptic attack.”13 There are many types of seizures and Fleming

4

R. at 58.
R. at 5.
6
R. at 38-48.
7
R. at 1-4.
8
Pl.’s Compl.
9
R. at 8.
10
R. at 8, 29
11
R. at 10-11.
12
R. at 177-188.
13
J.E. Schmidt, 5-PR Attorneys’ Dictionary of Medicine at S-90 (Matthew Bender & Co. 2010).
5

2

has experienced both grand mal and petit mal seizures throughout her life.14 A grand mal is “ a
severe fit or seizure, marked by a prolonged loss of consciousness, convulsions, coma, etc.”15 A petit
mal is “a mild seizure or fit, marked by a short lapse of consciousness, dizziness, etc., but without
convulsions.”16 Dr. Sajor prescribed her Phenobarbital to treat her disorder and Fleming continues
this regimen to date.17 Fleming has also been diagnosed with iron deficiency anemia, which she has
been prescribed Ferrous Sulfate for treatment.18 Iron deficiency anemia is “anemia caused by a lack
of iron in the diet.”19 Generally, anemia is “a condition of the blood in which the number of red
blood cells is below normal, or the amount of hemoglobin - the oxygen-carrying red pigment - in
the red cells is below normal, or both the number of cells and the amount of hemoglobin are below
normal.”20 The symptoms of anemia may include “paleness, weakness, fatigue, lack of energy,
shortness of breath, palpitation, and swelling of the extremities.”21 At the time of Fleming’s hearing,
she also indicated she takes Atenolol, along with water pills, to treat her high blood pressure.22
On November 1, 2006, Kenneth H. Gong, M.D., conducted a consultative examination of
Fleming on behalf of the Bureau of Disability Determination Services.23 Fleming told Dr. Gong that
she has had a seizure disorder since the age of three and that her last seizure was in 2002.24 She
explained that she did not know the duration of her seizures, but that individuals who witnessed
these episodes have explained that she has bitten her tongue and lost bladder control during her

14

R. at 45-46.
J.E. Schmidt, 3-G Attorneys’ Dictionary of Medicine at G-138 (Matthew Bender & Co. 2010).
16
J.E. Schmidt, 4-M Attorneys’ Dictionary of Medicine at P-200.1 (Matthew Bender & Co. 2010).
17
R. at 26, 203.
18
R. at 28, 203.
19
J.E. Schmidt, 1-A Attorneys’ Dictionary of Medicine at A-341 (Matthew Bender & Co. 2010).
20
Id. at A-339.
21
Id. at A-340.
22
R at 9, 17.
23
R. at 202-208.
24
R. at 202.
15

3

episodes.25 Fleming reported to Dr. Gong that she has been diagnosed with anemia and was seen at
Stroger Hospital Emergency resulting from palpitations and weakness related to anemia.26
Dr. Gong reported that during his evaluation Fleming did not appear to be in any “acute
distress.”27 However, he noted that upon getting up from the examination chair, Fleming’s
respiratory rate was “28 with shallow breaths.”28 The doctor evaluated Fleming to have normal grip
strength, gait, and range of motion.29 He did note, however, that while Fleming was only able to
squat and rise fifty percent, she was unable to offer a reason for this difficulty.30
On November 13, 2006, Frank Jimenez, M.D., a separate state-agency physician, reviewed
Fleming’s medical file and evaluated her residual functional capacity.31 Dr. Jimenez opined that
Fleming would be able to occasionally lift up to twenty pounds, frequently lift ten pounds, stand
and/or walk and sit for a total of six hours in an eight-hour workday, and had an unlimited ability
to push and/or pull.32 He noted that Fleming was only limited in the climbing of ladders, ropes, and
scaffolds.33 Dr. Jimenez evaluated Fleming as having tachycardia with a pulse of 108 and an early
systolic murmur.34 Despite these observations, Dr. Jimenez concluded that Fleming was capable of
work.35 A second state-agency physician, Young-Ja Kim, M.D., reviewed Fleming’s file on January
5, 2007 and concurred with Dr. Jimenez’s findings.36

25

Id.
R. at 203.
27
Id.
28
Id.
29
R. at 204.
30
Id.
31
R. at 209-216.
32
R. at 210.
33
R. at 211.
34
R. at 216.
35
Id.
36
R. at 218.
26

4

B.

Fleming’s May 28, 2009 Hearing Testimony
Fleming’s hearing before the ALJ took place on May 28, 2009.37 Fleming appeared in person

and was represented by attorney, Christopher Muldane.38 At the hearing, Fleming testified that she
was last employed in 2006 for a period of two weeks.39 Fleming has no source of income and
receives financial assistance from her three adult children.40 She lives with her boyfriend who she
testified makes no contributions to their household.41 Fleming testified she has never had a driver’s
license due to seizures.42
When asked by the ALJ why she stopped working in 2006, Fleming responded that she
became chronically ill and subsequently quit because she could not sustain her job as a child care
assistant.43 Fleming said that she has been taking Phenobarbital for her seizure disorder since the age
of three.44 She explained that between 1995 and 2002, while she worked as a teacher’s assistant, she
took Phenobarbital and had seizures during that period.45 Fleming approximated that while she
worked, she had two to three seizures per year.46
Fleming testified that since she stopped working as a teacher’s assistant, she has had petit
mal seizures once a month.47 Fleming explained that she becomes tired before experiencing a seizure
and that she lies down as a precaution.48 She explained that when she has a seizure, she feels

37

R. at 5.
R. at 7.
39
R. at 10.
40
R at 19.
41
R. at 19-20.
42
R. at 33.
43
R. at 11.
44
R. at 26.
45
R. at 30.
46
R. at 32.
47
R. at 15, 30.
48
R. at 12.
38

5

incoherent, dazed or confused.49 Fleming testified that these feelings last for approximately three to
four minutes, at which point she comes back to herself.50 She said that she has lost bowel control
during the course of a seizure, the most recent of which occurred a month before the hearing.51
Fleming testified that she has difficulty sleeping as a result of the water pills prescribed for
her high blood pressure.52 Specifically, she said that she is “up all night from the water pills” and
that consequently, she sleeps during the day.53
Fleming also testified that she could not walk a block without becoming tired.54 She could
stand for approximately twenty minutes in one place before getting tired.55 When asked by the ALJ
about how much weight she could lift, Fleming testified that a gallon of milk would be too heavy
for her to lift.56
In response to questions about her daily activities, Fleming said that she was able to cook
simple meals, dust once or twice a week, do her laundry once a month, wash dishes once or twice
a day, and grocery shop.57 She testified that when she grocery shops, she puts the gallon of milk in
the shopping cart herself.58
III.

THE ALJ’S DECISION
In her June 16, 2009 decision, ALJ Barezky determined that Fleming was not disabled within

the meaning of the Social Security Act and, therefore, was not entitled to DIB or a period of

49

R. at 14-15.
R. at 13.
51
R. at 15-16.
52
R. at 17.
53
Id.
54
R. at 18.
55
Id.
56
Id.
57
R. at 20, 22-25.
58
R. at 22.
50

6

disability.59 In reaching this conclusion, the ALJ followed the five-step evaluation process outlined
in the Regulations.60As an initial matter, the ALJ determined that Fleming met the insured status
requirements of the Social Security Act on December 31, 2007.61 Under the five-step sequential
evaluation process, the ALJ must consider: (1) whether the claimant is presently engaged in any
substantial gainful activity; (2) whether the claimant has a severe impairment or combination of
impairments; (3) whether the claimant’s impairment meets or equals any impairment listed in the
Regulations as being so severe as to preclude gainful activity; (4) whether the claimant is unable to
perform her past relevant work; and (5) whether the claimant is unable to perform any other work
existing in significant numbers in the national economy.62 A finding of disability requires an
affirmative answer at either step three or step five, while a negative answer at any step other than
step three precludes a finding of disability.63
At step one, the ALJ found that Fleming had not engaged in substantial gainful activity since
January 1, 2003.64 At step two, the ALJ found that Fleming suffered from a seizure disorder, chronic
anemia affecting the heart, hypertension and obesity.65
At step three, the ALJ found that Fleming lacked an impairment or combination of
impairments meeting or medically equaling those listed in 20 C.F.R. § 404, Subpart P, Appendix
1.66 In support of this finding, the ALJ stated that despite the presence of severe impairments in the
record, Fleming failed to meet or equal the requirements in the Listings of Impairments.67 Further,

59

R. at 41.
R. at 41; 20 C.F.R. § 404.1520(a).
61
R. at 43.
62
20 C.F.R. § 404.1520(b)-(g).
63
Young v. Sec’y of Health & Human Servs., 957 F.2d 386, 389 (7th Cir. 1992).
64
R. at 43.
65
Id.
66
R. at 43-44.
67
Id.
60

7

the ALJ noted that this finding was acknowledged by Fleming’s attorney at the hearing.68
Specifically, the ALJ noted that she addressed four of Fleming’s impairments in reaching her
conclusion: (1) seizure disorder; (2) anemia; (3) hypertension; and (4) obesity.69
The ALJ explained that with regard to her seizure disorder, Fleming’s impairment failed to
meet the grand mal seizure frequency requirement set forth in listing 11.02. The ALJ noted that the
medical record revealed that Fleming had not had a grand mal seizure since 2002.70 Further,
Fleming’s petit mal seizures did not meet the 11.03 listing requirement.71 Specifically, listing 11.03
requires documentation of claimant’s typical seizure patterns and that the seizures occur more
frequently than once weekly in spite of at least three months of prescribed treatment.72 The record,
however, indicated Fleming does not have petit mal seizures more than once weekly.73 To further
support this conclusion, the ALJ noted that Fleming testified that the seizures occur approximately
once per month.74
The ALJ explained that with regard to Fleming’s anemia, it did not meet listing 7.01, which
requires that a claimant receive one or more blood transfusions on average at least once every two
months.75 Further, Fleming’s anemia did not result in any condition that satisfied a cardiovascular
listing under listing 4.01.76 The ALJ explained that with regard to Fleming’s hypertension, it did not
meet any cardiac listing.77 In support of this conclusion, the ALJ noted that Fleming’s testimony and

68

R. at 10, 44.
R. at 44.
70
Id.
71
Id.
72
20 C.F.R. § 404, Subpart P, app. 1; R. at 44.
73
R. at 44.
74
R. at 14-15, 30, 44.
75
R. at 44.
76
Id.
77
Id.
69

8

medical records referenced no effects of hypertension to a specific body system other than Fleming’s
allegation that it affected her ability to sleep.78 The ALJ indicated that with regard to Fleming’s
obesity, there was no objective medical evidence demonstrating that her obesity, along with her
cardiovascular impairment, would meet any listing under 4.01.79
Next, the ALJ assessed Fleming’s residual functional capacity (“RFC”).80 The ALJ concluded
that Fleming could perform light work as defined by 20 C.F.R. 404.1567(b), except that she could
not climb ladders, ropes, or scaffolds, and could not operate dangerous machinery.81 In reaching this
conclusion, the ALJ noted that she considered all of Fleming’s symptoms and the extent to which
they comported with the objective medical evidence and other medical evidence pursuant to 20
C.F.R. 404.1529 and SSRs 96-4p and 96-7p.82 In addition, the ALJ considered opinion evidence in
reaching her conclusion pursuant to 20 C.F.R. 404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.83
The ALJ found that Fleming’s medically determinable impairments reasonably supported
Fleming’s alleged symptoms, but that Fleming’s statements concerning the intensity, persistence and
limiting effects of these symptoms were not credible to the extent they were inconsistent with the
RFC assessment.84 In support, the ALJ noted Fleming testified to suffering from a seizure disorder
since the age of three.85 The record and Fleming’s testimony reflect that she worked as a teacher’s
assistant from 1995 through 2002, despite her seizure disorder. Further, the ALJ explained that the
frequency or intensity of Fleming’s seizure disorder had not increased since that time and that, in fact,

78

Id.
Id.
80
Id.
81
Id.
82
Id.
83
Id.
84
R. at 45.
85
Id.
79

9

her seizure disorder had not progressed beyond petit mal seizures since 2002.86
The ALJ also stated that Fleming testified that she received five refills at a time of
Phenobarbital from her doctor, did not visit her doctor frequently, and was able to manage her seizure
condition on her own with medication.87 The ALJ noted the inconsistency between Fleming’s alleged
inability to work due to her seizures and the record evidence that demonstrated that she was in fact
capable of work despite her seizure disorder.88 The ALJ cited a lack of hypertension allegations in
Fleming’s initial disability report, or in either of her two disability appeal reports, despite her current
allegations of fatigue and sleep interruption caused by the combination of water pills with Atenolol.89
The ALJ noted that Fleming alleged fatigue and that she has been unable to walk further than a halfblock or more than two or three stairs, in addition to heart palpitations caused by her anemia.90
However, the ALJ stated that Fleming testified at the hearing, and reported when receiving medical
treatment in May 2006, that iron pills helped her condition.91 Further, the ALJ explained that the
record reflected that Fleming experienced heart palpitations, but no syncope, and that the record
demonstrated a decrease in heart palpitations and shortness of breath at that time.92 The ALJ found
that although Fleming testified that she suffered from anemia her entire life, she demonstrated the
ability to work despite her anemia.93
The ALJ also noted Fleming’s ability to live independently, without assistance, other than the
financial support received from her children.94 In support, the ALJ cited Fleming’s testimony that she

86

R. at 46.
Id.
88
Id.
89
Id.
90
Id.
91
Id.
92
Id.
93
Id.
94
Id.
87

10

lives alone with her boyfriend and that without any help from him, does all the cleaning, shopping
laundry, and takes out the garbage.95 Fleming also testified that her limitations in daily activities
included not being able to lift a gallon of milk or walk for more than one-half block, and not being
able to stand for more than twenty minutes.96 The ALJ noted that despite testifying to difficulty in
lifting a gallon of milk, Fleming also stated that she lifts a gallon of milk when grocery shopping, and
puts the milk in the shopping cart herself.97 The ALJ cautioned that while Fleming’s daily activities
do not evince an absolute ability to work, evidence of her activities demonstrated the wide range of
activities Fleming regularly performs despite her impairments.98 Further, the ALJ gave great weight
to the State agency consultants’ opinions in reaching her conclusion, noting that these opinions were
consistent with the RFC assessment and were supported by the record in its entirety.99
Based on her RFC and the entire record, the ALJ found Fleming capable of performing her
past relevant work as a teacher’s assistant in a preschool.100 Further, the ALJ noted that this type of
work did not require the performance of work-related activities precluded by Fleming’s RFC.101
Accordingly, the ALJ ruled that Fleming was not disabled under the Social Security Act.102
IV.

STANDARD OF REVIEW
The Court performs a de novo review of the ALJ’s conclusions of law, but the ALJ’s factual

determinations are entitled to deference.103 The District Court will uphold the ALJ’s decision if
substantial evidence supports the findings of the decision and if the findings are free from legal

95

Id.
Id.
97
Id.
98
Id.
99
Id.
100
R. at 47.
101
Id.; 20 C.F.R. 404.1565.
102
R. at 47.
103
Prochaska v. Barnhart, 454 F.3d 731, 734 (7th Cir. 2006).
96

11

error.104 Where reasonable minds differ, it is for the ALJ, not this Court, to make the ultimate findings
as to disability.105 However, the ALJ must make an accurate and logical connection from the evidence
to the ultimate conclusion.106 While the ALJ is not required to discuss every piece of evidence, the
ALJ must minimally articulate his reasons for crediting or discrediting evidence of disability.107
V.

ANALYSIS
Fleming argues that the Court should reverse or remand the ALJ’s decision because the ALJ:

(1) failed to make a valid credibility determination; (2) failed to explain how she arrived at the RFC;
(3) failed to analyze the combination of Fleming’s impairments and their effect on her ability to work,
including alleged extreme obesity, heart palpitations, anemia and uterine fibroids; and (4) failed to
analyze the specific requirements of Fleming’s past relevant work, contrary to Social Security Ruling
(“SSR”) 82-62.
A.

The ALJ’s Credibility Determination
Fleming’s first argument is that the ALJ improperly made a conclusory finding as to her

credibility and, therefore, committed legal error.108 Specifically, Fleming alleges that the ALJ failed
to consider Fleming’s seizure disorder, fatigue, and side effects when assessing Fleming’s
credibility.109 The Commissioner highlights that the ALJ reasonably concluded that Fleming’s
subjective testimony of her symptoms was not fully credible.110
Generally, an ALJ’s credibility determinations are entitled to special deference.111 Therefore,

104

42 U.S.C. § 405(g); Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
Cass v. Shalala, 8 F.3d 552, 555 (7th Cir. 1993).
106
Dixon v. Massanori, 270 F.3d 1171, 1176 (7th Cir. 2001).
107
Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000).
108
Pl.’s Br. 1.
109
Pl.’s Br. 4-7.
110
Resp. 7.
111
Castile v. Astrue, 617 F.3d 923, 929 (7th Cir. 2010).
105

12

the Court will not overturn an ALJ’s credibility determination unless it is patently wrong.112 Pursuant
to SSR 96-7p, an ALJ’s credibility determination must contain specific reasons that are supported
by the evidence in the record.113 It also requires that the determination be sufficiently specific to make
clear what weight the adjudicator gave to the individual’s statements and the reasons for that
weight.114 The ALJ must consider the entire record, including the objective medical evidence, the
claimant’s statements about symptoms, statements and other information provided by any treating
physicians, and any other relevant evidence available in the record.115 The ALJ is not permitted to
disregard the claimant’s statements solely because they are not established by the medical
evidence.116 In fact, the regulations explain that in addition to considering objective medical evidence,
the ALJ should consider a claimant’s daily activities, the frequency of symptoms, the dosage and side
effects of any medication and other methods of treatment being pursued.117 While it is not required
that the ALJ mention every piece of evidence in reaching her decision, the ALJ must build a logical
bridge between the evidence and conclusion.118
Fleming makes the specific point that the ALJ committed legal error by failing to first
evaluate Fleming’s credibility before assessing her RFC. But despite this statement, it seems
Fleming’s general argument is that she takes issue with the “conclusory fashion” in which the ALJ
determined Fleming not to be credible rather than in what order the ALJ assessed her credibility.119
Fleming cites to several cases for the proposition that the ALJ cannot make a cursory

112

Id. at 929 (citing Eichstadt v. Astrue, 534 F.3d 663, 668 (7th Cir. 2008)).
SSR 96-7p.
114
Id.
115
Id.
116
Id.
117
20 C.F.R. § 404.1529(c)(3).
118
Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009).
119
Pl.’s Br. 5.
113

13

determination.120 Careful review of the ALJ’s decision, however, indicates that the ALJ did not make
such a finding. Instead, the ALJ specifically addressed, point by point, Fleming’s impairments in
reaching her credibility determination.121 For example, the ALJ detailed Fleming’s seizure disorder,
hypertension (and fatigue), and anemia in her decision and further articulated how Fleming’s alleged
limitations conflicted with Fleming’s own testimony.122
With respect to Fleming’s claim that the ALJ failed to analyze Fleming’s seizure disorder,
the ALJ first noted that Fleming maintained consistent work as a teacher’s assistant from 1995
through 2002 in spite of her seizure disorder.123 The ALJ also included that Fleming stated to the
consultative examiner that her last seizure (presumably referring to her last grand mal seizure)
occurred in 2002.124 Further, the ALJ noted that Fleming testified to the fact that “her seizure disorder
ha[d] not progressed beyond petit mal seizures since 2002.”125 The ALJ then found because Fleming
“is able to manage her seizure condition on her own with medication,” “she does not visit her doctor
frequently” and receives five refills of phenobarbital at a time from her doctor to treat her seizure
condition.126 Despite Fleming’s claim that she cannot work because of her seizure disorder, the ALJ
specifically noted that the record clearly demonstrates, as does Fleming’s own testimony, that
Fleming’s seizure disorder has improved since she last worked in 2002, and, in fact, that she was

120

See Brindisi ex rel. Brindisi v. Barnhart, 315 F.3d 783, 787-88 (7th Cir. 2003) (reversing and remanding
the ALJ’s decision for failure to explain the weight given to claimant’s statements and for failure to provide any
support from the record in reaching the decision); Woodson v. Astrue, No. 09cv8028, 2010 WL 3420219 (N.D. Ill.
Aug. 27, 2010) (reversing the ALJ’s decision for failing to analyze claimant’s testimony regarding his symptoms and
daily activities); Dogan v. Astrue, No. 09cv207, 2010 WL 2331394 (N.D. Ind. June 3, 2010) (finding that the ALJ
failed to explain why the claimant was not credible prior to a certain date).
121
See R. at 45-46.
122
R. at 45-46.
123
R. at 45.
124
R. at 45.
125
R. at 46.
126
Id.

14

capable of working when she suffered more severe seizures in the past.127
Next, Fleming argues that the ALJ did not consider the impact of Fleming’s hypertension on
her inability to work and failed to properly analyze Fleming’s complaints of fatigue.128 Specifically,
Fleming asserts that the ALJ “failed to build a logical bridge between finding [...] Fleming’s
hypertension to be severe, and then stating that it did not impact her ability to work.”129 But the ALJ
did, in fact, make note of Fleming’s hypertension in the report, specifically discussing Fleming’s
accompanying medical treatment for her hypertension.130 At that point, the ALJ noted that Fleming
“alleges that the water pills cause fatigue because she takes it at night and has to go to the bathroom
often which interrupts her sleep.”131 With respect to fatigue, the ALJ noted that Fleming alleged that
she is “fatigued and unable to walk ½ a block or walk up more than 2 or 3 stairs.”132
Then, the ALJ noted several contradictions in Fleming’s testimony with respect to her
allegations of fatigue.133 As noted by the ALJ, despite testifying that Fleming found it difficult to lift
a gallon of milk, “she also stated that she is able to do so when she shops, in that she is able to buy
gallons of milk and put them into the shopping cart by herself.”134 Further, despite Fleming’s
testimony that she becomes “fatigued and unable to walk ½ a block or walk up more than 2 or 3
stairs,” the ALJ noted that Fleming was able to live independently and without assistance, aside from
financial assistance from her children.135 The ALJ made clear that while Fleming’s daily activities
could not alone support a finding of lack of credibility, they should be considered to determine

127

R. at 45-46.
Pl.’s Br. 6-7.
129
Pl.’s Br. 6.
130
R. at 46.
131
Id.
132
Id.
133
Id.
134
Id.
135
Id.
128

15

whether Fleming was credible.136
Fleming also makes a side argument regarding the ALJ’s failure to consider Fleming’s
medications and their potential side effects.137 Fleming correctly points out that SSR 96-7p requires
that ALJs consider the side effects of a claimant’s medications. To support her proposition, Fleming
points the Court to her medical record, where she reported that Phenobarbital, the medication she
took for her seizures, made her drowsy.138 As noted by the ALJ, Fleming testified that “she is able
to manage her seizure condition on her own with medication.”139 While Fleming also cites to possible
side effects from other impairments, such as her anemia, the ALJ specifically noted that Fleming
testified that “iron pills help her condition.”140 The ALJ also discussed Fleming’s various medications
and relied on the inconsistencies with Fleming’s own testimony to support her finding that Fleming
was not credible.141
Accordingly, because the ALJ considered not only the medical record, but also evaluated
Fleming’s testimony as to her daily activities, frequency of her symptoms, and the dosage and side
effects of her medication, the Court finds substantial support for the ALJ’s credibility determination.
B.

The ALJ’s RFC Assessment
Fleming argues that by not providing any explanation as to how she arrived at her RFC

assessment, the ALJ committed legal error.142 Specifically, Fleming asserts that the ALJ failed to
articulate what evidence she used to determine that Fleming could perform light work, with the

136

20 C.F.R. § 404.1529(c)(3).
Pl.’s Br. 7.
138
Id.
139
R. at 46.
140
Id.
141
R. at 45-46.
142
Pl.’s Br. 7.
137

16

exception of climbing ladders, ropes or scaffolds, or operating dangerous machinery.143 Alternatively,
the Commissioner argues that the ALJ discussed “the medical evidence, physician opinions, and
Fleming’s testimony in finding [that Fleming] could perform a light range of work.”144 We note that
the ALJ essentially combined much of her discussion of credibility and RFC. By not analyzing each
step as a separate entity, it is difficult for the Court to sufficiently parse out the ALJ’s discussion of
each. However, the ALJ specifically articulated two factors that helped her determine Fleming’s
RFC.145 First, the ALJ noted that Fleming’s alleged daily activities could not be objectively verified
with any degree of reasonable certainty. Second, the ALJ indicated that the daily activities Fleming
described she was able to do did not correspond to the degree of limitation she alleged.146
With respect to a claimant’s RFC assessment, an adjudicator is tasked with determining “an
individual’s ability to do sustained work-related physical and mental activities in a work setting on
a regular and continuing basis.”147 The first prong of the assessment requires a determination regarding
an “individual’s functional limitations or restrictions” in addition to an assessment of work-related
abilities.148 The second prong of the assessment calls for a finding of an individual’s exertional level
of work, either “sedentary, light, medium, heavy, and very heavy.”149 An ALJ must minimally
articulate reasons for crediting or discrediting evidence of disability.150
First, the ALJ noted that Fleming’s “alleged limited daily activities cannot be objectively
verified with any reasonable degree of certainty.”151 As we discussed above, with respect to Fleming’s

143

Pl.’s Br. 7-8; see R. at 44.
Resp. 4.
145
R. at 46.
146
Id.
147
SSR 96-8p.
148
Id.
149
Id.
150
Clifford, 227 F.3d at 871.
151
R. at 46.
144

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seizure disorder, the ALJ noted that despite Fleming’s claim that the seizures limit her ability to work,
Fleming’s seizure disorder has not progressed beyond petit mal seizures since 2002.152 The ALJ noted
that this is particularly important because Fleming worked as a teacher’s assistant from 1995 to 2002
in spite of her seizures and, in fact, during that period of time she experienced grand mal seizures.153
The ALJ remarked that there was no objective medical evidence in the record showing that the
frequency of Fleming’s seizures increased since 2002.154 To the contrary, the ALJ noted that Fleming’s
seizure disorder has not progressed beyond petit mal seizures since 2002.155 Further, pursuant to
Fleming’s alleged inability to work due to her anemia, the ALJ pointed out that Fleming stated that
she has suffered from anemia her entire life and “has demonstrated the ability to work in spite of
anemia in the past.”156
Second, the ALJ noted that the daily activities that Fleming described she was able to do does
not correspond to the degree of limitation she alleges.157 The ALJ stated that Fleming “testified, in
essence, that she is solely responsible for all her household chores.”158 Specifically, the ALJ pointed
to the fact that Fleming testified that while she lives alone with her boyfriend, she “does all the
cleaning, shopping, laundry, and takes out the garbage” without her boyfriend’s help.159 Further, the
ALJ indicated that “the record demonstrates that she is able to live independently [and] without
assistance other than [the] financial assistance she receives from her children.”160 The ALJ also
pointed to Fleming’s testimony regarding her alleged limitations due to fatigue and thus her inability

152

Id.
Id.
154
R. at 45-46.
155
R. at 46.
156
Id.
157
Id.
158
Id.
159
Id.
160
Id.
153

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to do simple tasks, including lifting a gallon of milk, walking half of a block, or walking up more than
two or three stairs.161 Despite Fleming’s alleged limitations, the ALJ noted that Fleming also testified
that when she grocery shops, she is able to “buy gallons of milk and put them into the shopping cart
by herself.”162 The ALJ stipulated that while Fleming’s “daily activities...do not in and of itself
indicate an ability to work, it does show that the claimant is capable of performing a wide range of
activities in spite of her impairments in a degree greater than alleged.”163
Fleming also makes a side argument that the ALJ failed to consider that Fleming went into
tachycardia as documented by the consultative examiner’s report.164 While the ALJ does not
specifically address this in her decision, we again note that the ALJ is not required to recite every
piece of evidence to arrive at a reasonable conclusion.165 To support her argument, Fleming points to
the consultative examiner’s report which identifies that Fleming went into tachycardia when she stood
up from the exam table.166 Aside from this one event, neither the medical record nor Fleming’s own
testimony reflect that Fleming experienced episodes of tachycardia aside from this one discrete event.
We, therefore, cannot agree that the ALJ committed reversible error for failure to discuss this.
C.

The ALJ’s Duty to Analyze Fleming’s Obesity
Fleming also argues that the ALJ failed to analyze the combination of her impairments. We

again find, however, that the more precise argument seems to be the ALJ’s failure to incorporate any
discussion of obesity. The Commissioner asserts that “the ALJ specifically considered [Fleming’s]
obesity,” among her other impairments, and “discussed the record evidence relating to these

161

Id.
Id.
163
Id.
164
Pl.’s Br. 8.
165
Knox v. Astrue, No. 08-3389, 2009 WL 1747901, at *5 (7th Cir. June 19, 2009).
166
Pl.’s Br. 8.
162

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impairments.”167 Careful review of the ALJ’s decision indicates that the ALJ did not, in fact, proffer
any explanation as to how Fleming’s obesity did or did not factor into her overall decision.
SSR 02-1p defines obesity as a medically determinable impairment and requires adjudicators
to consider its effects when evaluating a claimant’s disability.168 “The combined effects of obesity with
other impairments can be greater than the effects of each of the impairments considered separately.”169
Consequently, obesity must be considered for its incremental effect when combined with other
impairments.170
Here, the ALJ found that Fleming’s obesity was a severe impairment.171 The ALJ recognized
that Fleming testified that she was five feet seven inches tall, weighed approximately 237 pounds, and
had a BMI of 37.172 She then noted in her opinion that “there is no objective medical evidence
demonstrating that [Fleming’s] obesity in combination with [her] cardiovascular impairment meets
any listing under 4.01.173
We note that there is a factual discrepancy pertaining to Fleming’s height and BMI. Despite
Fleming’s testimony, the medical records indicate that Fleming was five feet five inches tall.174 We
are further unclear as to how Fleming and the ALJ determined Fleming’s BMI. In her brief, Fleming
cites to a BMI of 41.4 while the ALJ noted that Fleming’s BMI is 37.175 Neither the ALJ nor Fleming
cite to a report or medical record that would support either number. The medical records, rather, reveal

167

Resp. 3.
See SSR 02-1p.
169
Id.
170
Gentle v. Barnhart, 430 F.3d 865, 868 (7th Cir. 2008).
171
R. at 43.
172
R. at 44.
173
Id.
174
R. at 203, 216.
175
Pl.’s Br. 9 n..7.
168

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no BMI determination.
It is important to know Fleming’s exact BMI to determine her level of obesity. As Fleming
correctly points out, SSR 02-1p categorizes a BMI above 40 to be a Level III, also known as
“extreme” obesity.176 If Fleming’s finding of a BMI of 41.5 is accurate, then she would categorically
be defined as one with “extreme” obesity.177 If the ALJ’s recitation of a BMI of 37 is accurate, then
Fleming would have Level II obesity.178 While we cannot factually determine the impact that a finding
of Level II or Level III obesity would have for Fleming’s disability determination, it requires further
investigation by the ALJ. SSR 02-1p also mandates that the ALJ specifically address the effect of
obesity on a claimant’s limitations.179 Although the ALJ listed obesity as one of Fleming’s severe
impairments, she ultimately concluded that there was no medical evidence that would lead her to
believe that Fleming’s obesity in combination with her other impairments met any listing under
4.01.180 Because the ALJ found that one or more of Fleming’s impairments was “severe,” the ALJ had
a duty to consider “the aggregate effect of this entire constellation of ailments-including those
impairments that in isolation are not severe.”181 We, therefore, remand this case for further inquiry so
that Fleming’s BMI can be properly determined and her obesity level appropriately considered.
D.

Fleming’s Past Relevant Work and Vocational Expert Consultation
Fleming’s final argument is that the ALJ provided no support to show that Fleming can

perform her past relevant work as a teacher’s assistant.182 Fleming asserts that she testified that being
176

See SSR 02-1p.
Id.
178
Id.
179
See also Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009).
180
R. at 44.
181
See Golembiewski, 322 F.3d at 918 (citing 20 C.F.R. § 404.1523; see also Green v. Apfel, 204 F.3d 780,
782 (7th Cir. 2000)).
182
Pl.’s Br. 10.
177

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a teacher’s assistant “required her to stand or walk for six hours and sit for two hours per day.”183
Fleming further argues that because the ALJ found Fleming’s seizure disorder to be a “severe”
impairment, “she should have obtained testimony from a vocational expert to determine whether
someone having seizures would be able to perform [...] Fleming’s past relevant work in a
preschool.”184 The Commissioner argues that “the ALJ expressly stated that she gave great weight to
the state agency reviewing physicians’ assessment” in determining whether Fleming could perform
her past work.185
“Light work” involves “lifting no more than [twenty] pounds at a time with frequent lifting or
carrying of objects weighing up to [ten] pounds.”186 While lifting weight may be infrequent, a job is
deemed “light work” “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.”187 An individual deemed to
be capable of light work “must have the ability to do substantially all of [the abovementioned]
activities.”188 As to whether an ALJ must consult a VE when determining a claimant’s ability to do
past work, it is discretionary.189 The regulations indicate that while the opinions of experts are
considered, the final responsibility for deciding the RFC or vocational factors, is reserved to the
Commissioner.190
The ALJ cited the Dictionary of Occupational Titles in describing Fleming’s past relevant

183

Id.
Id.
185
Resp. 4.
186
20 C.F.R. § 404.1567(b).
187
Id.
188
Id.
189
20 C.F.R. § 404.1560(b)(2).
190
20 C.F.R. § 404.1527(e)(2).
184

22

work as a teacher’s assistant in a preschool to be “light, more than unskilled work.”191 The ALJ
concluded that Fleming was able to perform this work at the light exertional level with additional
restrictions, including that she cannot climb ladders, ropes and scaffolds, or operate dangerous
machinery.192 An ALJ must “make certain findings of fact and include them in the written decision”
when the issue of skill transferability is material to the outcome.193 Specifically, those findings of fact
include “the acquired work skills” and the “specific occupations to which the acquired work skills are
transferrable.”194 Although Fleming does not allege that the ALJ committed legal error for failure to
use a VE, we note this in the event it is determined that Fleming’s obesity has a significant impact on
her ability to perform work duties. If on remand Fleming’s obesity is, in fact, determined to have a
significant impact on her work capacity, then the ALJ may want to consult a VE.195
With respect to the ALJ’s failure to analyze Fleming’s specific duties of her past work, we
acknowledge that the ALJ did not specify the duties of a teacher’s assistant. The ALJ did note,
however, that Fleming “is capable of performing a wide range of activities in spite of her impairments
in a degree greater than alleged.”196 As noted by Fleming, the Seventh Circuit in Nolen v. Sullivan
requires an ALJ to “list the specific physical requirements of the previous job and assess, in light of
the available evidence, the claimant’s ability to perform these tasks.”197 After careful review of the
ALJ’s decision, we cannot determine how or if the ALJ analyzed the specifics of Fleming’s past work.
And, as noted, we are concerned with the ALJ’s failure to address Fleming’s obesity as a possible

191

R. at 47.
R. at 44, 47.
193
Abbott v. Astrue, 2010 WL 3075267 (7th Cir. 2010) (unpublished); see also SSR 82-41.
194
See SSR 82-41(c).
195
20 C.F.R. § 404.1560(b)(2).
196
R. at 46.
197
939 F.2d 516, 518 (7th Cir. 1991).
192

23

aggravating factor with her other impairments. While we cannot determine how this additional
information will impact Fleming’s disability determination, we find that further investigation as to
how the ALJ determined Fleming’s specific requirements as a teacher’s assistant is necessary. We,
therefore, remand the matter for the ALJ to determine the demands of Fleming’s job, and based on the
evidence available, her ability to meet them.
CONCLUSION
For the reasons set forth above, Fleming’s motion for summary judgment is granted [dkt. 18].
We, therefore, remand the case to the Social Security Administration for further proceedings
consistent with this opinion.

IT IS SO ORDERED.

ENTERED: May 10, 2011

______________________________________
UNITED STATES MAGISTRATE JUDGE
Susan E. Cox

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