Cervantes v. Astrue

Filing 28

MEMORANDUM Opinion and Order Signed by the Honorable Mary M. Rowland on 3/24/2014. Mailed notice(gel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IDA CERVANTES,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,1

No. 12 C 6381
Magistrate Judge Mary M. Rowland

Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Ida Cervantes filed this action seeking review of the final decision of the
Defendant Commissioner of Social Security denying her application for
Supplemental Security Income (SSI) under the Social Security Act. 42 U.S.C. §
1381a. The parties have consented to the jurisdiction of the United States
Magistrate Judge, pursuant to 28 U.S.C. § 636(c). Plaintiff has filed a motion for
summary judgment requesting the Court to remand the Commissioner’s decision.
For the reasons stated below, the case is remanded for further proceedings
consistent with this opinion.
I. THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS
To recover SSI, a claimant must establish that he or she is disabled within the
meaning of the Social Security Act.2 See Elder v. Astrue, 529 F.3d 408, 409–10 (7th

On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of Social
Security and is substituted for her predecessor, Michael J. Astrue, as the proper defendant
in this action. Fed. R. Civ. P. 26(d)(1).
1

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Cir. 2008). A person is disabled if he or she is unable to perform “any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 20 C.F.R.
§ 416.905(a). In determining whether a claimant suffers from a disability, the ALJ
conducts a standard five-step inquiry:
1. Is the claimant presently unemployed?
2. Does the claimant have a severe medically determinable physical or
mental impairment that interferes with basic work-related
activities and is expected to last at least twelve months?
3. Does the impairment meet or equal one of a list of specific
impairments enumerated in the regulations?
4. Is the claimant unable to perform his or her former occupation?
5. Is the claimant unable to perform any other work?
20 C.F.R. §§ 416.909, 416.920; see Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir.
2000). “An affirmative answer leads either to the next step, or, on Steps 3 and 5, to
a finding that the claimant is disabled. A negative answer at any point, other than
Step 3, ends the inquiry and leads to a determination that a claimant is not
disabled.” Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985). The claimant
bears the burden of proof through Step 4, but at Step 5 the burden shifts to the
Commissioner. Clifford, 227 F.3d at 868.

The regulations governing the determination of disability for SSI are found at 20
C.F.R. § 416.901 et seq. The standard for determining SSI is virtually identical to that used
for Disability Insurance Benefits (DIB). Craft v. Astrue, 539 F.3d 668, 674 n.6 (7th Cir.
2008) (“Although the Code of Federal Regulations contains separate sections for DIB and
SSI, the processes of evaluation are identical in all respects relevant to this case.”).
Accordingly, this Court cites to both DIB and SSI cases.
2

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II. PROCEDURAL HISTORY
Cervantes applied for SSI on April 3, 2009, alleging that she had become
disabled on November 1, 2008.3 (R. at 171). This application was denied initially
and upon reconsideration, after which Cervantes filed a timely request for a
hearing.4 (R. at 25, 131, 137). An Administrative Law Judge (ALJ) conducted a
hearing on October 21, 2010, during which Cervantes testified and was represented
by counsel. (R. at 25, 41). The ALJ also heard testimony from Larry M. Kravitz,
Psy.D., a medical expert and Thomas A. Gusloff, a vocational expert. (R. at 25, 41,
170). Cervantes’s attorney provided an opening statement. (R. at 46–48).
The ALJ denied Cervantes’s request for SSI on November 19, 2010. (R. at 36).
Applying the five-step sequential evaluation process, the ALJ found, at Step 1, that
Cervantes had not engaged in substantial gainful activity since April 3, 2009, the
application date. (R. at 27). At Step 2, the ALJ found that Cervantes had the severe
impairments of status post-left ankle fracture and repair, diabetes, and depression.
(Id). At Step 3, the ALJ determined that Cervantes did not have an impairment or
combination of impairments that met or medically equaled the severity of any of the
listings enumerated in the regulations. (R. at 27–31).

On the SSI Application Summary prepared by the Commissioner, Plaintiff’s onset date
is listed as April 1, 2009. (R. at 171). However, this appears to be a clerical error. (Cf. id. at
25, 122, 128, 158, 174, 195).
3

Cervantes also applied for DIB on April 3, 2009 (R. at 191), but the DIB application
was denied shortly thereafter because her insured status lapsed prior to her alleged onset
date (id. at 174). “In order to be entitled to DIB, an individual must establish that the
disability arose while he or she was insured for benefits.” Briscoe ex rel. Taylor v. Barnhart,
425 F.3d 345, 348 (7th Cir. 2005). The date last insured requirement does not apply to SSI
claims. Compare 20 C.F.R. § 404.131 with id. § 416.202.
4

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The ALJ then assessed Cervantes’s residual functional capacity (“RFC”) and
determined that she had the RFC to perform sedentary work, as defined in 20
C.F.R. § 416.967(a), with the following limitations:
The claimant can lift no more than a maximum of 10 pounds at a time;
occasionally lift and/or carry articles like docket files, ledgers, and
small tools; stand/walk for a total of no more than 2 hours in a normal
8-hour workday; and sit for a total of 6 hours in a normal 8-hour
workday subject to postural limitations of never climbing ladders,
ropes, or scaffolds, occasionally climbing stairs or ramps, occasionally
balance using a hand-held assistive device, and occasionally stoop,
kneel, crouch, or crawl; a manipulative limitation[] of frequently
handling of objects bilaterally; an environmental limitation to avoid
concentrated exposure to wetness; and subject to the limitations of
performing unskilled work that require simple, routine, and repetitive
tasks . . . performed in isolation [in a] stable work environment that
does not have production or pace requirements and that requires only
occasional contact with supervisors, co-workers, and the public.
(R. at 31). At Step 4, the ALJ determined that Cervantes was unable to perform any
past relevant work. (R. at 34). At Step 5, based upon Cervantes’s age, education,
work experience, and RFC, the ALJ determined that there were jobs existing in
significant numbers in the national economy that Cervantes could perform. (R. at
35). Accordingly, the ALJ concluded that Cervantes was not disabled, as defined by
the Social Security Act, since April 3, 2009, the application date. (R. at 35–36).
On April 10, 2012, the Appeals Council denied Cervantes’s request for review.
(R. at 6–11). Cervantes now seeks judicial review of the ALJ’s decision, which
stands as the final decision of the Commissioner. See Villano v. Astrue, 556 F.3d
558, 561–62 (7th Cir. 2009).

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III. STANDARD OF REVIEW
Judicial review of the Commissioner’s final decision is authorized by section
205(g) of the Social Security Act. See 42 U.S.C. § 405(g). In reviewing this decision,
the Court may not engage in its own analysis of whether the plaintiff is severely
impaired as defined by the Social Security Regulations. Young v. Barnhart, 362
F.3d 995, 1001 (7th Cir. 2004). Nor may it “reweigh evidence, resolve conflicts in the
record, decide questions of credibility, or, in general, substitute [its] own judgment
for that of the Commissioner.” Id. The Court’s task is “limited to determining
whether the ALJ’s factual findings are supported by substantial evidence.” Id.
(citing 42 U.S.C. § 405(g)). Evidence is considered substantial “if a reasonable
person would accept it as adequate to support a conclusion.” Indoranto v. Barnhart,
374 F.3d 470, 473 (7th Cir. 2004). “Substantial evidence must be more than a
scintilla but may be less than a preponderance.” Skinner v. Astrue, 478 F.3d 836,
841 (7th Cir. 2007). “In addition to relying on substantial evidence, the ALJ must
also explain his analysis of the evidence with enough detail and clarity to permit
meaningful appellate review.” Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351
(7th Cir. 2005).
Although this Court accords great deference to the ALJ’s determination, it
“must do more than merely rubber stamp the ALJ’s decision.” Scott v. Barnhart, 297
F.3d 589, 593 (7th Cir. 2002) (internal quotations and citation omitted). The Court
must critically review the ALJ’s decision to ensure that the ALJ has built an
“accurate and logical bridge from the evidence to his conclusion.” Young, 362 F.3d at

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1002 (internal quotations and citation omitted). Where the Commissioner’s decision
“lacks evidentiary support or is so poorly articulated as to prevent meaningful
review, the case must be remanded.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir.
2002).
IV. RELEVANT MEDICAL AND VOCATIONAL EVIDENCE
Cervantes was born on December 27, 1968 and was forty years old when she
filed for SSI. (R. at 171). At the time of the hearing, she possessed an eighth-grade
education. (R. at 84). Between 1993 and 2000, she held various jobs in the
housekeeping and manufacturing industries. (R. at 84, 210). As of the hearing,
Cervantes lived in a first-floor apartment and said that she was able to drive her
automobile several times each week. (R. at 62–63). She also testified that she was
the primary caretaker for her two young children. (R. at 76). Cervantes’s disability
purportedly results from a variety of physical and mental impairments including
diabetes, depression, intermittent explosive disorder, left ankle pain, carpal tunnel
syndrome, and pain on the left side of her body. (R. at 33, 46–48, 199).
A. Physical Impairments
1. Pre-hearing Medical Evidence
In 1992, Cervantes underwent surgery for a fractured left ankle and
subsequently began experiencing pain in the ankle. (R. at 46, 63, 725). The pain
intensified in 1998 and by 2005, it had spread to the last three left toes, the lateral
aspects of her left foot, calf, and thigh, her left buttock, and her lower back. (R. at
725). In addition, Cervantes has had diabetes since at least 2004. (R. at 28).
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In 2005, Cervantes underwent an MRI, which showed a heel spur and tibio-talar
osteoarthritis. (R. at 725). She was referred to a pain clinic, which provided her with
a “CAM Walker,” a cane, and prescriptions for pain medication. (Id). On December
30, 2008, Cervantes was diagnosed with “[c]alcaneal spur causing chronic heel pain”
as well as “sensory neuropathy of L5+S1 over the 4th and 5th digits of the left foot.”
(R. at 292).
On May 21, 2009, Dilip Patel, M.D., examined Cervantes on behalf of the
Commissioner, noting the left ankle surgical scar. (R. at 297–301). Dr. Patel also
stated that Cervantes suffered “moderate pain on weightbearing,” as well as
“reduced range of movements and tenderness on the area.” (Id). As for her back,
Cervantes had “mild” stiffness and discomfort, as well as “slightly reduced range of
movements.” (Id). Dr. Patel also commented about Cervantes’s “abnormal” gait,
noting that she was unable to walk more than fifty feet without the use of a cane.
(R. at 300–01). Dr. Patel observed that her hand grips were fine and that she was
able to write, open a jar, and turn a doorknob. (R. at 301).
At an April 15, 2010 appointment, Cervantes reported that she had no feeling
in her two right fingers due to inflammation. (R. at 515). Subsequently, on April 24,
2010, Cervantes was admitted to Adventist GlenOaks Hospital, where she
complained of pain in her left arm with tingling in her left fourth and fifth fingers.
(R. at 588). She stated that the pain had persisted for three weeks. (R. at 588).
On May 5, 2010, Cervantes underwent a consultation at RLT Neurologic
Associates. (R. at 545). There, she was described as having a “one-month history of

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pain and numbness in the left arm.” (Id). The pain started at the base of her neck
on the left side and was radiating down her arm. (Id). She also complained of
paresthesias, weakness in her left hand, and elbow pain. (Id). She felt that her
walking was a “little slower” but denied weakness or numbness “in the lowers.” (Id).
The consultant, Daniel F. O’Reilly, M.D., reported that Cervantes had a “fairly good
range of motion of her neck.” (Id). Dr. O’Reilly found that she had the symptoms of
left C7-8 radiculopathy and that the exam was “remarkable for a sensory
polyneuropathy most likely from diabetes.” (R. at 546).
Dr. O’Reilly ordered an MRI, which found small disc herniations at C4-C5
through C6-C7. (R. at 550). The herniations indented the thecal sac but did not
cause significant spinal stenosis or cord compression. (Id). The MRI also showed
mild narrowing of the left C3-C4 neural foramen, which “appear[ed] to be related to
uncovertebral joint osteophyte.” (Id). But the MRI report noted that Cervantes’s
described symptoms did “not appear to correlate with the left C4 nerve dermatome”
and, thus, the significance of the narrowing was unclear. (R. at 550–51).
A neurodiagnostic report dated June 3, 2010 noted that Cervantes showed
electrophysiologic evidence of (1) median mononeuropathy with entrapment at wrist
(carpal tunnel syndrome); and (2) left-sided motor ulnar neuropathy across the
elbow. (R. at 481, 547).
2. Cervantes’s Hearing Testimony
At the hearing, Cervantes testified that she “constantly” had pain from her left
ankle that radiated up her left leg and into her lower back. (R. at 65, 95). As a

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result, she said, doctors sought to give her “injections” to alleviate the pain. (R. at
65). She had refused, however, due to her belief that past injections had been
ineffective and had caused fleeting benefits. (Id). Cervantes was prescribed a cane
in either 2004 or 2005. (R. at 63–64). She kept the cane with her while in her car
and used it to move around her home, but she did not use it all of the time. (R. at
64). Even with her cane, she could only stand comfortably for less than a half hour
at a time. (R. at 72). In order to alleviate swelling, she needed to elevate both of her
legs about three times per day. (Id). She would then keep them elevated for up to
one hour, and the elevation entailed putting her legs “straight to where” she was
sitting. (R. at 73, 94–95).
Cervantes also testified that she experienced numbness and tingling on her left
side and in her left hand. (R. at 67–69). She said that her right wrist was “worse”
because she had no “strength” with it. (R. at 68–69).
Cervantes testified that she was receiving treatment for her diabetes. (R. at 66).
Originally, she mostly took pills, but she had received insulin during her pregnancy.
(Id). She believed that diabetes had caused problems with her vision, but she was
free of cataracts, glaucoma, and bleeding in her eyes. (R. at 74).
As far as her daily activities, Cervantes testified that she went to church twice a
month but needed to stand up during the service. (R. at 80–81). She also said that
she was becoming uncomfortable during the hearing itself. (R. at 81). Cervantes
testified that she was “rarely” able to pick up her baby. (R. at 70). She stated that
she was unable to grip a doorknob or open a jar and that “constantly things are just

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slipping and falling.” (Id). She said that she was unable to carry ten pounds but
could carry a gallon of milk without slipping. (R. at 71). She also said that she was
able to button her clothes. (R. at 70).
Cervantes testified that she took a variety of medications, but she was unable to
remember their names, aside from Ibuprofen 800. (R. at 64–65). She cited several
side effects of those medications, including stomach pains, dizziness, and bleariness.
(Id).
3. Consultative Evidence
On June 23, 2009, Virgilio Pilapil, M.D., a Disability Determination Services
(DDS) consultant, completed a physical RFC assessment of Cervantes. (R. at 321–
28). Dr. Pilapil opined that Cervantes was limited in that she could (1) occasionally
lift only twenty pounds; (2) frequently lift only ten pounds; and (3) stand/walk for a
total of at least two hours during an eight-hour workday. (R. at 322). Furthermore,
Dr. Pilapil found that Cervantes could sit for a total of six hours in an eight-hour
workday and had an “unlimited” ability to push/pull. (Id). Dr. Pilapil also found
that, while Cervantes had normal range of motion at her right ankle, her left ankle
was “15/20 dorsiflexion, 15/40 plantar flexion.” (Id). She also had a calcaneal spur
that caused “chronic heel pain,” and she experienced “moderate pain on
weightbearing.” (Id). Cervantes’s gait was abnormal, and she was unable to heel toe
walk, squat, or, at times, ambulate without a cane. (Id.). However, her motor
system was normal. (Id).

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Due to pain and limited range of motion in her ankle, Dr. Pilapil noted that
Cervantes was only “occasionally” able to climb ramps or stairs and was “never”
able to climb ladders, ropes, or scaffolds. (R. at 323). Otherwise, Cervantes was
“frequently” able to balance, stoop, kneel, crouch, and crawl. (Id). She also had no
manipulative, visual, communicative, or environmental limitations. (R. at 324–25).
Consistent with his findings, Dr. Pilapil found Cervantes’s statements of limitations
only partially credible. (R. at 326).
4. Post-hearing Medical Evidence
On October 9, 2011—after the ALJ decision and hearing—Cervantes underwent
another set of MRIs. (R. at 788–97). The MRI of her left shoulder joint showed (1)
mild degenerative rotator cuff tendinopathy; (2) large, chronic, multi-component
labral tear in her shoulder; (3) degenerative osteoarthritis of her left shoulder joint;
(4) mild inflammatory arthropathy of the left AC joint; and (5) mild rotator interval
synovitis. (R. at 793).
B. Mental Impairments5
1. Pre-hearing Medical Evidence
On February 16, 2009, Kavita Shah, M.D., performed a psychiatric evaluation of
Cervantes. (R. at 276–86). Dr. Shah noted that Cervantes had reported not “be[ing]
herself” since injuring her ankle in 1992, instead feeling depressed, helpless, and
stressed. (R. at 282). Dr. Shah noted that Cervantes had a sad and irritable affect

Although Plaintiff does not appeal the ALJ’s handling of her mental impairments in
the RFC, the Court will briefly describe those impairments.
5

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and an anxious mood. (R. at 284). Cervantes had only “fair” insight, but her thought
content was seemingly normal. (R. at 284–85).
Throughout 2009, Cervantes underwent a series of mental health evaluations at
the DuPage County Health Department. (R. at 413–50). She was diagnosed with
moderate, recurrent depressive disorder and intermittent explosive disorder. (R. at
420). Cervantes reported problems such as anger, having a quick temper, conflicting
with others, and acting out on impulse. (R. at 414, 416, 420). Further, she said that
she had feelings of paranoia, auditory hallucinations, and thoughts of suicide. (Id).
Health Department evaluations indicated that Cervantes’s memory, concentration,
thought process, and problem-solving ability were each impaired. (R. at 424–25).
In 2009 and 2010, Cervantes was treated at the Transitional Services Center. (R.
at 487–540). A note dated October 14, 2009, indicated that Cervantes was taking
Zoloft and that her mood and sleep were “okay.” (R. at 488). On March 3, 2010, she
reported hopelessness and suicidal thinking, but she said that she would not act on
them. (R. at 506). At a follow-up appointment on April 15, 2010, she stated that she
was “overwhelmed with her children and her health problems.” (R. at 515).
Treatment notes from June 21, 2010 indicated that Cervantes’s symptoms had
improved somewhat. (R. at 523–24).
2. Cervantes’s Hearing Testimony
At the hearing, Cervantes said that she had been receiving treatment for
depression and irritability for “probably” over one year. (R. at 74). She also saw both
a therapist and a psychiatrist every four to six weeks. (R. at 74–75).

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At one point, it had been recommended that Cervantes be hospitalized for
depression. (R. at 75–76). However, she had refused to go because she was pregnant
at the time and she was the only person able to take care of her then-six-year-old
daughter. (Id). In addition, Cervantes had suffered from auditory hallucinations,
although they had not manifested after some of her medications had changed. (R. at
76).
Cervantes stated that on a typical day she would wake up at 7:30 AM and
“scream[] and yell[]” at her eldest daughter to get ready for school. (R. at 83). She
had sleeping difficulties and was only able to sleep for five to six hours each night.
(R. at 76). At the hearing, she was unsure about whether her sleeping issues were
due to her physical or mental problems. (Id). She said that she often felt
“frustrated” by otherwise normal events and would “start screaming . . . yelling,”
and throwing objects around her home. (R. at 89–90).
Cervantes testified that she was able to cook small meals for her children and
tried her best to do their laundry and prepare their meals. (R. at 76, 78–79).
Further, she would occasionally take her eldest daughter to and from school. (R. at
77–78).
Cervantes stated that she did not have any friends. (R. at 79). She also said that
she had not liked being around coworkers because they distracted her. (R. at 80).
3. Consultative Evidence
On June 15, 2009, DDS consultant Erika Altman, Ph.D., completed a mental
RFC assessment of Cervantes. (R. at 317–20). Dr. Altman concluded that Cervantes
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was “moderately limited” with respect to (1) her ability to understand and
remember detailed instructions; (2) her ability to carry out detailed instructions; (3)
her ability to maintain attention and concentration for extended periods; and (4) her
ability to accept instructions and respond appropriately to criticism from
supervisors. (Id).
4. Medical Expert’s Hearing Testimony
The medical expert (ME) gave his medical opinion of Cervantes during the
hearing. He testified that she had major depressive disorder and an intermittent
explosive disorder. (R. at 50). He stated that, although her mental impairments did
not meet or equal any regulatory “listing,” he would expect them to result in
functional limitations. (R. at 50–51). He testified that Cervantes was capable of
understanding and remembering simple and detailed instructions. (R. at 51).
However, she would have difficulty carrying out detailed instructions on a sustained
basis. (Id).
The ME stated that Cervantes’s primary difficulty would involve interpersonal
relationships, but she did have the ability to mostly “maintain some level of
control.” (R. at 52). In sum, the ME would put Cervantes in a routine work
environment, one in which she could perform tasks “relatively independently with
minimal dependence on others.” (R. at 54).
C. Vocational Testimony
At the hearing, the ALJ asked the vocational expert (“VE”) a series of
hypothetical questions. (R. at 100). For each question, the VE was to assume that

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the hypothetical facts pertained to a person of Cervantes’s age, relevant work
history, and education. (Id). For the first hypothetical, the ALJ inquired into the
jobs available to someone who would be capable of lifting up to twenty pounds
occasionally, lifting and carrying up to ten pounds frequently, standing and walking
for about two hours in an eight-hour workday, and sitting for up to six hours in an
eight-hour workday. (Id). Further, the person could occasionally climb ramps or
stairs but could never climb ladders, ropes, or scaffolds. (Id). Other postural
limitations of the hypothetical person would be “at the frequent level.” (Id). In
addition, the hypothetical person would be capable of performing simple, routine,
and repetitive tasks. (R. at 101). The VE testified that this person would be
incapable of performing Cervantes’s past relevant work but could nonetheless
perform several “sedentary and unskilled” jobs. (Id).
For the second hypothetical, the ALJ instructed the VE that the hypothetical
person would possess all of the limitations described in the first hypothetical but
could only occasionally stoop, kneel, crouch, or crawl. (R. at 101–02). Further, the
person’s balance would require the occasional use of an assistive device and, as a
result, the person should not have “exposed concentration” to a slippery work
environment and would not be able to operate “foot controls.” (R. at 102). Moreover,
the person would be limited to only occasional interaction with the public and
coworkers and would be unable to perform “tandem tasks.” (Id). The person’s work
would need to be isolated with only occasional supervision. (Id). The VE testified

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that this person could perform the same jobs identified in response to the first
hypothetical. (R. at 102–03).
For the third hypothetical, the ALJ advised the VE that the hypothetical person
would possess all of the limitations described in the second hypothetical but would
also be limited to “frequent handling.”6 (R. at 104). The VE testified that this person
would still be able perform the jobs identified in response to the first hypothetical
because those jobs required, at a minimum, frequent handling. (Id).
However, in response to a fourth hypothetical, the VE testified that a person
would be incapable of working if she were limited to “occasional handling” in
addition to the aforementioned limitations. (R. at 104–05). Finally, in response to a
fifth hypothetical, the VE testified that a person would be incapable of working if
she were required to elevate her legs three times per workday. (R. at 105).
V. DISCUSSION
Cervantes raises three arguments in support of her request for reversal or
remand: (1) the ALJ’s adverse credibility finding defies meaningful review; (2) the
ALJ’s RFC assessment failed to consider all of Cervantes’s impairments; and (3) the
Appeals Council should have considered new and material evidence.7 (Dkt. 17 at 1).

The Dictionary of Occupational Titles considers it a limitation when one is restricted to
“frequently” engaging in an activity. Dictionary of Occupational Titles Appendix C,
http://www.occupationalinfo.org/appendxc_1.html; see Hulsey v. Astrue, 622 F.3d 917, 924
(8th Cir. 2010). “Frequently” is defined as one-third to two-thirds of the time, whereas
“constantly” is defined as more than two-thirds of the time. See id.
6

In light of the remand, the Plaintiff’s argument that the Appeals Counsel should have
considered new evidence is moot.
7

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A. The ALJ’s Credibility Finding
First, Cervantes argues that the ALJ’s adverse credibility finding was in error.
(Dkt. 17 at 12–13). When a claimant alleges subjective symptoms, the ALJ
evaluates the credibility of those allegations. Social Security Ruling (SSR)8 96-7p.
An ALJ’s credibility determination is granted substantial deference by a reviewing
court unless it is “patently wrong” and not supported by the record. Schmidt v.
Astrue, 496 F.3d 833, 843 (7th Cir. 2007); Powers v. Apfel, 207 F.3d 431, 435 (7th
Cir. 2000). This Court has noted that “[d]emonstrating that a credibility
determination is patently wrong ‘is a high burden.’” See Mueller v. Astrue, 860 F.
Supp. 2d 615, 631 (N.D. Ill. 2012) (quoting Turner v. Astrue, 390 F. App’x 581, 587
(7th Cir. 2010)).
However, an ALJ must give specific reasons for discrediting a claimant’s
testimony, and “[t]hose reasons must be supported by record evidence and must be
‘sufficiently specific to make clear to the individual and to any subsequent reviewers
the weight the adjudicator gave to the individual’s statements and the reasons for
that weight.’” Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539–40 (7th Cir. 2003)
(quoting Zurawski v. Halter, 245 F.3d 881, 887–88 (7th Cir. 2001)). But because an
ALJ is in the best position to observe witnesses, her credibility finding will not be

SSRs “are interpretive rules intended to offer guidance to agency adjudicators. While
they do not have the force of law or properly promulgated notice and comment regulations,
the agency makes SSRs binding on all components of the Social Security Administration.”
Nelson v. Apfel, 210 F.3d 799, 803 (7th Cir. 2000); see 20 C.F.R. § 402.35(b)(1). While the
Court is “not invariably bound by an agency’s policy statements,” the Court “generally
defer[s] to an agency’s interpretations of the legal regime it is charged with
administrating.” Liskowitz v. Astrue, 559 F.3d 736, 744 (7th Cir. 2009).
8

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overturned if it has some support in the record. Dixon v. Massanari, 270 F.3d 1171,
1178–79 (7th Cir. 2001).
Further, when assessing the credibility of an individual’s statements about
symptoms, an ALJ must consider the evidence in light of the entire case record. See
SSR 96-7p. “This includes the medical signs and laboratory findings, the
individual’s own statements about the symptoms, any statements and other
information provided by treating or examining physicians . . . and any other
relevant evidence in the case record.” Id. The ALJ must consider the “individual’s
daily activities” and the “location, duration, frequency, and intensity of the
individual’s . . . symptoms.” Id. Similarly, where the individual attends a hearing
conducted by an ALJ, the ALJ may also consider his or her own observations of the
individual. Id.
In this case, the ALJ found Cervantes to be only “partially credible.” (R. at 34).
In particular, the ALJ noted:
After careful consideration of the evidence, I find that the claimant is
not persuasive, the objective evidence not supporting the extent of the
claimant’s alleged inability to perform work. The claimant’s allegation
of disability relies primarily on her testimony of a history of pain in her
left ankle, but the evidence does not adequately support that
allegation. This is not to suggest that the claimant has not experienced
pain, but there is no evidence indicating the pain would interfere with
her ability to perform work. For example, the claimant testified that
she was able to do many of her household chores unaided and provided
accommodations to herself such as doing less work at any one time or
preparing enough food when cooking to allow for leftovers.
There is also the issue of the claimant’s testimony, which if not lacking
in veracity appears to lack in consistency. For example, the claimant
testified that [she] needed to elevate her legs straight out to reduce
swelling, but there is no[] support for this in the evidence.

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Additionally, the claimant stated that she drives to the store and
drives to pick her daughter up from school. She also testified that she
no longer picked up her infant daughter because the child could walk
and because she now weighed more than the claimant could
comfortably lift. However, I find this testimony suspect as it appears
reasonable that the claimant would do some lifting of her youngest
daughter, for instance, if only to put her in and take her out of the car
seat when the claimant drives.
(R. at 33).
Although the ALJ gave some weight to Cervantes’s testimony, the Court finds
that the ALJ’s reasons for discrediting Cervantes’s credibility were not legally
sufficient or supported by substantial evidence. First, the ALJ based her decision, in
part, on Cervantes’s testimony about her activities of daily living, emphasizing that
Cervantes was able to “do many of her household chores unaided and provided
accommodations to herself such as doing less work at any one time . . . .” (R. at 33).
While it is permissible for an ALJ to consider a claimant’s daily activities when
assessing credibility, the Seventh Circuit has repeatedly instructed that ALJs are
not to place “undue weight” on those activities. Moss v. Astrue, 555 F.3d 556, 562
(7th Cir. 2009); see Punzio v. Astrue, 630 F.3d 704, 712 (7th Cir. 2011) (“[The
claimant’s] ability to struggle through the activities of daily living does not mean
that [the claimant] can manage the requirements of a modern workplace”); Mendez
v. Barnhart, 439 F.3d 360, 362 (7th Cir. 2006) (“The pressures, the nature of the
work, flexibility in the use of time, and other aspects of the working environment as
well, often differ dramatically between home and office or factory or other place of
paid work.”). Further, when an ALJ does analyze a claimant’s daily activities, the

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analysis “must be done with care.” See Roddy v. Astrue, 705 F.3d 631, 639 (7th Cir.
2013).
In this case, the ALJ did not adequately explain how Cervantes’s ability to
perform limited cooking, driving, and laundering evinced an ability to perform fulltime work. See Jelinek v. Astrue, 662 F.3d 805, 812 (7th Cir. 2011) (“[An ALJ] must
explain perceived inconsistencies between a claimant’s activities and the medical
evidence.”). Cervantes merely testified that she was able to perform some domestic
chores, and, even then, her ability to complete those tasks was hampered. The ALJ
noted that Cervantes gave “accommodations to herself such as doing less work at
any one time.” (R. at 33). Similarly, Cervantes testified that she used a cane to move
around her home and occasionally asked another person to accompany her to the
grocery store. (R. at 63–64, 72, 77).
While the nature of personal activities is such that one can often readily attain
accommodations, the modern workplace is far less forgiving. See Bjornson v. Astrue,
671 F.3d 640, 647 (7th Cir. 2012) (“The critical differences between activities of
daily living and activities in a full-time job are that a person has more flexibility in
scheduling the former than the latter, can get help from other persons . . . and is not
held to a minimum standard of performance, as she would be by an employer.”).
Moreover, because of Cervantes’s documented mental impairments and workplace
difficulties, the inherent differences between daily living and full-time work are
even more pronounced in the instant case. Accordingly, the ALJ should have better

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developed her explanation of how Cervantes’s ability to perform daily tasks
supported a finding that she had the ability to work.
In addition, the ALJ found Cervantes incredible because her testimony
“appear[ed] to lack . . . consistency.” (R. at 33). SSR 96-7p indicates that the
“consistency” of a claimant’s statements is a “strong indication of . . . [her]
credibility. But “consistency” may take several forms in a social security case.
According to SSR 96-7p, an ALJ must consider the “degree to which the individual’s
statements are consistent with the medical” evidence, the “consistency of the
individual’s own statements,” and the “consistency of the individual’s statements
with other information in the case record.”
In this case, the ALJ’s use of the term “consistency” was so ambiguous and
perfunctory as to prevent meaningful review. It is not entirely clear to the Court
how the ALJ formed its consistency finding. The ALJ did cite Cervantes’s alleged
need to elevate her legs, stating that the allegation lacked support from the record.
(R. at 33). However, the Court does not know whether the ALJ also intended to find
that Cervantes’s testimony was internally inconsistent—the ALJ did not comment
on this aspect of consistency. See SSR 96-7p.
The Court’s review of the transcript indicates that Cervantes’s own description
of her symptoms was largely consistent. However, because the ALJ made only the
general statement that Cervantes’s testimony lacked “consistency”—and because
the ALJ provided little to no accompanying elaboration—the ALJ’s reasons for
discrediting Cervantes were not “‘sufficiently specific to make clear to [a] . . .

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subsequent reviewer[] the weight’” given to Cervantes’ testimony and the reasons
for that weight. See Lopez, 336 F.3d at 539–40 (quoting Zurawski, 245 F.3d at 887–
88). Because the ALJ used the perceived lack of consistency to justify the credibility
finding, the ALJ should have provided a clearer, more thorough analysis of this
point.
The ALJ apparently found Cervantes’s testimony inconsistent because (1)
Cervantes’s need to elevate her legs was not supported by the evidence; and (2) the
ALJ found “suspect” her statement that she was unable to lift up her daughter. (R.
at 33). As to the first rationale, the ALJ should have provided more explanation
than the single sentence contained in the decision. See Zurawski, 245 F.3d at 887.
On remand, the ALJ will have an opportunity to better explain why Cervantes’
purported need to elevate her legs justified a finding that she was not credible.
However, we briefly note here that a claimant’s allegations of pain may not be
disregarded “solely” because they are unsubstantiated by the objective evidence.
SSR 96-7p; see Johnson v. Barnhart, 449 F.3d 804, 806 (7th Cir. 2006) (“[The ALJ]
cannot disbelieve [the claimant’s] testimony solely because it seems in excess of the
‘objective’ medical testimony.”)
However, the more troubling aspect of the ALJ’s credibility determination
was her treatment of Cervantes’s professed inability to pick up her youngest
daughter. Cervantes testified that she was the primary caregiver for both of her
children and that she did her “best” to take care of their laundry and meals. (R. at
76). She said she drove her automobile several times each week. (R. at 62–63). At

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the time of the hearing, Cervantes’s youngest daughter was only fifteen months old.
(R. at 62). The ALJ labeled the testimony “suspect,” speculating that Cervantes was
nevertheless lifting her daughter from time to time. (R. at 33).
This type of speculation did not constitute “substantial evidence,” cf. Moss, 555
F.3d at 560–61, nor did it provide an “accurate and logical bridge from the evidence”
to the conclusion, see Young, 362 F.3d at 1002. The ALJ never observed Cervantes
interacting with her family. At the very least, the ALJ should have directly raised
her theories at the hearing. Then, Cervantes would have had an opportunity to
rebut or explain the purported inconsistencies. See generally Zurawski, 245 F.3d at
887 (“‘[An ALJ must] investigate all avenues presented that relate to pain . . . .’”)
(quoting Luna v. Shalala, 22 F.3d 687, 691 (7th Cir. 1994).
In sum, the ALJ’s explanation was legally insufficient to conclude that
Cervantes lacked credibility. While we do not hold that the ALJ should have found
Cervantes credible, the foundation underlying the credibility assessment was
inadequate. On remand, the ALJ should fully and clearly explain her credibility
finding, relying on proper bases and supplying satisfactory rationale.
B. The ALJ’s Assessment of Cervantes’s RFC
Next, Cervantes argues that the ALJ’s RFC assessment failed to account for all
of her impairments. (Dkt. 17 at 9). In a social security case, RFC refers to the “workrelated activities [that] the claimant can perform despite her limitations.” Young,
362 F.3d at 1000–01; SSR 96-8p (“RFC is an administrative assessment of the
extent to which an individual’s medically determinable impairment(s), including

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any related symptoms, such as pain, may cause physical or mental limitations or
restrictions that may affect his or her capacity to do work-related physical and
mental activities.”). The RFC “must be assessed based on all the relevant evidence
in the record.” Young, 362 F.3d at 1001; see 20 C.F.R. § 416.945(a)(1). Further, in
determining a claimant’s RFC, “the ALJ must evaluate all limitations that arise
from medically determinable impairments, even those that are not severe, and may
not dismiss a line of evidence contrary to the ruling.” Villano, 556 F.3d at 563.
In this case, because we remand the ALJ’s credibility determination, see supra,
we must remand the RFC determination as well. A claimant’s credibility forms an
integral part of the Step-4 RFC analysis. See SSR 96-8p; SSR 96-7p. And, due to the
possibility that Cervantes’s RFC might differ on remand, we will not extensively
comment on the current RFC finding. Nevertheless, we note several problematic
issues in the interest of preventing their recurrence on remand.
As an initial matter, the parties’ briefs reflect, in their treatment of RFC,
potential confusion between the terms “neuropathy,” “polyneuropathy,”
“mononeuropathy,” and “carpal tunnel syndrome.” On remand, the parties should
strive to avoid misunderstandings involving these concepts. As we understand it,
the term “neuropathy” refers to an abnormal and usually degenerative state of the
nervous system or nerves.9 Neuropathies often result from diabetes, and they can

9

See Merriam-Webster’s Medical Dictionary 457 (1995).

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occur throughout the body.10 “Polyneuropathy” refers to a neuropathy that affects
multiple nerves, while “mononeuropathy” refers to a neuropathy that affects only
one nerve or nerve group.11 “Carpal tunnel syndrome” is an example of a
mononeuropathy.12
Further, the ALJ cited to a neurodiagnostic report dated June 3, 2010, noting
that the report “did not indicate [that] the claimant experienced diabetic
polyneuropathy.” (R. at 29, 481). The report stated that Cervantes had both carpal
tunnel syndrome—“median mononeuropathy with entrapment at wrist”—and “leftsided motor ulnar neuropathy across the elbow.” (R. at 481). Although the report did
not specifically use the term “diabetes,” a neuropathy can nevertheless result from
this disease.13 In no place did the report indicate that Cervantes’s neuropathies
were not the result of diabetes. On the contrary, because Cervantes’s diabetes dated
back to at least 2004, someone who viewed the 2010 report in context could
rationally infer that the neuropathies did, in fact, result from the disease.

See Diabetic Neuropathies: The Nerve Damage of Diabetes, U.S. Dep’t of Health and
Human Servs., http://diabetes.niddk.nih.gov/dm/pubs/neuropathies/ (last visited Jan. 29,
2014) [hereinafter Diabetic Neuropathies].
10

About Peripheral Neuropathy - What is Peripheral Neuropathy?, Center for Peripheral
Neuropathy, Univ. of Chi.,
http://peripheralneuropathycenter.uchicago.edu/learnaboutpn/aboutpn/whatispn/polyvsmon
o.shtml (last visited Jan. 28, 2014).
11

Id. Carpal tunnel syndrome is also considered a “compression neuropathy” because of
the way it affects the nerves of the wrist. See Encyclopedia of Disability and Rehabilitation
489–90 (1995). As with other neuropathies, carpal tunnel syndrome can, but does not
necessarily, result from diabetes. See Types of Peripheral Neuropathy – Compression,
Center for Peripheral Neuropathy, Univ. of Chi.,
http://peripheralneuropathycenter.uchicago.edu/learnaboutpn/typesofpn/compression/carpal
tunnel.shtml (last visited Jan. 28, 2014).
12

13

See Diabetic Neuropathies, supra note 10.

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When the ALJ considers Cervantes’s RFC on remand, the ALJ should more
clearly identify each neuropathy she addresses in the decision. As described supra,
the ALJ should also properly reassess Cervantes’s credibility. Additionally, we urge
the ALJ to more explicitly and specifically describe the extent to which Cervantes’s
diabetes factors into the RFC assessment.
VI. CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Summary Judgment [16] is
GRANTED. Pursuant to sentence four of 42 U.S.C. § 405(g), the ALJ’s decision is
reversed, and the case is remanded to the Commissioner for further proceedings
consistent with this opinion.

E N T E R:
Dated: March 24, 2014
MARY M. ROWLAND
United States Magistrate Judge

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