McDowell v. Astrue

Filing 31

MEMORANDUM Opinion and Order Signed by the Honorable Susan E. Cox on 7/2/2013:Mailed notice(jms, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WILLIAM S. MCDOWELL,

)
)
Plaintiff,
)
)
)
MICHAEL J. ASTRUE, Commissioner of )
Social Security,
)
)
Defendant,
)

No. 1:12-cv-03519
Magistrate Judge Susan E. Cox

MEMORANDUM OPINION AND ORDER
Plaintiff, William McDowell, seeks judicial review of a final decision of the Commissioner
of the Social Security Administration (“SSA”) denying his application for a period of disability,
disability insurance benefits, and supplemental security income benefits (“disability benefits”) under
Title II and Title XVI of the Social Security Act (“the Act”). Mr. McDowell has filed a motion for
summary judgment, seeking to reverse the Commissioner’s final decision or remand the case for
consideration of the issues raised herein. For the reasons set forth below, Mr. McDowell’s motion
to remand is granted [dkt. 15] and the Commissioner’s motion to affirm is denied [dkt. 24].
I.

Procedural History
Mr. McDowell applied for disability benefits on March 18, 2009, alleging that he became

disabled on September 1, 2008.1 His claims were denied initially on July 15, 2009, and again upon
reconsideration on December 2, 2009.2 On December 15, 2009, Mr. McDowell requested a hearing
before an Administrative Law Judge (“ALJ”).3 A hearing presided over by ALJ Robert Senander
1

R. at 16.
Id.
3
Id.
2

Page 1 of 31

was held on August 23, 2010 in Chicago, Illinois.4 Following the hearing, the ALJ issued an
unfavorable decision on November 23, 2010, concluding that Mr. McDowell was not disabled under
sections 216(i), 223(d) and 1614(a)(3)(A) of the Act.5 The Appeals Council denied Mr. McDowell’s
request to review the ALJ’s decision, so the ALJ’s decision is the final decision of the
Commissioner.6
II.

Factual Background
The facts set forth in this section are derived from the administrative record. We begin with

an overview of Mr. McDowell’s background and relevant medical history. We then summarize the
ALJ hearing testimony and the ALJ’s decision.
A.

Mr. McDowell’s Background and Relevant Medical History

Mr. McDowell was born on July 18, 1945, and at the time of the ALJ’s decision he was
sixty-five years old.7 He completed the ninth grade and has training as a certified nursing assistant
(“CNA”).8 Mr. McDowell’s past relevant work includes work as a home health care worker.9 This
is the only past relevant work that the ALJ examined in his decision. Though it is discussed in the
hearing that Mr. McDowell once worked as a CNA, it appears that the ALJ did not consider that
employment because the CNA job requirements are much too challenging for Mr. McDowell to
complete now.10 Mr. McDowell alleged that he became unable to continue his work in home health
care on September 1, 2008 because of abnormally high blood pressure or “hypertension,”11 an

4

Id.
R. at 13-22.
6
Id.
7
R. at 13, 32.
8
R. at 33.
9
R. at 21.
10
R. at 36.
11
The Merck Manual for Healthcare Professionals,
http://www.merckmanuals.com/professional/cardiovascular_disorders/hypertension/overview_of_hypertension.html
?qt=hypertension&alt=sh (2013).
5

Page 2 of 31

airflow limitation caused by an inflammatory response to inhaled toxins such as cigarette smoke,
also known as Chronic Obstructive Pulmonary Disease or “COPD,”12 lung disease, arthritis, and
mental illness.13
It is of note that the ALJ had very limited information and medical records to review on Mr.
McDowell. What we do know is that Mr. McDowell was first diagnosed with hypertension in
approximately 1989 and COPD in approximately 1994.14 Mr. McDowell also has a fifty-year history
of tobacco use and smoked up to two packs of cigarettes a day during that time period.15 This
information comes from a June 2009 consultative examination performed by the Disability
Determination Services (“DDS”), discussed below.16 There are no available medical records from
the time prior to filing. Additionally, we know that Mr. McDowell quit smoking in January 2010.17
The medical records available for Mr. McDowell are primarily comprised of doctors’ notes
from several visits to the emergency room over the course of about a year from March 2009 through
April 2010. In addition to that, all we have is the consultative examinations of two doctors who
examined Mr. McDowell for the purpose of determining disability, and the opinion evidence of two
doctors who reviewed Mr. McDowell’s medical records for the DDS.
On March 4, 2009, Mr. McDowell went to the emergency room at Provident Hospital of
Cook County with a cough that was producing yellow-green fluid and pain in the lower region of
the rib cage.18 He was diagnosed with acute or chronic bronchitis, and COPD with emphysema.19

12

The Merck Manual for Healthcare Professionals,
http://www.merckmanuals.com/professional/pulmonary_disorders/chronic_obstructive_pulmonary_disease_and_rela
ted_disorders/chronic_obstructive_pulmonary_disease.html?qt=COPD&alt=sh (2012).
13
R. at 115.
14
R. at 208-09.
15
Id.
16
Id.
17
R. at 318.
18
R. at 196.
19
R. at 197.

Page 3 of 31

On June 24, 2009, Mr. McDowell had a consultative examination with Liana Palacci, D.O.,
at the request of the SSA for the purpose of determining disability.20 Dr. Palacci reviewed the
medical records from Provident Hospital of Cook County and indicated that an x-ray showed marked
emphysema.21 She also noted that Mr. McDowell had refused an INH treatment.22 She indicated that
Mr. McDowell used an inhaler twice a day, particularly with exertion and changes in the weather.23
Dr. Palacci’s clinical impressions were that Mr. McDowell had well controlled COPD, poorly
controlled hypertension, and a history of psychiatric disease.24
On July 14, 2009, Ernst Bone, M.D., a non-examining State agency doctor, reviewed Mr.
McDowell’s file for the purpose of determining disability.25 Dr. Bone concluded that Mr. McDowell
was capable of lifting twenty pounds occasionally and ten pounds frequently, standing/walking for
approximately six hours in an eight hour day, and sitting for approximately six hours in an eight
hour day.26 Dr. Bone also stated that Mr. McDowell should avoid concentrated exposure to extreme
cold, extreme heat, humidity, fumes, odors, dusts, gases and poor ventilation.27
On July 22, 2009, Mr. McDowell went to the emergency room at the University of Chicago
Medical Center because he was feeling dizzy and weak, and was experiencing chest pain and
lightheadness (also known as near syncope).28 According to the hospital records, he had been at his

20

R. at 208-11.
R. at 208.
22
The Merck Manual for Healthcare Professionals,
http://www.merckmanuals.com/professional/infectious_diseases/mycobacteria/tuberculosis_tb.html?qt=INH%20trea
tment&alt=sh (2012) (INH or isoniazid is a drug used to treat tuberculosis).
23
R. at 208.
24
R. at 209, 211 (Mr. McDowell has a history of schizophrenia that was diagnosed in the 1960s, but he had
not had a psychiatric hospitalization in ten years and denied any auditory hallucinations).
25
R. at 227-34.
26
R. at 228.
27
R. at 231.
28
The Merck Manual for Healthcare Professionals,
http://www.merckmanuals.com/professional/cardiovascular_disorders/symptoms_of_cardiovascular_disorders/synco
pe.html?qt=syncope&alt=sh (2012); R. at 238.
21

Page 4 of 31

primary doctor’s office prior to going to the emergency room when he began to feel “woozy.”29 This
is the only mention of Mr. McDowell’s primary doctor in the record and we have no other
information about this primary doctor or his treatment of Mr. McDowell. At the hospital, Mr.
McDowell stated that he was experiencing shortness of breath and weakness while walking two
blocks to the store.30 He further explained that he used to be able to walk four blocks before
becoming short of breath, but could now only walk two.31 The doctor noted that Mr. McDowell was
still smoking.32
During his stay at the emergency room, Mr. McDowell was unable to perform an exercise
stress test due to an inability to walk on the treadmill.33 A myocardial perfusion scan34 showed mild
abnormalities with evidence of reversible myocardial ischemia.35 Mr. McDowell refused to go ahead
with a scheduled cardiac catheterization, despite explanations from doctors regarding the risks and
benefits of the procedure.36
On August 19, 2009, Mr. McDowell had a follow-up visit at the University of Chicago
Medical Center where he was found to have the same symptoms as the previous visit.37 The doctor
noted that while Mr. McDowell did continue to smoke, he was cutting back.38 The doctor’s

29

R. at 239.
Id.
31
Id.
32
Id.
33
R. at 244.
34
R. at 253; The Merck Manual for Healthcare Professionals,
http://www.merckmanuals.com/professional/cardiovascular_disorders/cardiovascular_tests_and_procedures/radionu
clide_imaging.html?qt=myocardial%20perfusion%20scan&alt=sh (2013) (a myocardial perfusion scan is used with
stress testing to evaluate patients with chest pain of an unknown origin).
35
The Merck Manual for Healthcare Professionals,
http://www.merckmanuals.com/professional/cardiovascular_disorders/coronary_artery_disease/acute_coronary_synd
romes_acs.html?qt=reversible%20myocardial%20ischemia&alt=sh (2013) (reversible myochardial ischemia is a
reversible condition where the muscles of the heart become stressed with exercise).
36
R. at 250.
37
R. at 258.
38
R. at 259.
30

Page 5 of 31

impression was shortness of breath with no clear etiology, possible chronic lung disease and/or
interstitial lung disease with possible coronary involvement.39 An angiogram40 was recommended,
but Mr. McDowell was not sure he wanted to have one because he had no insurance.41
On November 6, 2009, Rochelle Hawkins, M.D., performed a consultative examination on
Mr. McDowell for the purpose of determining disability.42 Dr. Hawkins noted that his COPD
appeared to be worsening and that he complained of becoming fatigued easily.43 Dr. Hawkins
indicated that Mr. McDowell was smoking approximately ten cigarettes a day, down from two
packs a day.44 Dr. Hawkins performed a lung function test45 on Mr. McDowell which showed that
he has moderate airway obstruction in addition to moderate small airway damage.46 Dr Hawkins
noted in her report that they had to stop the testing because Mr. McDowell was feeling dizzy. Dr.
Hawkins also reported five out of five bilateral grip strength and normal muscle strength, stating
that Mr. McDowell had no anatomic abnormality of either upper extremity and no limitation of
motion in the shoulder, elbow or wrist joints.47 Dr. Hawkins concluded that Mr. McDowell was able

39
R. at 259; The Merck Manual for Healthcare Professionals,
http://www.merckmanuals.com/professional/pulmonary_disorders/interstitial_lung_diseases/overview_of_interstitial
_lung_disease.html?qt=interstitial%20lung%20disease&alt=sh (2013) (chronic or interstitial lung disease can refer
to asthma or COPD which includes emphysema and/or chronic bronchitis).
40
The Merck Manual for Healthcare Professionals,
http://www.merckmanuals.com/professional/special_subjects/principles_of_radiologic_imaging/angiography.html?q
t=angiography&alt=sh (2012) (an angiogram is an x-ray treatment to view the heart).
41
R. at 258.
42
R. at 280-88.
43
R. at 280.
44
Id.
45
The Merck Manual for Healthcare Professionals,
http://www.merckmanuals.com/professional/pulmonary_disorders/asthma_and_related_disorders/asthma.html?qt=F
EV1&alt=sh (2013) (FEV1/FVC/FEF testing is used to indicate how severe a patient’s airway obstruction is).
46
R. at 289 (Mr. McDowell had a best pre-med FEV1 of 2.49 and a best post-med FEV1 of 2.40. His premed FEV1 shows that before the use of an inhaler he was at 96% of predicted value for similar patients, and his
post-med FEV1 shows that he was at 92% of what is predicted for similar patients. The FEV1/FVC shows that Mr.
McDowell can only blow out 67% of his lung capacity before medication and 69% after medication, compared to a
predicted value of 80%. Mr. McDowell’s FEF 25-75, which gives a measure of small airway damage, is 48% of the
predicted value).
47
R. at 282, 287.

Page 6 of 31

to sit, speak and hear without limitations, but had some difficulty with prolonged standing, walking,
lifting and carrying due to COPD.48
Between November 24, 2009 and December 1, 2009, Barry Free, M.D., and Thomas Low,
PhD, reviewed Mr. McDowell’s medical records on behalf of the DDS for the purpose of
determining disability.49 Dr. Free and Dr. Low did not examine Mr. McDowell in person.50 Their
assessment expressed that based on the medical records, Mr. McDowell was capable of light work
activity with environmental limitations.51 They found that while Mr. McDowell’s impairment could
be expected to “produce some limitations in function . . . the extent of the limitations described by
the claimant in terms of having problems walking and using his hands, exceeds that supported by
the objective medical findings cited.”52
An outpatient hospital treatment note from January 29, 2010 states that Mr. McDowell had
stopped smoking for three weeks, his shortness of breath was better, and he could walk two blocks
before having to stop.53 An outpatient hospital treatment note from March 31, 2010 states that Mr.
McDowell’s shortness of breath was better since using an inhaler and his chest pain was improving
as he was now able to walk two and a half blocks, but still had some chest pressure, pain and
shortness of breath.54
On April 15, 2010, Mr. McDowell went to the emergency room at St. Bernard Hospital after
having a fainting episode known as syncope.55 The treating doctor noted Mr. McDowell’s history
of COPD and hypertension, and stated that he had bradycardia, otherwise known as a slow
48

R. at 283.
R. at 296-98.
50
Id.
51
R. at 298.
52
Id.
53
R. at 429.
54
R. at 421.
55
R. at 318, 412.
49

Page 7 of 31

heartbeat lower than sixty beats per minute.56 A chest examination showed hyperinflation consistent
with obstructive lung disease.57 The doctor noted that Mr. McDowell had quit smoking three
months prior.58 Mr. McDowell was discharged on April 17 and did not require any surgeries or
emergency services.59
B.

The Hearing Before The ALJ

Mr. McDowell’s hearing before the ALJ occurred on August 23, 2010 in Chicago, Illinois.60
He testified that he was sixty-five years old, 5’6” tall, and had a weight of 104 pounds.61 He also
testified that he lived alone in senior citizen housing, his last completed educational level was ninth
grade, and he had training as a CNA.62 Mr. McDowell explained that he does his own cooking,
cleaning, grocery shopping and laundry.63
The ALJ asked Mr. McDowell when he last worked and it was determined that it was
sometime between June and September of 2008.64 The ALJ prompted Mr. McDowell to discuss his
recent employment history.65 Mr. McDowell discussed the home health care position he held in
2007 where he worked with a mentally disabled teenager named Charles.66 He testified that he took
care of Charles by fixing his food, helping him shower, and combing his hair.67 The ALJ asked Mr.
McDowell about the lifting requirements of that job, and Mr. McDowell testified that he only had
56

R. at 318-19, 414.
R. at 379; The Merck Manual for Healthcare Professionals,
http://www.merckmanuals.com/professional/pulmonary_disorders/chronic_obstructive_pulmonary_disease_and_rela
ted_disorders/chronic_obstructive_pulmonary_disease.html?qt=hyperinflation&alt=sh (2012) (overinflation of the
lung is a common symptom of COPD).
58
R. at 318.
59
R at 416.
60
R. at 29.
61
R. at 32.
62
R. at 33, 39.
63
R. at 39-40.
64
R. at 33-34.
65
R. at 33-38.
66
R. at 34-35, 41-42.
67
R. at 35.
57

Page 8 of 31

to lift dishes, plates, and small bags of garbage.68
Mr. McDowell and the ALJ also discussed a second job in home health care that he had
from approximately 2002-2004.69 Mr. McDowell testified that he worked with an individual in a
wheelchair named Dr. Smith and that this position was similar to his work with Charles.70 He said
he cooked for Dr. Smith as well as pushed him in his wheelchair.71
Mr. McDowell’s attorney asked him some questions to clarify his work with Charles and
Dr. Smith.72 Mr. McDowell testified that he did not have to lift Charles when helping him shower,
but steadied him when he was getting in and out.73 He also testified that neither Charles nor Dr.
Smith ever fell when he was on the job, but if they had he would have tried his best to help them
up.74 Mr. McDowell stated that during the course of his work with Charles and Dr. Smith he never
had to lift more than ten pounds.75 He also testified he helped both Charles and Dr. Smith with
grocery shopping and laundry.76
Mr. McDowell’s attorney noted that Mr. McDowell weighed 130 pounds when he worked
with Charles and Dr. Smith and asked Mr. McDowell if he thought he could do the lifting required
for those jobs at his current weight of 104 pounds.77 He responded that he knew he could not
because of his difficulty breathing from COPD and the limitation in his left arm.78 He testified that
the limitation in his arm had gotten worse since he used to work.79

68

Id.
Id.
70
R. at 36-37.
71
R. at 39.
72
R. at 37.
73
Id.
74
R. at 37-38.
75
R. at 38.
76
Id.
77
R. at 40.
78
Id.
79
Id.
69

Page 9 of 31

Mr. McDowell explained that the reason he quit his job working for Charles was because
he could no longer do the work, which involved walking up and down steps constantly and running
after Charles.80 Mr. McDowell’s attorney asked him if he thought there were any tasks from his job
with Dr. Smith that he would no longer be able to do.81 Mr. McDowell said he would not be able
to do any lifting, and that he would not be able to push Dr. Smith’s wheelchair to the extent that
he used to, about six blocks a day, because he became too tired and out of breath.82 He testified that
he did not think he could do a home health care job today, even if he did not have to lift more than
ten pounds, because of his fatigue and the requirement of constant movement.83
Mr. McDowell and his attorney discussed Mr. McDowell’s thirty-pound weight loss. Mr.
McDowell testified that he had lost his appetite and doctors did not know why and had given no
medical explanation for his weight loss.84 He mentioned that his doctors had him taking Ensure, a
kind of protein shake, to help him gain weight and that he was up seven pounds from before when
he weighed ninety-six pounds.85 Mr. McDowell also attributed this increase in weight to taking
vitamins and quitting smoking, which helped his appetite.86
The ALJ probed the attorney and Mr. McDowell further on the condition of Mr.
McDowell’s arm.87 Mr. McDowell testified that he had a skin graft due to third degree burns from
the explosion of a lighter in 1997.88 His attorney noted that he had a range of motion issue and it
was difficult for him to lift his left arm because reaching tore the skin.89

80

R. at 41-42.
R. at 41.
82
R. at 42-43, 45.
83
Id.
84
R. at 43.
85
R. at 44.
86
Id.
87
R. at 47.
88
Id.
89
Id.
81

Page 10 of 31

The attorney questioned Mr. McDowell about the nitroglycerin90 he was taking.91 Mr.
McDowell testified that he takes nitroglycerin for chest pains at least three times a week.92 He
testified that when he gets the chest pains, which often occur in response to exertion, he takes
nitroglycerin and then sits and rests for five minutes.93 Mr. McDowell affirmed that his chest pains
would probably not stop him from doing a job.94
Finally, Mr. McDowell testified that on some days he could not leave his home because it
was too hot or too cold which was bad for his breathing.95 He explained that there were about seven
days in the past summer where he could not leave his home because it was too hot.96
C.

The ALJ’s Decision

In an opinion issued on November 23, 2010, the ALJ concluded that Mr. McDowell was
not disabled within the meaning of the Act at any time after his alleged onset date of September 1,
2008.97 Although the ALJ decided that Mr. McDowell met the insured status requirements of the
Act, he found that Mr. McDowell did not establish that he was unable to perform his past relevant
work in home health care.98
SSA regulations prescribe a sequential five-part test for ALJs to use in determining whether
a claimant is disabled.99 The ALJ’s first step is to consider whether the claimant is presently

90
The Merck Manual for Healthcare Professionals,
http://www.merckmanuals.com/professional/cardiovascular_disorders/coronary_artery_disease/angina_pectoris.html
?qt=nitroglycerin&alt=sh (2013) (nitroglycerin is a drug used for immediate relief of chest pain).
91
Id.
92
R. at 48.
93
Id.
94
Id.
95
Id.
96
R. at 49.
97
R. at 16.
98
R. at 18, 21.
99
R. at 17; C.F.R. § 404.1520(a)(1).

Page 11 of 31

engaged in any substantial gainful activity which would preclude a disability finding.100 In the
present case, the ALJ determined that Mr. McDowell had not engaged in any substantial gainful
activity since the alleged onset date of September 1, 2008.101
The second step is for the ALJ to consider whether the claimant has a severe impairment
or combination of impairments.102 In the present case, the ALJ concluded that Mr. McDowell had
the medically determinable severe impairments of COPD and hypertension.103
The ALJ’s third step is to consider whether the claimant’s impairments meet or equal any
impairment listed in the regulations as being so severe as to preclude gainful activity.104 In the
present case, the ALJ determined that Mr. McDowell’s impairments did not meet or medically
equal an impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1.105 The ALJ considered
section 4.00 of the listings and found that Mr. McDowell did not meet or equal the requirements
for chronic heart failure, ischemic heart disease, recurrent arrhythmias, peripheral arterial disease,
or symptomatic congenital heart disease.106 Because there is no specific listing for hypertension,
the ALJ factored in the effects of hypertension on other body systems, but found that Mr.
McDowell’s hypertension did not warrant a determination of “meets or equals” of any listing.107
The ALJ also considered 3.02 of the listings and concluded that there was no evidence to suggest
the listing for chronic obstructive pulmonary insufficiency had been met or equaled.108 Finally, the
ALJ noted that the record makes some reference to depression, but that because the record does not

100

Id.; C.F.R. § 404.1520(a)(4)(i).
R. at 18.
102
R. at 17; C.F.R. § 404.1520(a)(4)(ii).
103
R. at 18.
104
R. at 17; C.F.R. § 404.1520(a)(4)(iii).
105
R. at 18-19.
106
R. at 18.
107
R. at 18-19.
108
R. at 19.
101

Page 12 of 31

show an actual assessment, any ongoing related treatment, or any medication for depression, it was
not a medically determinable impairment in Mr. McDowell’s case.109
In the event that none of the claimant’s impairments meet the listing requirements, the ALJ
proceeds to the fourth step of the test—whether the claimant has the residual functional capacity
(“RFC”) to perform the requirements of his past relevant work.110 The ALJ must evaluate the
claimant’s RFC based on the record, the claimant’s testimony, and a comparison of the
requirements of his past work.111 The RFC is an assessment of the maximum work-related activities
a claimant can perform despite his impairments.112
If determining the claimant’s RFC requires the ALJ to assess subjective complaints, then
the ALJ follows a two-step process.113 First, the ALJ decides whether there is an underlying
medically determinable impairment—an impairment that can be shown by medically acceptable
clinical and laboratory diagnostic techniques—that could reasonably be expected to produce the
claimant’s symptoms.114 If such an impairment exists, the ALJ then evaluates the intensity,
persistence, and limiting effects of a claimant’s symptoms to determine the extent to which they
limit the claimant’s functioning.115 The ALJ must consider the entire record when making decisions
about the credibility of the claimant’s subjective complaints.116 If, after this process, the ALJ
determines that the claimant’s RFC makes him able to perform his past work, he is not found to be
disabled.117

109

Id.
R. at 17; C.F.R. § 404.1520(a)(4)(iv).
111
R. at 19; C.F.R. § 404.1520(e).
112
R at 17; C.F.R. § 404.1545
113
R. at 19; S.S.R. 96-7p.
114
Id.
115
Id.
116
Id.
117
R. at 18; S.S.R. 96-8p.
110

Page 13 of 31

In the present case, the ALJ found that Mr. McDowell had the RFC “to perform light work
as defined in 20 C.F.R 404.1567(b) and 416.967(b)” except that Mr. McDowell should “avoid
concentrated exposures to extreme heat, cold, humidity, fumes and dust.”118 In terms of Mr.
McDowell’s subjective complaints, although the ALJ found that his “medically determinable
impairments could reasonably be expected to cause the alleged symptoms,” he also found that Mr.
McDowell’s statements “concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent” with his RFC assessment.119
In determining McDowell’s credibility, the ALJ looked at his ability to engage in daily
activities.120 The ALJ specifically noted that Mr. McDowell “stated that he was able to attend to his
personal needs, prepare simple meals, watch television, clean laundry, . . . grocery shop, attend
church services and follow written instructions.”121 The ALJ also pointed to Mr. McDowell’s
infrequent work history which did “not suggest a solid motivation or desire to work.”122
The ALJ further concluded that Mr. McDowell’s subjective statements were not credible
because they were inconsistent with objective medical signs and the findings of the record as a
whole.123 The ALJ pointed to the fact that Mr. McDowell worked for many years after his
hypertension and COPD were diagnosed, and stated there was no sudden deterioration of his
condition.124 The ALJ relied on the consultative examinations of Dr. Palacci and Dr. Hawkins.125
He noted Dr. Palacci’s conclusion that Mr. McDowell’s COPD was well controlled with an inhaler,

118

R. at 19.
R. at 20.
120
R. at 19.
121
Id.
122
R. at 20; see R. at 107-11.
123
R. at 21.
124
R. at 20.
125
Id.
119

Page 14 of 31

and found that Dr. Hawkins’ conclusions about Mr. McDowell’s ability to stand, walk, lift and
carry were consistent with a finding that Mr. McDowell’s COPD was “not so severe that [he] is
unable to engage in light work activity.”126
The ALJ further explained that Mr. McDowell had “continually disregarded his treating
physicians’ instructions to stop smoking cigarettes” even though doctors had told him his condition
would improve if he stopped.127 The ALJ also suggested that because Mr. McDowell had in the past
refused an INH treatment and a catheterization, his “conservative care for his physical problems
strongly suggested that his symptoms remained well controlled.”128
Finally, the ALJ gave great weight to the opinion evidence from the DDS.129 The DDS
evaluated the medical record and indicated that Mr. McDowell was capable of performing the
exertional demands of light work despite his COPD and hypertension.130 The ALJ also assessed the
testimonials from Mr. McDowell’s daughter, but those were given less weight because of their high
degree of subjectivity.131
The ALJ additionally determined that Mr. McDowell was “capable of performing his past
relevant work as a home health care worker,” and that this work did “not require the performance
of work-related activities precluded by” Mr. McDowell’s RFC.132 In comparing Mr. McDowell’s
RFC “with the physical and mental demands of this work,” the ALJ found that Mr. McDowell was
“able to perform it as actually and generally performed.”133 In determining this, the ALJ explained

126

Id.
R. at 21.
128
Id.
129
Id.
130
R. at 21; see R. at 296-98.
131
R. at 21; see R. at 139-40.
132
Id.
133
Id.
127

Page 15 of 31

that Mr. McDowell’s testimony was very vague concerning any specific limitations that his COPD
and hypertension would cause him while working in home health care.134 The ALJ expressed that
Mr. McDowell’s lengthy description of his past work experience did not suggest “that the work
would push [him] past safe levels of physical activity.”135 Because the ALJ found that Mr.
McDowell could perform his past relevant work and was thus not disabled within the meaning of
the Act, he did not proceed to the fifth step of the analysis.136
III.

Standard of Review
The Court must sustain the Commissioner’s findings of fact if they are supported by

substantial evidence and are free of legal error.137 Substantial evidence is relevant evidence that
a reasonable mind might accept as adequate to support a conclusion.138 The standard of review is
deferential, but the reviewing court must conduct a critical review of the evidence before affirming
the Commissioner’s decision.139 Where conflicting evidence allows reasonable minds to differ, the
responsibility for determining whether a plaintiff is disabled falls upon the Commissioner and not
the Court.140 Although the ALJ need not address every piece of evidence or testimony presented,
he must adequately discuss the issues and build a logical bridge from the evidence to his
conclusions.141 The Court will conduct a critical review of the evidence and will not uphold the
ALJ’s decision if it lacks evidentiary support or if the Commissioner applied an erroneous legal

134

Id.
R. at 21-22.
136
R. at 22.
137
42. U.S.C. § 405(g).
138
McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011) (citing Nelms v. Astrue, 553 F.3d 1093, 1097 (7th
Cir. 2009)).
139
Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008).
140
Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990) (citing Walker v. Bowen, 834 F.2d 635, 640 (7th Cir.
1987)).
141
Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010).
135

Page 16 of 31

standard.142
IV.

Analysis
Mr. McDowell argues that the Court should reverse and remand the decision of the ALJ

because the ALJ failed to: (1) properly evaluate the credibility of Mr. McDowell’s allegations; (2)
include all of Mr. McDowell’s limitations in the RFC assessment; and (3) follow the requirements
of SSR 82-62 when he found Mr. McDowell capable of returning to his past work. We find some
error on the part of the ALJ with respect to each of these arguments. Overall, we determine that the
ALJ did not construct a logical bridge from the, admittedly, limited record to his conclusions, and
that the ALJ lacked adequate support for several crucial arguments.
A.

The ALJ’s Credibility Determination

First, Mr. McDowell contends that the ALJ’s credibility determination was erroneous.
Specifically, Mr. McDowell argues that the ALJ erred by improperly: 1) characterizing his
smoking; 2) suggesting that he had a history of conservative care; and 3) giving weight to his sparse
work record without reasoning. Mr. McDowell also points to the ALJ’s use of boilerplate language,
but the Seventh Circuit has not remanded cases just for the use of such language.143
An ALJ’s credibility determination cannot be invalidated unless it is “patently wrong.”144
In determining whether a credibility determination is “patently wrong,” the court examines whether
the ALJ’s determination was reasoned and supported.145 The Seventh Circuit explained that an ALJ

142

Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).
See, e.g., Carter v. Astrue, 413 F. App’x 899, 905-06 (7th Cir. 2011) (refused to remand simply because
of the inclusion of a template credibility finding and held that the ALJ provided an adequate explanation for his
credibility finding).
144
Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2008); Sims v. Barnhart, 309 F.3d 424, 431 (7th Cir.
2002).
145
See Jens v. Barnhart, 347 F.3d 209, 213–14 (7th Cir. 2003); Powers v. Apfel, 207 F.3d 431, 435 (7th Cir.
2000).
143

Page 17 of 31

needs only to “minimally articulate his or her justification for rejecting or accepting specific
evidence of disability.”146 “It is only when the ALJ’s determination lacks any explanation or
support that [a court] will declare it to be ‘patently wrong.’”147 Additionally, when determining
credibility, an ALJ must consider the entire case record, including the claimant’s statements and
the opinions of treating or examining physicians and other persons.148 Under S.S.R. 96-7p, an ALJ’s
credibility determination “must contain specific reasons for the finding on credibility, supported
by the evidence in the case record, and must be sufficiently specific to make clear to the individual
and any subsequent reviewers the weight the adjudicator gave to the individual’s statements and
the reasons for that weight.”149 Finally, in determining the claimant’s credibility, the ALJ may not
ignore the claimant’s statements regarding pain and other symptoms or disregard them merely
because they are not substantiated by objective medical evidence.150
In the present case, the ALJ’s credibility determination is not fully reasoned and supported
as required by the regulations, and we thus find that the ALJ’s overall credibility determination for
Mr. McDowell is patently wrong and requires remand.
1.

Smoking

Mr. McDowell argues that the ALJ improperly relied on his history of smoking in making
his credibility determination because he quit in January 2010. Mr. McDowell also argues that the
ALJ should have considered the addictive nature of smoking if he was going to take smoking into
account for the purpose of credibility.

146

Rice v. Barnhart, 384 F.3d 363, 371 (7th Cir. 2004) (quoting Steward v. Bowen, 858 F.2d 1295, 1299
(7th Cir. 1988)).
147
Elder v. Astrue, 529 F.3d 408, 413–14 (7th Cir. 2008) (quoting Jens, 347 F.3d at 213).
148
S.S.R. 96–7p.
149
Id.
150
Id.

Page 18 of 31

Mr. McDowell’s first argument is that the ALJ significantly factored his smoking habit into
the credibility determination despite acknowledging that he quit smoking in January 2010.151 The
Commissioner responds that what the ALJ found relevant was that Mr. McDowell did not quit
smoking until January 2010, after smoking up to two packs a day for fifty years.152 The ALJ stated
that “the claimant has continually disregarded his treating physicians’ instructions to stop smoking
cigarettes, even though his doctors have told him that, if he stopped, his condition would
improve.”153
It was not unreasonable for the ALJ to consider Mr. McDowell’s smoking habit in making
his credibility determination, especially considering Mr. McDowell’s COPD is a direct result of
his smoking history. For example, in Jones v. Astrue, the court held it was reasonable for the ALJ
to consider the claimant’s smoking where it likely aggravated her asthma.154 Similarly, in Rogers
v. Barnhart, the court upheld the ALJ’s credibility finding where the asthmatic claimant was a
smoker.155
However, we can only assess Mr. McDowell’s smoking history from the record available
to us. Mr. McDowell correctly points out that there is a note in the record from July 2009 that he
was trying to cut back.156 There is an additional note from August 2009 with the same sentiment,
and Dr. Hawkins’ assessment from November 2009 stated that Mr. McDowell was down to ten
cigarettes a day.157 While we know Mr. McDowell smoked for fifty years, because the record shows
that he was trying to quit and did indeed quit in January 2010, the ALJ’s statement that he was

151

R. at 20.
Id.
153
R. at 21.
154
No. 11 CV 3958, 2012 WL 4120417, at *8 (N.D. Ill. Sep. 18, 2012).
155
446 F. Supp. 2d 828, 856 (N.D. Ill. 2006).
156
R. at 262.
157
R. at 259.
152

Page 19 of 31

disregarding his doctors’ instructions to quit smoking is not supported by the limited record we
have.
The earliest treatment record is from March 2009, just four months prior to the July 2009
note.158 Based on the minimal medical history, at most it would be fair to say Mr. McDowell was
“ignoring” his doctors’ instructions to quit smoking for four months. It seems the ALJ inferred that
doctors prior to July 2009 had told Mr. McDowell for many years to quit smoking. But if they did,
that information is not available to us.
Furthermore, the record does not support the ALJ’s statement that doctors told Mr.
McDowell his condition would improve if he stopped smoking. The ALJ appears to make this
inference from doctors’ notes in the record that recommended Mr. McDowell should stop
smoking,159 but no doctor made a specific finding that Mr. McDowell’s condition would improve
if he quit. In Rousey v. Heckler, the court held that the ALJ could not “make his own independent
medical determinations about the claimant” when the record was devoid of evidence that the
claimant would recover from her impairments if she quit smoking.160
Here, while the Commissioner points to some evidence of improvement in Mr. McDowell’s
condition in the few months after he stopped smoking, it is unclear from the record if this is
attributable to smoking cessation, use of an inhaler, or other factors. There was also minimal
evidence for the ALJ to review regarding an improvement in Mr. McDowell’s condition because
he stopped smoking only a few months prior to the hearing.161 While the Commissioner argues that
“[n]o medical source denied that McDowell would improve with smoking cessation,” that line of

158

R. at 197.
See, e.g., R. at 259-72, 445.
160
771 F.2d 1065, 1069 (7th Cir. 1985).
161
R. at 421, 426.
159

Page 20 of 31

reasoning does not appear in the ALJ’s decision and our review is limited to the reasons the ALJ
articulated.162
Mr. McDowell’s second argument is that smoking is an addictive habit and an inability to
quit does not necessarily suggest that he was “refusing” to quit as the Commissioner offers. Mr.
McDowell points to Shramek v. Apfel where the court held that given the addictive nature of
smoking, a failure to quit is an unreliable basis on which to rest a credibility determination.163 The
court stated that not quitting smoking “is as likely attributable to factors unrelated to the effect of
smoking on a person's health.”164 However, the ALJ did not base his entire credibility finding on
Mr. McDowell’s smoking history, so the absence of discussion about the addictiveness of smoking
is not a particular concern of this Court.
Overall, considering the scarcity of the medical records and that Mr. McDowell did quit
smoking four months after the earliest record available, the ALJ’s credibility findings as they relate
to Mr. McDowell’s smoking are too conclusory, particularly the ALJ’s statement that doctors told
Mr. McDowell his condition would improve if he quit.
2.

History of Conservative Care

Next, Mr. McDowell argues that the ALJ erred when he found that his “conservative care
for physical problems strongly suggested that his symptoms remained well controlled.”165 The
Commissioner responds that the ALJ gave several examples of more aggressive treatment Mr.
McDowell refused or did not need. These include refusal of an INH treatment, a refusal to have a

162

See, e.g., Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010) (noting that the Commissioner’s defense of
the ALJ’s decision on grounds that “the agency itself had not embraced” was improper under the Chenery doctrine);
Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010).
163
226 F.3d 809, 813 (7th Cir. 2000).
164
Id.
165
R. at 21.

Page 21 of 31

catheterization, and a near-fainting episode in April 2010 that did not require surgery or emergency
services.166 The ALJ also pointed out conservative measures he took that helped control his
symptoms.167
The regulations allow an ALJ to consider a claimant’s treatment regiment in comparison to
their claimed limitations,168 and this Court is “required to give deference to the ALJ’s factual
determination stemming from that history.”169 On the other hand, a history of conservative care is
an “inadequate foundation upon which to base a credibility determination” if such care is appropriate
for the claimant’s condition.170 In addition, while refusals of treatment may suggest that Mr.
McDowell’s symptoms were well controlled, an ALJ should “not draw any inferences about an
individual's symptoms and their functional effects from a failure to seek or pursue regular medical
treatment without first considering any explanations that the individual may provide, or other
information in the case record, that may explain . . . failure to seek medical treatment.”171 In
considering such explanations, the ALJ may need to contact the individual or discuss the reasons
with them at the hearing.172
The record contains a note from August 2009 that the ALJ did not include in his discussion
of Mr. McDowell’s history of conservative care: that Mr. McDowell did not want an angiogram
because he had no insurance.173 Though there is no explanation for Mr. McDowell’s refusal of the
catheterization, it was during the same time period, only one month earlier, in July 2009.174 Also

166

R. at 20-21.
Id.
168
20 C.F.R. § 404.1529(c)(3)(v).
169
Jones, No. 11 CV 3958 at *8.
170
See, e.g., Agnew v. Astrue, 2013 WL 24983 *12 (N.D. Ill., Jan 2. 2013).
171
S.S.R. 96-7p.
172
Id.
173
R. at 259.
174
R. at 250.
167

Page 22 of 31

during the same time period Mr. McDowell refused to have an INH treatment.175 It would have been
ideal for the ALJ to ask Mr. McDowell at the hearing why he refused certain treatments in order to
shed some light on his choice of conservative care. In Alesia v. Astrue, another judge in this court
remanded the case when the ALJ based credibility on conservative care and the claimant had
testified that she had no insurance.176 The Alesia court stated, “[t]he ALJ erred by drawing negative
inferences from the lack of treatment without first addressing Claimant's ability to pay.”177
The ALJ similarly erred here by immediately linking Mr. McDowell’s conservative care to
less severity in his impairments instead of addressing the possible issue of health insurance. On
remand, the ALJ should revisit his credibility finding and more fully investigate whether Mr.
McDowell’s choice of conservative care was affected by an inability to pay.
3.

Sparse Work Record

Mr. McDowell’s third argument is that the ALJ did not offer an explanation for the finding
that his previous work record supports a conclusion that his physical limitations were not credible.
The Commissioner explained that the ALJ is entitled to take into account a claimant’s work history,
citing to 20 C.F.R. section 416.929(c)(3) which states that work history can be considered when
evaluating a claimant’s credibility. It is true that the ALJ may consider the claimant’s work history
in his credibility determination, but Mr. McDowell reminds us that the ALJ is still required to give
“specific reasons for the finding on credibility, supported by the evidence in the case record.”178
The ALJ cited to Mr. McDowell’s work history in the record and found that it “does not
suggest a solid motivation or desire to work.”179 The earnings history in the record, found in exhibit

175

R. at 208 (refused treatment in June of 2009).
789 F. Supp. 2d 921, 934 (N.D. Ill. 2011).
177
Id.
178
S.S.R. 96-7p.
179
R. at 21.
176

Page 23 of 31

3D and 4D, shows that Mr. McDowell did not work consistently.180 Between 1992 and 1998, Mr.
McDowell had no recorded earnings.181 He worked in 1999 and 2000 but there are no recorded
earnings for 2001.182 He worked in 2002 and 2003, but not in 2004 or 2005.183 And finally, he
worked 2006 through 2008.
Mr. McDowell makes the argument that in the three years prior to the onset of his alleged
disability (2006-2008) he was working, and in each of those years he earned more than any year
prior to those three.184 But Mr. McDowell’s work record as a whole does show inconsistencies and
this Court must defer to the ALJ’s findings of fact when they are supported by the record.185 We
would have liked to see the ALJ give further explanation for how Mr. McDowell’s work history
played into the overall credibility determination, but the ALJ’s choice not to do so does not
constitute legal error.
While the ALJ’s reasoning for relying on Mr. McDowell’s poor work history is adequate,
we find that the ALJ’s discussion of Mr. McDowell’s history of both smoking and conservative care
is not properly supported and explained by the ALJ in his opinion. On remand the ALJ should work
to develop these portions of the record and adjust his credibility determinations appropriately based
on any new findings.
B.

The ALJ’s RFC Analysis

Mr. McDowell next argues that the ALJ did not account for all of his impairments in
determining that he was capable of light work. If the ALJ did not properly decide Mr. McDowell’s

180

R. at 107-11.
Id.
182
Id.
183
Id.
184
R. at 111 (Mr. McDowell earned $9844.65 in 2006, $13,843.90 in 2007, and $9686.10 in 2008 where
previously the most money he had made in a year was $7,735.00 in 2002).
185
42. U.S.C. § 405(g).
181

Page 24 of 31

RFC, that could lead to a different outcome in the case. Mr. McDowell briefly makes the point that
had the ALJ determined he was limited to sedentary work, most likely he would have been found
disabled under the regulations due to his advanced age and limited education.186
Mr. McDowell’s contention that he cannot perform light work hinges on an apparent
discrepancy between Dr Hawkins’ report and the SSR’s definition of light work. In his opinion, the
ALJ noted that “Dr. Hawkins concluded that the claimant . . . had some difficulty in prolonged
standing, walking, lifting and carrying due to COPD.”187 The ALJ went on to say that the findings
of Dr. Hawkins were consistent with the finding that Mr. McDowell is able to engage in light
work.188 S.S.R. 83-10 defines light work as requiring “a good deal of walking or standing.”189 The
definition goes further and states that “[s]ince frequent lifting or carrying requires being on one's feet
up to two-thirds of a workday, the full range of light work requires standing or walking, off and on,
for a total of approximately 6 hours of an 8-hour workday.”190
The ALJ’s conclusion that Dr. Hawkins’ assessment is consistent with the definition of light
work suggests that when Dr. Hawkins said Mr. McDowell would have some difficulty with
“prolonged” standing and walking he must have meant difficulty with more than six hours of
standing or walking per day, and no significant amount of difficulty with less than six hours per day.
While such a conclusion is not necessarily incorrect, neither the ALJ nor the Commissioner provided
support for that reading. The Commissioner points out that there is no evidence in the agency’s
regulations or rules to the contrary. But on the other hand, there is also no evidence to support the
ALJ’s understanding of Dr. Hawkins’ use of the word “prolonged.” This is problematic because how

186

See 20 C.F.R. § 404 Subpart P App'x 2 Rule 201.01, 201.02.
R. at 20.
188
Id.
189
S.S.R. 83-10.
190
Id.
187

Page 25 of 31

the word “prolonged” is read directly affects whether Dr. Hawkins’ conclusions are indeed in line
with the definition of light work as the ALJ suggests.
Mr. McDowell’s own statements support Dr. Hawkins’ finding that he has difficulty with
standing and walking, and further suggest that Dr. Hawkins’ assessment may not actually be in line
with the definition of light work. On numerous occasions Mr. McDowell complained that he was
unable to stand or walk for prolonged periods.191 These include complaints of shortness of breath
and weakness while walking two blocks to the store in July 2009, the inability to walk on a treadmill
in order to perform an exercise stress test at a hospital in July 2009, only being able to walk two
blocks before becoming fatigued in November 2009, only being able to walk two blocks before
having to stop in January 2010, and only being able to walk about two and a half blocks in March
2010 after starting on inhalers.192
However, the ALJ did not discuss any of these statements made by Mr. McDowell in his
opinion. It is possible that this is because he determined that Mr. McDowell was not credible. The
Commissioner supports this credibility contention by arguing that outside of Mr. McDowell’s
inability to perform the stress test at the hospital, all of the information we have about how far Mr.
McDowell could walk comes from Mr. McDowell’s subjective statements regarding how far he
believed he could walk. However, the ALJ did not specifically discredit Mr. McDowell’s statements
and, in fact, left them out of his opinion altogether, so we have no way to know if he considered
them.
Additionally, while it is fair for the Commissioner to point out that these statements were
subjective, it is important to note the context in which the statements were made. Mr. McDowell told

191
192

R. at 239, 243, 280, 421.
Id.

Page 26 of 31

treating physicians during his various hospital visits about how far he believed he could walk. None
of the treating physicians in the record give any indication in their notes that they had reason to
believe Mr. McDowell was exaggerating, and his inability to complete an exercise stress test at the
hospital lends itself to Mr. McDowell being credible in these particular complaints. Furthermore,
as discussed in the previous section, the ALJ’s credibility finding on Mr. McDowell is lacking the
full support it requires.
Even if the ALJ had properly discredited Mr. McDowell’s statements, if we assume for the
sake of argument that Dr. Hawkins was suggesting that less than six hours of standing or walking
would give Mr. McDowell difficulty, it is important to determine what weight the ALJ gave to other
sources in his RFC assessment. The ALJ purported to give “great weight” to the opinions of
non-examining DDS doctors because they “adequately evaluated the medical record and considered
the combination of impairments.”193 The ALJ does not explain how he determined that the DDS
doctors adequately evaluated the medical record and he gave no explanation for why the DDS
doctors should be given great weight outside of that reason.
According to the regulations, examining doctors, such as Dr. Hawkins, are typically entitled
to greater weight than non-examining doctors.194 The only other physician who physically examined
Mr. McDowell is Dr. Palacci, and she made no findings regarding Mr. McDowell’s ability to stand
and walk. Thus, if Dr. Hawkins’ opinion is inconsistent with the definition of light work, the ALJ
must give further explanation for why he is giving such great weight to the opinions of
nonexamining DDS doctors. “Generally, the more consistent an opinion is with the record as a
whole,” the more weight that is given to that opinion.195 Dr. Hawkins’ statements regarding Mr.
193

R. at 21; see R. at 227-33, 296-98.
20 C.F.R. § 404.1527(c)(1).
195
20 C.F.R. § 404.1527(c)(4).
194

Page 27 of 31

McDowell’s difficulty with standing and walking are consistent with Mr. McDowell’s subjective
statements and at least some medical records, so the nonexamining doctors should be given less
weight unless the ALJ has adequate reasoning.
The ALJ did not construct the required logical bridge from the evidence to his conclusion
that Mr. McDowell is capable of performing light work.196 To address the possible inconsistency
between Dr. Hawkins’ report and the definition of light work, the ALJ should have contacted Dr.
Hawkins to get clarification on what she meant when she used the word “prolonged,” and if she felt
that Mr. McDowell was capable of light work under the definition the regulations provide. Because
the outcome of the case is potentially dependent on what Dr. Hawkins meant in her opinion, this
issue alone provides enough reason to remand the case.
C.

The ALJ’s Finding That Mr. McDowell Could Return to His Past Work

Finally, Mr. McDowell argues that the ALJ’s finding that he could return to his previous
work as a home health care worker was incorrect because the ALJ did not follow the proper analysis
as required by S.S.R. 82-62 in determining whether Mr. McDowell was capable of performing his
past relevant work.
S.S.R. 82-62 requires the ALJ to carefully appraise “the individual's statements as to which
past work requirements can no longer be met and the reason(s) for his or her inability to meet those
requirements,” medical evidence, and in some cases, further evidence of the requirements of the
work as generally performed in the economy.197 In support of his conclusion that Mr. McDowell
could return to his job in home health care, the ALJ stated that “according to the claimant’s own
testimony, he is generally able to perform the essential functions of his past relevant work.”198 The
196

Jones, 623 F.3d at 1160.
S.S.R. 82-62.
198
R. at 21.
197

Page 28 of 31

ALJ also said that Mr. McDowell “provided very vague testimony concerning any specific
limitations that his COPD and hypertension would cause him while working as a home health care
worker.”199
Mr. McDowell argues that the ALJ mischaracterized his testimony. The ALJ’s conclusion
that according to Mr. McDowell’s own testimony he is able to perform the essential functions of his
past relevant work presumably comes from a point in the hearing when Mr. McDowell testified that,
other than lifting restrictions, he thought he could still perform the tasks that were involved in his
previous job working for Dr. Smith.200 However, almost immediately after Mr. McDowell said that,
when his attorney asked him to clarify if he thought he could presently perform the job, Mr.
McDowell said no, he could not, because he got tired too fast and home health care required constant
movement.201 This may suggest Mr. McDowell was confused when he was first asked the question.
Mr. McDowell then testified specifically that he would be too tired to go up and down stairs and
move around as frequently as he did with Charles, and that he would be too tired to push Dr. Smith’s
wheelchair to the extent he used to (approximately six blocks in a day).202 Mr. McDowell also said
he quit his last job when he could no longer perform the required duties.203
The ALJ’s decision does not specifically address the above reasons that Mr. McDowell
offered for being unable to return to his past work except to say that they were “vague.” S.S.R.
82-62 requires the ALJ to develop and fully explain his decision, but the ALJ did not adequately
resolve the conflict between his conclusion and the majority of Mr. McDowell’s testimony at the

199

Id.
R. at 42.
201
Id.
202
R. at 42-45.
203
R. at 41.
200

Page 29 of 31

hearing.204 The Commissioner argues that the ALJ’s failure to address these findings was
inconsequential because the ALJ is not required to address every piece of evidence. However, S.S.R.
82-62 specifically requires an appraisal of the claimant’s statements regarding which past work
requirements he is no longer capable of performing.205 While Mr. McDowell’s testimony may have
appeared vague to the ALJ, S.S.R. 82-62 compels the ALJ to make every effort “to secure evidence
that resolves the issue as clearly and explicitly as circumstances permit.”206 The ALJ should have
asked Mr. McDowell for clarification if he believed the testimony to be too vague.
The ALJ could have more fully developed his determination that Mr. McDowell could return
to his past work as actually performed, or perhaps it would have been beneficial for the ALJ to
discuss how home health care work is performed generally in the economy.207 The ALJ did not make
any findings regarding Mr. McDowell’s job title or its requirements as generally performed in the
economy but he found that Mr. McDowell “is able to perform [the job] as actually and generally
performed.”208 There does not appear to be evidence in the record to support such a determination;
Mr. McDowell testified that he could not return to his work as it was actually performed, and the
ALJ made no determinations about how the job is generally performed.
The Commissioner argues that if this is error, it is a harmless one. However, the error would
only be harmless if the Commissioner showed that the ALJ would very likely reach the same
decision on remand.209 But the Commissioner failed to make such a showing. Thus, it is remanded

204

S.S.R. 82-62.
Id.
206
Id.
207
See S.S.R. 82-62 (stating that in some cases the ALJ should review “supplementary or corroborative
information from other sources such as employers, the Dictionary of Occupational Titles, etc., on the requirements of
the work as generally performed in the economy”).
208
R. at 21.
209
See Spiva, 628 F.3d at 352.
205

Page 30 of 31

for further findings consistent with this opinion.
V.

Conclusion
For the reasons outlined, the Court grants Mr. McDowell’s motion to remand [dkt. 15] and

denies the Commissioner’s motion to affirm [dkt. 24]. This matter is remanded to the SSA for
proceedings consistent with this opinion.
IT IS SO ORDERED.
Date: July 2, 2013

________________________
Susan E. Cox
U.S. Magistrate Judge

Page 31 of 31