Rodriguez v. Astrue
Filing
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MEMORANDUM Opinion and Order. Signed by the Honorable Jeffrey T. Gilbert on 11/30/2012. (ep, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WILLIAM RODRIGUEZ,
Plaintiff-Claimant,
vs.
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant-Respondent.
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No. 11-CV-5637
Jeffrey T. Gilbert
Magistrate Judge
MEMORANDUM OPINION AND ORDER
Claimant William Rodriguez (“Claimant”) brings this action under 42 U.S.C. § 405(g),
seeking reversal or remand of the decision by Defendant Michael J. Astrue, Commissioner of
Social Security (“Commissioner”), in which the Commissioner denied Claimant’s application for
Disability Insurance Benefits and Supplemental Security Income. This matter is before the Court
on Claimant’s motion for summary judgment or remand [Dkt.#15], and the Commissioner’s
opposing motion for summary judgment [Dkt.#17]. Claimant raises the following issues: (1)
whether the Administrative Law Judge (“ALJ”) erred in failing to analyze Claimant’s seizure
disorder in his Listing Analysis; (2) whether the ALJ failed to properly analyze evidence of
Claimant’s limitations when determining his Residual Functional Capacity (“RFC”); and (3)
whether the ALJ improperly determined Claimant’s credibility. For the following reasons,
Claimant’s motion for summary judgment is granted, and the Commissioner’s motion is denied.
This case is remanded to the Social Security Administration for further proceedings consistent
with this Memorandum Opinion and Order.
I.
BACKGROUND
A. Procedural History
Claimant initially filed applications for Disability Insurance Benefits and Supplemental
Security Income on May 27, 2008 alleging a disability onset date of September 5, 2007. R. 56.
The Social Security Administration (“SSA”) denied Claimant’s applications on September 23,
2008. R. 56. Claimant then filed a request for reconsideration, which the SSA denied on
February 13, 2009. R. 56. On March 23, 2009 Claimant requested a hearing before an ALJ.
R. 56.
On September 17, 2009, the ALJ presided over a hearing at which Claimant was
represented by an attorney. Only Claimant and a vocational expert William J. Schweihs
testified. R. 56. No medical testimony was heard. R. 56. Post-hearing, Claimant’s counsel
forwarded to the ALJ additional evidence which was added to the record. R. 56.
On March 4, 2009, the ALJ rendered a decision finding that Claimant was not disabled
within the meaning of the Social Security Act. R. 56-65. Specifically, the ALJ determined that
Claimant “has the residual capacity to perform light work, as defined in 20 CFR 404.1567(b) and
416.967(b), subject to postural limitations precluding climbing ladders, ropes, or scaffolds, or
more than occasional climbing of ramps and stairs; and also a limitation against more than
frequent handling and fingering with right upper extremity and a need to avoid concentrated
exposure to work hazards, such as unprotected heights or dangerous moving machinery.” R. 6061. The ALJ also found that a significant number of jobs existed in the national economy such
that one of Claimant’s age, education, work experience, and RFC would be able to “transfer his
knowledge of electronics components to 3,000-4,000 sales attendant jobs in the Chicago area.”
R. 64.
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Claimant filed a request for review by the Appeals Counsel. R. 11. On July 1, 2011 the
Appeals Counsel denied that request. R. 1. That left the ALJ’s decision as the final decision of
the Commissioner. Id. On November 2, 2011 Claimant filed this action for review pursuant to 42
U.S.C. §405(g).
B. Hearing Testimony – March 9, 2010
1. Claimant William Rodriguez
At the time of the hearing, Claimant was 52 years old. He is divorced from his wife and
has two children ages 25 and 18. R. 20. Claimant graduated from high school and then
graduated from DeVry Institute of Technology Trade School. R. 20. At one time, Claimant was
licensed by the State of Illinois for commercial alarm installation. R. 21. Claimant also took
courses in advanced digital theories and alarms. R. 21.
Claimant testified that most of his past work experience was as an industrial electrician.
R. 22. The job consisted of repairing industrial equipment and included heavy lifting. R. 22, 38.
Claimant testified that he sometimes had to move by himself equipment that weighed 300 or 400
pounds. R. 38. Claimant also testified that he left his job as an industrial electrician on
September 5, 2007 because of the mental breakdowns he was having during the job and the
physical pain that was impeding him from doing his work. R. 23. Claimant testified that his
bosses and some of the workers said that there was something wrong with him and that he was
not mentally fit to do the job. R. 23. After leaving the job, Claimant went to see the neurologist
Dr. Wang. R. 23. He testified that the doctor helped him in some ways but that he had limited
access to doctors because he lacked insurance. R. 24.
Claimant testified that in the last 15 years he had a number of jobs similar to his job as an
industrial electrician. R. 24. The lightest job he did was troubleshooting computer systems but it
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required a lot of thought and strained his mind. R. 38. When he worked at UPS as a maintenance
electrician, he was hired to troubleshoot about the first half of a new facility in Willow Springs.
R. 39. The ALJ reminded Claimant that he also worked as a maintenance worker for a cleaning
contractor, but Claimant testified that he could not remember that job. R. 24. When the ALJ
asked Claimant if there was any reason why he had so many jobs, Claimant replied that it was
due to his drug addiction. R. 24. Claimant testified that he has not used drugs in three and a half
years. R. 24.
Claimant testified that since he left his job as an industrial electrician he has not done any
work. R. 21. He tried doing lawn work a month prior to the hearing which involved cutting the
grass and mowing. R. 21-22. He worked for two and a half hours and then his wrists swelled up
and his lower back started hurting. R. 22. Claimant testified that he tried lawn mowing three or
four times in the past year. R. 22.
Claimant testified that he still gets seizures and that they are happening more frequently.
R. 25. He used to get a seizure once a week, but in the year before the hearing, they increased to
three a week. R. 25. Claimant also stated that even though he takes the medicine he still gets his
seizures. R. 25. In June 2009, Claimant’s medical records at the Greater Elgin Family Care
Center reveal that Claimant reported he was having seizures two to four times a week. R. 468.
(R. 62 at ALJ’s decision).
Claimant testified that he can’t always remember when he gets his seizures but friends
that live around him tell him that he still gets seizures. R. 25. Claimant testified that some
seizures are like a short circuit in his brain during which he sees nothing but a red circle and sun
and all his memory is blocked out. R. 26. Sometimes he can’t see anything. R. 26. Claimant
testified that if he goes into a store where there is a lot of light he can lose his balance and his
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eyesight. R. 26. Claimant testified that he also can get a seizure when he is under a lot of stress
and then he blanks out and is like a zombie. R. 26. Claimant testified that after he gets a seizure
it takes him about 15 minutes to recuperate and to get back to what he was doing before. R. 36.
Claimant testified that he has orthopedic problems from when he fell 20 feet to the
ground in 2004. R. 26. Claimant stated that he fell head first and when he tried to block the fall
with this hands he broke his wrist and tore a ligament on both of his elbows. R. 26. Since the fall,
Claimant’s elbows and wrists swell up and he developed severe arthritis in his wrists. R. 27.
Claimant, however, testified that he left his job for mental reasons and because of the seizures. R.
27. Claimant testified that he can lift 10 to 20 pounds but then his right wrist and both elbows
swell up and he gets severe lower back pains. R. 28. Claimant also testified that having to bend
his back or put strain on his lower back will hurt. R. 35. His back also will hurt if he lifts himself
up or if he sits for too long. R. 35. Claimant testified that he discussed his back problems with
the doctors at the Greater Elgin Family Care Center. R. 35. Claimant also testified that he went to
a doctor prior to that and the doctor did all kinds of x-rays and an analysis. R. 35. Claimant
testified that the doctor was the first one that found out that Claimant had back problems, but the
doctor was too expensive and Claimant could not afford him anymore because he has no
insurance. R. 35-36.
Claimant also testified that he can walk for about 45 minutes but has to rest. R. 28.
Claimant stated that he is taking a few medications but, except for Zoloft, he cannot remember
their names. R. 28. He testified that he sometimes forgets to take them. R. 28. Claimant testified
that the medications give him diarrhea and make him very drowsy. R. 29. Claimant stated that he
is not seeing a doctor regularly because he has no insurance. R. 29. When he has medical
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problems he goes to a free medical clinic, the Greater Elgin Family Care Center, but sometimes
it will be a month and a half before he can get to see a doctor. R. 29.
Claimant testified that he lives alone and is able to take care of himself to a certain extent.
R. 29. Once a week someone from the Greater Elgin Center comes to his house to check if he has
food, to help him with his medication, to check his apartment, to see if he is drinking or doing
any drugs and to see if he needs help with something. R. 34. Claimant testified that his neighbors
sometimes invite him to eat in their apartment. R. 35. Claimant testified that he has a difficult
time cooking. R. 29. He only makes simple meals because, if he tries to do anything difficult, he
makes a mess and gets confused, so he stays away from doing anything that requires a lot of
thinking. R. 30. Claimant testified that there is a store four blocks from his home to which he can
walk. R. 30. He does not go the store alone to buy groceries, and if he needs to go, his friends
will take him. R. 30. Claimant also testified that he is sometimes able to do the laundry but only
when the amount is very little because he can’t carry a lot. R. 31. Claimant also testified that he
once left the stove on. R. 34. He also left the water running which twice flooded the apartment
downstairs and he came close to being kicked out of his apartment. R. 34. Claimant testified that
he sometimes leaves the doors to his apartment open when he leaves the house. R. 34.
Claimant testified that the government is paying for his housing. R. 31. Claimant also
testified that he does not have a driver’s license because a few years ago he was caught speeding,
and his license was taken away. R. 31. He spends most of his time during the day visiting
friends, watching the news and reading the Bible or magazines. R. 31. Claimant testified that
only sometimes is he able to get through an article when reading a magazine. R. 34. The majority
of the time he just glances through and reads the important parts. R. 34-35. If he reads too much,
more than 15 or 20 minutes, he gets bogged down and mentally tired. R. 35. Claimant testified
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that he takes naps during the day, sometimes three of them, and has problems sleeping at night.
R. 33. He takes naps when he is getting volatile, stressed out and cannot cope. R. 33. Claimant
also testified that he has panic attacks when he is in a real stressful situation or when he is being
pushed or being yelled at. R. 33.
Claimant testified that he attends counseling about four or five hours a week. R. 32.
Although the counseling is helping him try to deal with situations, overall things are getting
worse. R. 32. Claimant also testified that he is not able to get the full medical attention that he
needs. Claimant testified that he had a difficult time attending the hearing and does not have the
access to help that he needs. R. 32-33.
2. Vocational Expert’s Testimony
William Schweihs is a vocational expert (“VE”) and testified at the hearing. He described
Claimant’s past relevant work as a skilled worker, essentially a maintenance mechanic for
electrical and electronic equipment. R. 41. He also testified that most of Claimant’s past work
was at the heavy to very heavy range of physical exertion although there was a job or two at the
lighter range such as when he worked as a custodian and janitor for the school district. R. 41.
The VE testified that within the last 15 years there were only three years (2003, 2004 and 2005)
in which Claimant’s earnings did not reach substantial gainful activity levels. R. 41. He testified
that Claimant had some two dozen jobs early on in the past 15 years. R. 41. Only about a fourth
of Claimant’s jobs were full time; the rest were part time. R. 41.
The ALJ asked the VE what type of work a person with Claimant’s work experience, age,
education (three years beyond high school), and residual functional capacity, could perform, if
any, with the following limitations: working only in light sedentary work; avoiding climbing
ladders, ropes of scaffolds or more than occasional climbing of ramps and stairs; avoiding
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concentrated exposure to hazard, and only frequent handling and fingering with the right hand.
R. 42-43. The VE testified that based on the hypothetical given by the ALJ, an individual with
the limitations described could perform only the cleaning type of work such as the custodian or
janitor for a school district. R. 43. Claimant’s other past work would have been beyond the light
range of physical exertion. R. 43.
The ALJ then asked the VE if there would be any transferable acquired work skills or
semi-work skills. R. 43. The VE testified that knowledge of electrical and electronic components
and procedures followed within the industries would transfer to semi-skilled positions, such as
sales attendant, counter attendant, full-sale and retail hardware and electronic supply stores. R.
43. The VE added that in the metropolitan of Chicago, at least 3-4,000 of those jobs are at the
light range of physical exertion. R. 43.
The ALJ then asked the VE a follow-up question modifying the hypothetical and adding
additional restrictions: a moderate limitation in the ability to maintain attention and concentration
for extended periods; a moderate limitation in the ability to complete a normal work day and
work week without interruptions from psychologically-based symptoms and a moderate
limitation in the ability to perform at a consistent pace without an unreasonable number and
length of rest periods. R. 43-44. The VE responded that based on the revised hypothetical with
the additional limitations there would still be 3-4,000 jobs at the light range of physical exertion
which the individual would be able to perform. R. 44.
For the next hypothetical, the ALJ instructed the VE to assume that Claimant’s testimony
at the hearing is fully credible and an accurate depiction of the hypothetical person’s capabilities
and limitations, and asked the VE what the vocational outlook of that person would be. R. 44.
The VE responded that he does not believe that a person would be able to work full-time
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competitive positions or really any positions with the symptoms and the limitations that Claimant
described, in particular the memory problems; the inability to cope at times; having to take naps
during the day; having panic attacks and episodes of heavy memory blackout; having heavy
duress for 15 minutes to recover from each episode at times; an inability to drive or maintain a
schedule; or to repetitively use one’s hands because of the swelling. R. 44.
C. Medical Evidence
1. Medical Offices of Michael D. Gross. M.D., S.C.
On July 26, 2006, Dr. Gross examined Claimant. R. 394. Dr. Gross indicated that
Claimant injured his right wrist and hand and his lower back, at work, on or about November 5,
2004. R. 398. Claimant fell, head first, approximately 16 feet. R. 398. Claimant hit his chest,
bounced, and hit the right side of his head twice, and he was unconscious for about two minutes.
R. 398. Claimant was taken to the Sherman Hospital emergency room. R. 398. Claimant did not
have insurance so he could not get physical therapy. R. 398. Claimant also had memory
problems following the injury for about eight months. R. 398. Claimant had to go to the hospital,
about four times, due to severe low back and rib pain, and memory loss. R. 398. A complete
inspection of the right hand and wrist revealed atrophy of the right abductor pollicus brevis
muscle; restriction of the right wrist motions, as compared to the left, and nerve dysfunction. R.
398-399. X-rays of the right hand and wrist showed bone deformity with osteopenia of the carpal
bones. R. 399.
A comprehensive examination revealed that all low back motions were limited. R. 399.
The examination also revealed diminished sensation on the lateral aspect of the right thigh,
indicating nerve disfunction. R. 399. Dr. Gross assessed that Claimant’s right wrist and lower
back injuries were causally related to the accident that occurred on November 5, 2004. Dr. Gross
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concluded that Claimant has a major loss in the use of the right wrist, a moderate loss in the use
of the right upper extremity and a moderate loss of the use of the man as a whole, on an
industrial basis. R. 400.
2. Midwest Physical Therapy
Claimant was seen in physical therapy from January 16, 2007 through February 19, 2007
for a total number of 13 treatments. R. 263. On January 16, 2007 Claimant was examined by Dr.
Snehal Patel. R. 273. Dr. Patel indicated that Claimant has arthritis in his right wrist along with
carpal tunnel syndrome in his left wrist complex. R. 273. He also indicated that Claimant
suffered from a general ache. R. 273. Claimant rates it at its worst at 6/10. R. 273. On February
2, 2007, Claimant was examined by Dr. Julie Plautz. R. 271. Dr. Plautz’s report indicated that
although Claimant demonstrates mild progression he continues to demonstrate a significant
fatigue reaction with bilateral upper extremities with any repetitive activity, which increases pain
in his forearms. R. 271. Dr. Plautz also noted that Claimant demonstrates significant limitations
with his ability to complete work related tasks and to complete activities of daily life without
pain. R. 271. On June 25, 2007, Dr. Derek Shields wrote a concluding report that stated that
Claimant demonstrated mild progression with therapeutic exercise but continued to report
fatigue, pain and difficulty with repetitive activity. R. 263.
3. Chicago Institute of Neurosurgery and Neuroresearch
On May 22, 2007, Dr. Charles Wang examined Claimant. R. 291. Dr. Wang noted that
Claimant suffered from severe forgetfulness, missed appointments and could not fulfill his jobs.
R. 291. Claimant returned for a follow-up visit on June 8, 2007. R. 288. Dr. Wang’s notes dated
June 18, 2007, indicated that an EEG performed on May 22, 2007, revealed sharp waves on the
left temporal area. R. 288. On May 30, 2007, Claimant had an MRI of the brain which revealed a
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few punctate abnormal T2 signals in the subcortical white matter. R. 288. Dr. Wang concluded
from Claimant’s test results and examination that Claimant has a history of a concussion with
some post-concussion syndrome. R. 288. Further, Claimant suffers from memory loss and
episodic incoherence and other episodic symptoms, suggesting incoherence and spacing out or
zoning out. R. 288. Dr. Wang stated that he thinks that Claimant has a complex partial seizure
disorder and recommended Claimant refrain from driving, swimming or climbing ladders. R.
288-289.
On August 5, 2009, Claimant returned to see Dr. Wang. R. 487. Dr. Wang opined that he
had not seen Claimant since June 8, 2007. R. 487. Claimant told Dr. Wang that he was taking
Trileptal but had stopped taking the medication because he wanted to continue working as an
electrician without the side effect of possible drowsiness. R. 487. Dr. Wang also noted that
Claimant had problems with memory and his mind was acting too slowly. R. 487. Because he
sometime slept for 11 hours, Claimant was diagnosed with depression and prescribed Zoloft. R.
487. Further, Dr. Wang’s report indicated that two and a half to three months prior to Claimant’s
August 5, 2009 visit, Claimant began to have increased spacey symptoms and zone out for 10
seconds. R. 487. At one time, Claimant’s mind was blank for about 15 minutes. R. 487. Claimant
stated that he had seen a doctor who prescribed Dilantin 100 mg t.i.d. However, he had not
started or filled a prescription and is therefore not on any anticonvulsant. R. 487. Dr. Wang again
advised Claimant not to drive, climb any ladders or swim alone. R. 488.
4. Sherman Hospital
There are Sherman Hospital records for Claimant dating from February 7, 2007 through
August 27, 2007. R. 301-307. The records dated February 7, 2007 indicated evidence of a
bilateral tunnel syndrome of a mild degree. R. 306. Records dated April 24, 2007 indicated that
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Claimant’s CT scan of the brain was normal. R. 306. Dr. Stephen Grossman, the treating
physician, noted that he does not see any cause for the patient’s headaches on this study. R. 306.
Records dated May 30, 2007 indicated that Claimant had an MRI scan which showed that a few
punctuate abnormal T2 signal foci were visualized scattered in the subcortical white matter in
both cerebral hemispheres. R. 304. It also showed a large left maxillary retention cyst. R. 305.
5. Associates in Orthopaedic Surgery
Dr. S.W. Mox examined Claimant in 2007 and 2008. R. 331-332. Records dated January
1, 2007 indicated that Claimant suffers from right wrist arthritis, post traumatic left wrist strain,
right carpal tunnel syndrome and left carpal tunnel syndrome. R. 332. On February 2, 2007, Dr.
Mox assessed that Claimant is still having carpal tunnel symptoms in both hands, worse on the
right than on the left. R. 332. Dr. Mox also indicated that Claimant may continue working as
tolerated, wearing wrist splints at night. R. 332. On February 26, 2007, Dr. Mox reported that
Claimant’s pain is mostly as a result of the arthritic area in the wrist and that Claimant has
trouble with lifting at work. R. 331. Records dated April 3, 2007 indicated that Claimant has
definitely improved in terms of both elbows and the right wrist. R. 33. Dr. Mox examined
Claimant again on May 12, 2008 and reported that Claimant still complained of pain over the
wrist area and both lateral epicondyles. R. 331. Dr. Mox’s assessment was that Claimant has
mild right wrist arthritis and mild bilateral lateral epicondylitis. R. 331. Dr. Mox recommended
that no work restrictions be put on Claimant at any time. R. 331.
6. Ecker Center for Mental Heath – Comprehensive Mental Health Assessment
On December 18, 2008, Dr. Alicia Martin examined Claimant. R. 371-382. Her
assessment report indicated that Claimant has a major medical and pain management problem for
which he has already made connections with a local health clinic. R. 376. The assessment report
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also indicated that Claimant has a history of head injury. R. 381. Dr. Martin noted that Claimant
suffers from mood disorders, cognitive disorders and pain disorders associated with his general
medical condition. R. 381. She also indicated that Claimant would benefit from medication but
prefers not to be on an antidepressant. R. 381. Claimant also has polysubstance dependence
(alcohol, heroin, cocaine) in sustained full remission. R. 381.
On January 22, 2009, Dr. Martin performed a psychiatric evaluation on Claimant. R. 406.
Dr. Martin’s report indicated that Claimant testified that he had used drugs, which resulted in his
divorce. R. 406. Claimant also stated that he saw a neurologist in 2007 due to a worsening of his
memory problems and seizures. R. 406. However, he had taken the prescribed medicine only for
a short period of time because he was unable to pay the cost and because of drowsiness. R. 406.
Claimant testified that his memory has gotten worse and that he does not remember the names of
actors and others and how to do his job as an electrician. R. 406. Claimant also stated that he has
problems with concentration and focusing. R. 406.
Dr. Martin assessed that Claimant has Mood Disorder, NOS; Cognitive Disorder, NOS;
and Polysubstance Dependence, in sustained full remission. R. 408. Dr. Martin testified that
Claimant suffers from a history of head trauma; a seizure disorder; a pain disorder, associated
with medical condition; arthritis; is legally blind in his right eye and has stomach problems. R.
408. Claimant also has problems with primary support, unstable housing, financial difficulties,
unemployment and lack of health insurance. R. 408. Dr. Martin opined that Claimant would
benefit from medication but that at this time Claimant testified that he prefers not to be on an
antidepressant. R. 408.
On March 12, 2009, Claimant had a follow up visit with Dr. Martin. R. 411. Claimant
stated that he had decided to follow treatment recommendations, particularly taking
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antidepressants to help relieve depression. R. 411. Claimant agreed to take Zoloft 25 mg daily for
6 days and increase it to 50 mg daily thereafter. R. 411. However, Dr. Martin’s notes from April
30, 2009 indicated that Claimant only started taking Zoloft 25 mg on April 30, 2009, even
though the prescription was given to him on March 2, 2009. R. 415. She also noted that Claimant
indicated that he did not experience any intolerable side effects. R. 415.
7. Consultative Examination for the Bureau of Disability Determination Services
On July 31, 2008, Dr. Roopa K. Karri examined Claimant for the Bureau of Disability
Determination Services (“DDS”). R. 336. Dr. Karri noted that Claimant was able to get on and
off the exam table and could walk 50 feet without support. R. 336. Claimant could also make
fists and oppose fingers, turn doorknobs, write and pick up coins. R. 336. Dr. Karri concluded
that Claimant has a history of arthritis in his hands and tendonitis in the elbows with decreased
strength in the right hand. R. 336. Dr. Karri further noted that Claimant has low back pain with
normal range of motion and a history of anxiety and memory problems. R. 336. Dr. Karri
determined that Claimant has a questionable seizure disorder. R. 336. Claimant gets seizures one
to four times a month. R. 334. When Claimant gets a seizure he feels incoherent for about 30
seconds to 2 minutes. R. 334. Dr. Karri opined that Claimant had memory problems for four
years and loses his sense of direction all of a sudden. R. 334. Dr. Karri also noted that Claimant
has a history of right eye strabismus and is legally blind. R. 336.
On August 26, 2008, Dr. Barbara F. Sherman also examined Claimant for the DDS. R.
340. Dr. Sherman’s summary and diagnosis report indicated that Claimant alleges that since his
fall at work he has suffered from seizures and behavioral change as well as a perception of
cognitive decline. R. 343-342. The mental status examination showed Claimant to be fully
oriented. R. 344. Claimant’s speech was clear and coherent. R. 344. Claimant also acknowledged
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signs of clinical depression. R. 344. The cognitive screening suggested deficits for attentional
focus, basic fund of information and conceptual thought. R. 344. Claimant’s judgment is
impaired when he is very anxious. R. 344.
8. State Agency Physicians
Records dated September 12, 2008 indicated that although Claimant reported difficulty
concentrating, his Activities of Daily Living (“ADL”) form was extensively completed with
extra pages added for details. R. 357. The ADL form is hand-written despite Claimant’s
statements of difficulty with pain in his wrists. R. 357. Dr. Lionel Hudspeth, Psy.D., the
examining doctor, opined that there is no indication of any treatment nor any medication for a
mental disorder. R. 357. Dr. Hudspeth also noted that Claimant’s cognition/memory and thought
processes are all intact. R. 357. There is some indication that Claimant suffers from some
anxiety. R. 357.
Records dated September 22, 2008 indicated that Claimant alleges seizures since his fall
in 2004, stating that he has them up to 4 times a month. R. 360. The examining doctor, Dr.
Charles Kenney, reported that Claimant reports constant pain in his hands and forearms that
causes difficulty with dressing and lifting “much of anything.” R. 362. Dr. Kenney determined
that Claimant’s statements of limitations are only partially credible. R. 362.
On February 6, 2008, Dr. Calixto Aquino examined Claimant. R. 386-393. Dr. Aquino
noted that Claimant’s physical limitations as indicated by Claimant appeared somewhat
consistent with current objective evidence. R. 393. Claimant indicated limitations in lifting,
squatting, bending, standing, reaching, walking, sitting, kneeling, stairs climbing, seeing, and
using his hands in addition to multiple mental limitations. R. 393. Dr. Aquino opined that
Claimant appears only partially credible because the severity of the physical impairments is not
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fully supported by the medical record. R. 393. Dr. Aquino also noted that Claimant is noted to be
partially credible on the mental portion of the claim and thus, appears to be partially credible
overall. R. 393.
D. The ALJ’s Decision – December 4, 2009
After a hearing and review of the medical evidence, the ALJ determined that, from
September 5, 2007 through the date of his decision, Claimant was not disabled, as defined by the
Social Security Act. R. 64. The ALJ evaluated Claimant’s application under the required fivestep sequential evaluation process. R. 57-65. At step one, the ALJ found that Claimant has not
engaged in substantial gainful activity since September 5, 2007, the alleged onset date of
disability. R. 59. At step two, the ALJ determined that Claimant has severe impairments of
osteoarthritis, bilateral carpal tunnel syndrome, and histories of epicondylitis, and a concussion
with partial complex seizures. R. 59.
At step three, the ALJ determined that Claimant did not have an impairment or
combination of impairments that meets or medically equals one of the listed impairments in 20
C.F.R. 404.1520(d). R. 60. The ALJ determined that Claimant has not had a severe mental
impairment on or after the alleged onset of disability, noting that the record fails to establish
more than minimal limitations in his ability to perform basic mental work activities. R. 59. In
making this determination, the ALJ considered Dr. Martin’s psychiatric evaluation of Claimant
in January 2009 and in her monthly meetings with him thereafter. R. 59. The ALJ also found
relevant to this determination the fact that Claimant has not sought psychiatric treatment in the
past and was not taking medication for mood instability despite evidence that medication
improves his conditions. R. 59. In addition, the ALJ noted that Claimant reads the newspaper,
does errands, cares for his personal needs, makes sandwiches and frozen dinners, shops 2 hours
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at a time for food, handles money, does laundry, uses public transportation, watches television,
likes to read the Bible and attends church regularly. R. 60. The ALJ further indicated that
Claimant has a history of substance abuse in remission. R. 59. Claimant was noted to have
sought out and purchased Vicodin through any means and “without evidence of a readiness to
change.” R. 59.
The ALJ concluded that because Claimant’s medically determinable mental impairment
causes no more than “mild” limitation in the three functional areas (set out in the disability
regulations for evaluating mental disorders and in section 12.00C of the Listing of Impairments)
and has not caused even one episode of decompensation of extended duration, Claimant does not
have a severe mental impairment. R. 60. Thus, Claimant’s impairments in the context of the
Listings do not manifest clinical signs and findings that meet the specific criteria of any of the
Listings. R. 60.
The ALJ then proceeded to consider Claimant’s RFC1 and found that the Claimant has
the RFC to perform light work, “subject to postural limitations precluding climbing ladders,
ropes, or scaffolds, or more than occasional climbing of ramps and stairs; and also a limitation
against more than frequent handling and fingering with right upper extremity and a need to avoid
concentrated exposure to work hazards, such as unprotected heights or dangerous moving
machinery.” R. 60-61. In making the RFC determination, the ALJ indicated that he considered
Claimant’s symptoms to the extent that they could reasonably be accepted with the objective
medical evidence and other evidence as required by 10 C.F.R. 404.1529 and 416.929 and SSRs
96-4p and 96-7p. R. 61. The ALJ also indicated that he considered opinion evidence in
1
The RFC is the most that a claimant can do despite the effects of her impairments. 20 C.F.R.
404.1545(a).
17
accordance with the requirements of 20 C.F.R. 404.1527 and 416.927 and SSRs 96-2p, 96-5p
and 06-3p. R. 61.
The ALJ considered Claimant’s head injury and right wrist fracture. The ALJ adopted the
opinion of Dr. Roopa K. Karri, the DDS consultant, who reported that Claimant could make fists
and oppose fingers, turn doorknobs, write and pick up coins. R. 61. The record shows that
Claimant’s back examination and neurological and gait examinations were within normal limits
and that the treating orthopedist placed no work restrictions on the claimant. R. 61-62. The ALJ
then proceeded to consider Claimant’s medical seizures. In May 2007, Claimant was evaluated at
the Chicago Institute of Neurosurgery and Neuroresearch by Dr. Charles C. Wang. R. 62. An
EEG indicated a complex partial seizure disorder. R. 62. Dr. Wang’s impression was that
Claimant suffered from episodic symptoms that caused incoherence and “spacing out” or
“zoning out.” R. 62. At a consultative examination in July 2008, Claimant was assessed by Dr.
Karri with a “questionable seizure disorder.” R. 63. In August 2009, following Claimant’s visit,
Dr. Wang was asked “if seizure disorder exists, indicate frequency.” R. 62. Dr. Wang replied
with a question mark and added that the Claimant would need a functional capacity examination
to determine limitations.
Claimant repeatedly reported suffering from recurring seizures. In July 2008, at the
consultative examination, Claimant reported 1 to 4 seizures a month, which occurred while
driving, when he felt incoherent for about 30 seconds to 2 minutes. R. 63. On June 15, 2009,
approximately a year after the consultative exam, Claimant reported that his depression was well
controlled but he was having seizures 2 to 4 times a week and did not know the names of his
medications. R. 62. The record shows that at this time Claimant was to start Dilantin and advised
not to drive. R. 62.
18
The ALJ found Claimant’s allegations regarding the limiting effects and the severity of
his symptoms only partially credible and determined that Claimant retains the ability to work at a
light level of exertion – as restricted by certain limitations noted in the opinion. R. 63. The ALJ
then noted that although medication controls Claimant’s seizure disorder and depression,
Claimant consistently failed to take the required medications. R. 62-63. Claimant reported
having stopped taking the medication back in July 2007 because it made him drowsy and
because he wanted to continue with his electrician work. R. 62.
At step four, the ALJ concluded that Claimant is able to perform past relevant work. R.
63. In making this determination, the ALJ considered the vocational expert’s testimony that a
hypothetical person having claimant’s vocational factors, work experience, and the residual
functional capacity found for him would be able to perform past work as a school custodian. R.
63. The vocational expert testified that Claimant’s work as a maintenance mechanic and
maintenance trouble shooter of electronic equipment was skilled and very heavy. R. 63.
At step five, the ALJ found that there were jobs that exist in significant numbers in the
national economy that Claimant can perform. R. 63. In reaching this determination, the ALJ gave
consideration to Claimant’s residual functional capacity, age, education, and work experience, in
conjunction with the Medical-Vocational Guidelines at 20 C.F.R. Part 404, Subpart P, Appendix.
R. 63. The ALJ also accepted the testimony of the vocational expert that an individual with the
claimant’s right-handedness, age, education, work experience and residual functional capacity
could transfer his knowledge of electronics components to 3,000-4,000 sales attendant jobs in the
Chicago area. R. 64. Thus, the ALJ concluded that Claimant was not disabled under the Social
Security Act from September 5, 2007 through at least the date of this decision. R. 64.
19
II.
LEGAL STANDARD
A. Standard of Review
The “findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive.” 42 U.S.C. §405(g). A decision by an ALJ becomes the
Commissioner’s final decision if the Appeals Council denies a request for review. Sims v. Apfel,
530 U.S. 103, 106-107 (2000). Under such circumstances, the district court reviews the decision
of the ALJ. Id. Judicial review is limited to determining whether the decision is supported by
substantial evidence in the record and whether the ALJ applied the correct legal standards in
reaching her decision. Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). A “mere
scintilla” of evidence is not enough. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). Even
when there is adequate evidence in the record to support the decision, however, the findings will
not be upheld if the ALJ does not “build an accurate and logical bridge between the evidence and
the result.” Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008). If the Commissioner’s decision
lacks evidentiary support or adequate discussion of the issues, it cannot stand. Villano v. Astrue,
556 F.3d 558, 562 (7th Cir. 2009).
Though the standard of review is deferential, a reviewing court must “conduct a critical
review of the evidence” before affirming the Commissioner’s decision. Eichstadt v. Astrue, 534
F.3d 663, 665 (7th Cir. 2008). It may not, however, “displace the ALJ’s judgment by
reconsidering facts or evidence, or by making independent credibility determinations.” Elder v.
Astrue, 529 F.3d 408, 413 (7th Cir. 2008). Thus, judicial review is limited to determining whether
the ALJ applied the correct legal standards and whether there is substantial evidence to support
20
the findings. Nelms, 553 F.3d at 1097. The reviewing court may enter a judgment “affirming,
modifying, or reversing the decision of the [Commissioner], with or without remanding the cause
for a rehearing. 42 U.S.C. § 405(g).
B. Disability Standard
Disability insurance benefits are available to a claimant who can establish that she is
under a “disability” as defined in the Social Security Act. Liskowitz v. Astrue, 559 F.3d 736, 73940 (7th Cir. 2009). “Disability” means an “inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can be expected .
. . to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). An
individual is under a disability if she is unable to do her previous work and cannot, considering
her age, education, and work experience, partake in any gainful employment that exists in the
national economy. 42 U.S.C. § 423(d)(2)(A). Gainful employment is defined as “the kind of
work usually done for pay or profit, whether or not a profit is realized.” 20 C.F.R. § 404.1572(b).
A five-step sequential analysis is utilized in evaluating whether a claimant is disabled. 20
C.F.R. § 404.1520(a)(4)(i-v). Under this process, the ALJ must inquire, in the following order:
(1) whether Claimant is engaged in substantial gainful activity; (2) whether Claimant has a
severe impairment; (3) whether Claimant’s impairment meets or equals a listed impairment; (4)
whether Claimant can perform past relevant work; and (5) whether Claimant is capable of
performing other work. Id. Once Claimant has proven she cannot continue her past relevant work
due to physical limitations, the ALJ carries the burden to show that other jobs exist in the
national economy that Claimant can perform. Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir.
2007).
21
III. DISCUSSION
Claimant argues that the ALJ’s decision denying his applications for Disability Insurance
Benefits and Supplemental Security Income should be reversed or remanded because it contained
errors of law and is not supported by substantial evidence. Claimant raises the following issues in
support of his motion for summary judgment: (1) whether the ALJ failed to analyze Claimant’s
seizure disorder in his Listing Analysis; (2) whether the ALJ failed to properly analyze evidence
of Claimant’s limitations when determining his RFC; and (3) whether the ALJ improperly
determined Claimant’s credibility.
A. The ALJ Failed To Analyze Claimant’s Seizure Disorder In His Listing Analysis
When making a Listing Analysis, the ALJ must determine whether the claimant’s
impairments or combination of impairments meets or medically equals the criteria of an
impairment listed in 20 CFR Part 404, Subpart P, Appendix 1. A partial complex disorder such
as the one Claimant was diagnosed with should be considered under Listing 11.03, which
provides that a claimant who experienced seizures more than once weekly in spite of at least
three months of treatment meets or equals the Listing. 20 C.F.R., Part 404, Subpart. P, Appendix.
1 §11.03.
In considering whether a claimant’s condition meets or equals a listed impairment, “an
ALJ must discuss the listing by name and offer more than a perfunctory analysis of the listing.”
Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004). An ALJ “must minimally articulate his
reasons for crediting or rejecting evidence of disability.” Clifford v. Apfel, 227 F.3d 863, 870 (7th
Cir. 2000). An ALJ, however, “need not specifically articulate why a claimant falls short of a
particular listing unless the claimant has presented substantial evidence that she meets or equals
the listing.” Alesia v. Astrue, 789 F. Supp.2d 921, 932 (N.D. Ill. 2011). In Alesia, the court held
22
that because the claimant provided only scant explanation of how she equals a specific listing
and her initial brief failed to identify any specific listing the ALJ should have considered, the
claimant failed to present substantial evidence that she meets or equals the listing. Alesia, 789 F.
Supp.2d at 933. “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Barnett, 381 F.3d at 668.
Here, the ALJ’s Listing Analysis is cursory at best, or so it appears at least from the
manner in which the ALJ articulated that analysis in his written decision. The ALJ failed to
identify by name the specific listing he considered as relevant to Claimant’s partial complex
seizure disorder. Even if we were to infer from the ALJ’s written decision that he correctly
recognized the applicability of Listing 11.03 to Claimant’s seizure disorder, however, his one
sentence Listing Analysis fails to explain why Claimant fell short of the listing. R. 60. The
Commissioner argues that, as in Alesia, the ALJ did not need to specifically articulate why
Claimant fell short of Listing 11.03. Commr.’s Br. [Dkt.#18], at 4. Here, however, in contrast to
Alesia, not only does Claimant’s initial brief identify the specific listing the ALJ should have
considered, but the record also contains some evidence in support of Claimant’s claim that his
partial complex seizure disorder meets the listing. The record establishes that, at least in 2009,
Claimant’s seizures increased in frequency and occurred two to four times a week, even when
Claimant was compliant with medication. R. 25-26, R. 468.
In Barnett, the Seventh Circuit noted that even though the record “does not establish an
average of one seizure per week over the entire course of the treatment” it does “establish an
upward trend in the frequency and severity of Barnett’s seizures” and the ALJ was wrong to
disregard it. 381 F.3d at 669. Similarly, in the instant case, although the record does not
establish an average of one seizure per week over the entire course of Claimant’s treatment, it
23
does contain evidence that, as of 2009, Claimant’s seizures increased in their frequency to more
than once a week. The ALJ’s failure to articulate any legitimate reason for his decision to
disregard evidence establishing an increase in Claimant’s seizures makes it impossible for us to
know whether he considered it in his analysis and, if he did, what his reasons were for rejecting
it.
The Commissioner also argues that Claimant had not been compliant with prescribed
treatment measures and therefore failed to satisfy the listing criteria. Commr.’s Br. [Dkt.#18], at
6. However, “evidence of non-compliance proves nothing; what matters is whether there is a
link between the noncompliance and the ongoing seizure episodes.” Steele v. Barnhart, 290 F.3d
936, 941 (7th Cir. 2002). Additionally, an ALJ must take into consideration Claimant’s reasons
for failing to take medications such as his inability to cover associated costs and the powerful
side effects of the drugs. Spiva v. Astrue, 628 F.3d 346, 351 (7th Cir. 2010); Craft v. Astrue, 539
F.3d 669, 679 (7th Cir. 2008).
Here, the ALJ did not properly explore the cause of Claimant’s non-compliance with his
prescribed medication. Evidence in the record establishes that Claimant could not cover the
associated costs of treatment because he lacked health insurance and that the medications made
him very drowsy. R. 29, 341, 344; 379-80, 398; 412; 453. The ALJ failed to address these factors
in mitigation of Claimant’s non-compliance with medication. The Commissioner further argues
that although the record establishes that Claimant did not have health insurance, Claimant was
able to obtain free medical care at the Elgin Family Care Center. Commr.’s Br. [Dkt.#18], at 1.
While the record establishes that Claimant visited the Elgin Family Care Center on multiple
occasions, it does not establish that Claimant’s access to free medical care allowed him to cover
the costs associated with filling his prescriptions. R. 280-85; R. 465-81.
24
For all of these reasons, we conclude that the ALJ’s finding that Claimant’s impairments
fail to meet or equal a listed impairment is not supported by substantial evidence. This matter is
therefore remanded for further proceedings consistent with this Opinion.
B. On Remand, The ALJ Should Revisit The Issue Of Claimant’s Residual Functional
Capacity
At the fourth step of the requisite five step disability analysis, the ALJ is required to
determine the RFC of a claimant. See 20 C.F.R. §404.1520(a)(4)(e). An ALJ makes a RFC
determination by weighing all the relevant evidence of record. 20 C.F.R. §404.1520(a)(1). Here,
the ALJ found that Claimant had the RFC to perform light work (as defined by the regulations)
subject to postural limitations precluding climbing ladders, ropes, or scaffolds, or more than
occasional climbing of ramps and stairs. R. 60. He also found a limitation against more than
frequent handling and fingering with right upper extremity and a need to avoid exposure to
concentrated work hazards. R. 60-61.
Claimant argues that the ALJ’s decision did not include an adequate analysis of several of
Claimant’s impairments and their limitations. Claimant’s Br. [Dkt.#16], at 6. An ALJ must
articulate his analysis at some minimal level to permit an informed review of his decision. While
an ALJ is not required to address every piece of evidence or testimony, an “ALJ may not ignore
an entire line of evidence that is contrary to her findings.” Zurawski v. Halter, 245 F.3d 881, 888
(7th Cir. 2001).
Here, the ALJ’s RFC analysis only mentions the medical evidence favoring the denial of
benefits. It, therefore, is not possible to determine whether the ALJ considered the record as a
whole. Although ample evidence in the record established Claimant’s right eye blindness, the
ALJ failed to include any discussion or analysis of Claimant’s right eye blindness in his RFC
determination. R. 291, 361, 483. The ALJ also did not expressly analyze the full impact of
25
Claimant’s bilateral carpel tunnel syndrome and arthritis. The ALJ relied on Dr. Karri’s report
that Claimant could make fists, turn doorknobs, write and pick up coins. R. 61. He also
mentioned Dr. Mox’s report which noted that Claimant showed excellent range of motion of the
elbows, excellent right wrist motion, and no motor atrophy in the hands or elbows, and placed no
work restrictions on Claimant. R. 61-62. However, it appears the ALJ failed to consider
seemingly contrary evidence such as Claimant’s complaints of constant pain and swelling in both
of his hands and wrists, and his difficulty in lifting objects and completing work-related tasks. R.
26-28, 178-179, 189, 193, 195, 197. Medical evidence in the record establishes that Claimant
suffers from carpal tunnel syndrome and arthritis in his right wrist and continues to demonstrate
a significant fatigue reaction in his bilateral upper extremities with any repetitive activity. R.
263, 271, 276-277, 307, 334, 400, 471. Thus, the ALJ ignored or at least failed to acknowledge
an entire line of evidence which appears contrary to his findings and failed to explain why the
evidence in the record, which appears to favor Claimant, was overcome by the evidence on
which the ALJ relied.
Additionally, the ALJ’s RFC determination neglected to discuss whether and to what
extent Claimant’s memory loss placed any limitations on his ability to work. The record
establishes that Claimant constantly forgets things, has difficulty completing tasks, is limited in
preparing a full course meal because he cannot think properly and cannot read much because he
forgets what he reads. R. 189-93, 207, 222. Claimant also testified that he left the water running
in his apartment, twice flooding the apartment downstairs, that he once forgot the stove on, and
that he leaves the doors to his apartment open when he leaves the house. R. 34. Also here, the
ALJ did not provide any legitimate reason for discrediting Claimant’s testimony regarding his
memory loss and the effect this has on his ability to carry out his daily activities.
26
Finally, the ALJ’s RFC determination does not include any discussion of the effects of
Claimant’s partial complex seizure disorder on his ability to carry out his daily activities and
work related tasks. Claimant testifies that his seizures cause him to become incoherent, blank
out, act like a zombie and lose consciousness. R. 26, 208. The Commissioner argues that
Claimant’s seizures considered separately are not of sufficient severity to be disabling. Commr.’s
Br. [Dkt.#18], at 4. But the “regulations require the agency to consider the combined effect of all
the claimant’s ailments, regardless of whether any such impairment, if considered separately,
would be of sufficient severity.” Clifford, 227 F.3d at 873; see 20 C.F.R § 1523.
For all these reasons, we cannot find that the ALJ’s RFC determination is supported by
substantial evidence on the present record. It is thus necessary to remand the case to allow the
ALJ further opportunity to explain the basis for his RFC determination.
C. On Remand, The ALJ Should Revisit The Issue Of Claimant’s Credibility
Claimant argues that the ALJ improperly evaluated his credibility and that the ALJ’s
findings lack the support of substantial evidence. When a claimant’s statements about the
intensity, persistence, or functionally limiting effects of pain or other symptoms are not
substantiated by the objective medical evidence, the ALJ must evaluate the credibility of a
claimant’s testimony based on the record as a whole. SSR 96-7p. The ALJ is in the best position
to determine the credibility of witnesses, and this Court affords the ALJ’s credibility findings
special deference. Bell v. Apfel, 221 F.3d 1338 (7th Cir. 2000). However, it is not sufficient for
the ALJ to make a single conclusory statement that a claimant’s allegations are not credible. SSR
96-7p. The basis for an ALJ’s credibility determination 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 the reasons for that weight.” Zurawski, 245 F.3d at 888.
27
When it comes to assessing an ALJ’s credibility determination, a court must first
determine whether the ALJ’s determination regarding a claimant’s credibility is “sufficiently
specific” and supported by evidence in the record. Id. “Both the evidence favoring the claimant
as well as the evidence favoring the claim's rejection must be examined, since review of the
substantiality of evidence takes into account whatever in the record fairly detracts from its
weight.” Id. Thus, an ALJ’s credibility determination will not be sustained by a court when the
ALJ does not consider “the entire case record, including the objective medical evidence, the
individual’s own statements about symptoms, statements and other information provided by
treating or examining physicians or psychologists and other persons about the symptoms and
how they affect the individual, and any other relevant evidence in the case record.” SSR 96-7p.
When an ALJ’s credibility determination is sufficiently specific, courts will then review it
deferentially, overturning it only if it is patently wrong. Skarbeck v. Barnhart, 390 F.3d 500,
504-05 (7th Cir. 2004); Zurawski, 245 F.3d 888; Powers v. Apfel, 207 F.3d 431, 435 (7th Cir.
2000).
Here, we lack a sufficient basis to sustain the ALJ’s credibility determination based on
the current record. The ALJ found Claimant only “partially credible” yet failed to provide
specific reasons for his finding on credibility. R. 63. The ALJ summarized the medical
evidence, including the fact that Claimant was not always compliant in taking prescribed
medication, and concluded summarily “claimant’s allegations regarding the limiting effects and
the severity of his symptoms are only partially credible.” R. 63. Although the ALJ says this
finding is based on “examination of the Claimant’s medical records as a whole, consideration of
the factors presented at 20 C.F.R. § 404.1529(c)(3), 416.929(3)(3) [sic] and Social Security
Ruling 96-7p, and of the claimant’s testimony,” this boilerplate recitation leaves a reviewing
28
court clueless as to the actual basis for the ALJ’s finding that Claimant is only “partially
credible.” R. 63.
We are not able to tell from the ALJ’s credibility determination, for example, whether he
examined the full range of evidence in the record and, if he did, how he evaluated evidence that
does not support his conclusion. For example, the ALJ determined that “the record shows that
medication controls [Claimant’s] seizure disorder and depression” but failed to make any
reference to Claimant’s testimony that he continued to experience seizures even when compliant
with treatment. R. 61. Even if it is true that medication controlled Claimant’s seizure disorder
and depression, however, the ALJ does not seem to have considered the reasons for Claimant’s
noncompliance with medication. In McClesky v. Astrue, the Seventh Circuit overturned an ALJ’s
credibility findings when those findings were based on Claimant’s refusal to comply with
medication without taking into consideration that “these are expensive and powerful drugs that
many people are reluctant to take or unable to afford.” 606 F.3d 351, 352 (7th Cir. 2010).
Additionally, the ALJ’s determination that Claimant’s activities “indicate that his
orthopedic impairments are not of a severity to be disabling” and therefore undermine his
credibility (R. 61), is also problematic without more explanation. The Seventh Circuit has
“cautioned the Social Security Administration against placing undue weight on a claimant’s
household activities in assessing the claimant’s ability to hold a job outside the home.” Craft,
539 F.3d at 680. In Craft, the court held that the ALJ was wrong to conclude from Craft’s ability
to “prepare meals, make his bed, clean his apartment, take walks and shop for groceries” that
those activities “belie his assertion of incapacity” without considering “how Craft copes with his
daily activities.” Id. Similarly, in Zurawski, the court held that Zurawski’s daily activities such as
washing dishes, helping his children prepare for school, doing laundry and preparing dinner, are
29
not “a sort of that necessarily undermines or contradicts a claim of disabling pain.” Zurawski,
245 F.3d at 887.
Like in Zurawski and Craft, here Claimant’s daily activities do not necessarily undermine
his credibility. The ALJ’s reference to Claimant’s daily activities such as reading the newspaper,
doing errands, caring for his personal needs, making sandwiches and frozen dinners, watching
television, reading the Bible and attending church regularly, is insufficient, without more,
because it fails to consider how Claimant copes with his pain during the daily activities. R. 61.
The record indicates at this point, for example, that Claimant has a difficult time cooking and
eats only simple meals because, if he tries anything difficult, he gets confused; that Claimant
does not go to the grocery store without assistance; and that Claimant is usually only able to
glance through a magazine because if he reads for more than fifteen or twenty minutes, he
becomes mentally exhausted. R. 29; 30; 34-35. The ALJ does not seem to factor these matters
into his credibility finding.
Accordingly, the ALJ’s determination does not contain sufficiently specific substantive
reasons for his finding on credibility. The Court cannot determine on this record whether or not
the ALJ’s finding is patently wrong. It is therefore necessary to remand the case to allow the
ALJ further opportunity to explain the basis of his adverse credibility determination.
IV. CONCLUSION
For the reasons set forth in the Court’s Memorandum Opinion and Order, Claimant
William Rodriguez’s motion for summary judgment [Dkt.#15] is granted, and the
Commissioner’s motion [Dkt.#17] is denied. The decision of the Commissioner of Social
30
Security is reversed, and this matter is remanded to the Social Security Administration for further
proceedings consistent with the Court’s Memorandum Opinion and Order.
It is so ordered.
__________________________________
Jeffrey T. Gilbert
United States Magistrate Judge
Dated: November 30, 2012
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