Velazquez v. Astrue

Filing 33

MEMORANDUM Opinion and Order: For the reasons set in the order, the Court finds that ALJ Anglada's May 9, 2011 decision failed to provide an adequate basis for the determination that Mr. Velazquez could return to his past relevant work and wheth er or not this work required him to be around moving dangerous machinery. Additionally, the Court finds that ALJ Anglada's determination of the Plaintiff's credibility is deviod of both clear reasoning and support grounded in the evidence i n the record. Accordingly, Mr. Velazquez's motion for summary judgment 15 is granted. This matter is remanded to the Commissioner for further proceedings consistent with this decision. [For further details see order] Signed by the Honorable Susan E. Cox on 5/8/2014. Mailed notice (np, )

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

COSME VELAZQUEZ,
Plaintiff,

v.

CAROLYN W. COLVIN,
Commissioner of Social Security
Administration,
Defendant.

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Case No. 1:12-cv-09583
Magistrate Judge Susan E. Cox

MEMORANDUM OPINION AND ORDER
Plaintiff Cosme Velazquez (“Mr. Velazquez”) seeks judicial review of the final decision of
the Commissioner of Social Security Administration (“Commissioner”), Carolyn W. Colvin,
denying his application for Social Security Disability Insurance (“SSDI”) benefits under Title II
of the Social Security Act, 42 U.S.C. §§ 216(i), 223. Mr. Velazquez filed a motion for summary
judgment seeking reversal of the Commissioner’s decision [dkt. 15]. For the reasons stated
herein, this Court grants Mr. Velazquez’s motion.
I. PROCEDURAL HISTORY
On January 29, 2010, Mr. Velazquez applied for SSDI benefits alleging disability as of
January 1, 2007. 1 He later amended his date of disability to August 29, 2008. 2 Mr. Velazquez
stated that he could no longer work because he suffered from diabetes mellitus, neck, shoulder

1

Administrative Record (“R.”) 195-98. At this time, he also applied for Supplemental Security Income and this
claim was denied on February 24, 2010. He is not presently contesting that decision. R.124-128.
2
R. 276 .

1

and back pain, a left wrist, forearm, and hand injury, and vision problems. 3 On June 14, 2010,
his claim was denied in full. 4 On June 29, 2010, Mr. Velazquez completed a request for
reconsideration. 5 The SSA regional commissioner affirmed the June 14, 2010 denial of benefits. 6
Mr. Velazquez requested a hearing before an Administrative Law Judge (“ALJ”). 7 On May 9,
2011, ALJ Jose Anglada (“ALJ Anglada”) conducted an administrative hearing regarding Mr.
Velazquez’s disability benefits claim. 8 ALJ Anglada issued an unfavorable decision on May 27,
2011. 9 Thereafter, Mr. Velazquez filed a request for review of ALJ Anglada’s decision with the
Appeals Council, which was denied. 10 Pursuant to 42 U.S.C. § 405(g), Mr. Velazquez now
requests judicial review of his denial of SSDI benefits by this Court.
II. STATEMENT OF FACTS
A. Background
Mr. Velazquez was fifty-six years old and had an eleventh grade education from Mexico
when he appeared before ALJ Anglada on May 9, 2011. 11 For twenty-seven years, the majority
of his working career, he worked for Vulcan Materials, which is a facility that takes limestone
out of the ground, heats it in industrial kilns to convert it to lime, and sells the finished product to
steel mills. 12 Mr. Velazquez started at Vulcan Materials as a laborer in 1979, and worked in that
capacity for a number of years before becoming a foreman. 13 He was then promoted to plant

3

R. 65, 140.
R. 136 – 140.
5
R. 144.
6
Id.
7
R. 148-152.
8
R. 8. Also at issue for ALJ Anglada was whether the insured status requirements of the sections 216(i) and 223 of
the SSA were met. ALJ Anglada concluded that Mr. Velazquez’s earning records show he had acquired sufficient
quarters to remain insured through December 31, 2011. Any disability must be established to have existed on or
before that date in order for the Mr. Velazquez to be entitled to a period of disability and disability benefits. R.8.
This issue was not raised by Mr. Velazquez in his summary judgment motion and is not before this Court.
9
Id.
10
R. 1-3.
11
R. 28.
12
R.29, 52, 222.
13
R. 30.
4

2

manager, a position he held for the next fourteen years. 14 Mr. Velazquez was the only plant
manager who worked his way up from a laborer, and to his knowledge, the only plant manager
without a college degree. 15 According to Mr. Velazquez, new management took over and he was
let go in 2006. 16 Mr. Velazquez applied for disability benefits on January 29, 2010 based on the
following medical impairments: diabetes, hypertension, neck and shoulder pain, left wrist,
forearm and hand injury, and non-proliferative retinopathy. 17
B. Mr. Velazquez’s Medical Impairments
The record contains evidence of the following medical impairments: shoulder, and neck
pain, back pain, permanent impairment of the left wrist, forearm and hand, diabetes mellitus,
evidence of diabetic retinopathy, neuropathy and renal problems, hypertension, fatigue, and calf
pain. The facts pertaining to each are discussed below.
1. Shoulder, Neck and Back Impairments
The record reveals that Mr. Velazquez was treated at various medical institutions from
June 2009 through the end of 2010 for his shoulder, neck and back pain. 18 He saw physician
Steven Clar at Alivo Medical Center in June 2009 for bilateral numbness and tingling in the third
through fifth digits of his hands, forearms, and shins and limited movement in his right
shoulder. 19 Following this treatment, his Alivo medical records show continued neck and
shoulder pain. 20

14

R. 30, 51.
R. 56-57.
16
R.56.
17
R. 30.
18
See generally R. 288-503.
19
R. 288.
20
R. 347-48.
15

3

On February 24, 2010, Mr. Velazquez went to Stroger Hospital’s emergency room with
complaints of neck and shoulder pain and numbness to his fingers. 21 An x-ray showed mild
degenerative changes in his lower cervical spine. 22 An MRI taken in April 2010 also revealed
multilevel cervical spondylosis, 23 mild uncovertebral 24 joint disease 25 narrowing the left and
right neural foramens at C3-C4 and C4-C5, a disc bulge and left uncovertebral joint disease
narrowing the left neural foramen at C5-C6, and minimal disk bulge, and mild left neural
foraminal narrowing relate to osteophyte 26 formation, at C6-C7. 27
In June 2010, Mr. Velazquez’s visited the pain clinic at Ambulatory & Community
Health Network of Cook County (ACHN) and he reported that his pain on that day was a four
out of ten and he was experiencing neck pain that was radiating into both hands with an increase
in numbness and tingling. 28 The treatment plan included physical therapy and visits to the pain
clinic for cervical radiculopathy. 29
In August 2010, after completing two months of physical therapy, he reported that his
pain decreased from, at its absolute highest, a seven out of ten to a five out of ten. 30 He also
stated he felt happy that the pain was better controlled. 31

21

R. 331.
R. 376.
23
R. 377. Cervical spondylosis, commonly known as arthritis of the neck, is a degeneration of the joints in the neck.
American Academy of Orthopaedic Surgeons: Cervical Spondylosis,
http://orthoinfo.aaos.org/topic.cfm?topic=a00369 (last visited May 8, 2014).
24
Uncovertable joints are a type of joint that makes up the spine. Physiopedia: Uncovertebral Joints,
http://www.physio-pedia.com/Uncovertebral_Joints (last visited May 8, 2014).
25
Degenerative joint disease is another name for osteoarthritis. See Centers for Disease Control and Prevention:
Arthritis, http://www.cdc.gov/arthritis/basics/osteoarthritis.htm (last visited May 8, 2014).
26
Osteophytes are also known as bone spurs. Bone Spur, http://www.webmd.com/a-to-z-guides/bone-spur-topicoverview (last visited May 8, 2014).
27
R. 390-91, 485.
28
R. 387.
29
Id.; Cervical radiculopathy usually refers to a pinched nerve. American Academy of Orthopaedic Surgeons:
Cervical Radiculopathy, http://orthoinfo.aaos.org/topic.cfm?topic=A00332 (last visited May 8, 2014).
30
R. 512.
31
Id.
22

4

By September 2010, however, Mr. Velazquez had to be fitted for a home traction unit due
to continued and escalating complaints of pain. 32 Dr. Clar’s November 2010 report contained
findings of clinical evidence for bilateral cervical radiculopathy as well as diabetic peripheral
neuropathy. 33 Dr. Clar’s notes showed Mr. Velazquez was started on Gabapentin and Elavil,
which along with a home traction unit and home exercises had decreased his pain from a seven
out of ten to a five out of ten. 34
2. Permanent Left Hand, Wrist, and Forearm Injury
In January of 1994, Mr. Velazquez sustained a severe fracture to his left wrist and
forearm caused by an injury during the course of his employment with Vulcan. 35 In February
1996, Doctor Robert Groya reported that Mr. Velazquez had reached maximum medical
improvement, but had permanent loss of function. 36 Dr. Robert Groya’s report opined that Mr.
Velazquez had permanently lost 85% of the function of his left wrist, hand and elbow. 37
Subsequent to this injury, Vulcan provided Mr. Velazquez with assistance in completing the
paperwork required by his position as plant manager. 38
3. Diabetes
Dr. Wen Yang from Alivo Medical Center documented Mr. Velazquez’s diabetes as
uncontrolled with a possibility of neuropathy explaining the numbness in his hands and legs on
June 19, 2009.39 Insulin was prescribed, and his diabetes was again reported as uncontrolled on
June 25, 2009. 40 Over the next few months, the records show improving blood sugar levels with

32

R. 506.
R. 503.
34
R. 503.
35
R.13.
36
R. 13, 282.
37
Id.
38
R. 39-40.
39
R. 288.
40
R. 289.
33

5

twice a day insulin injections. 41 Mr. Velazquez consistently reported multiple hypoglycemic
episodes per month during this time. 42 Further, in March 2010 there is a note that his insulin may
need to be increased to control his blood sugar levels. 43 In September 2010, he was assessed by
ACHN as a fifty-five year old man with poorly controlled diabetes and hypertension. 44
4. Diabetic Conditions: Eye Disease, Nerve Damage, and Kidney Impairment
On December 10, 2009, Dr. Yang diagnosed Mr. Velazquez with a retinal hemorrhage
and referred Mr. Velazquez to an ophthalmologist. 45 He went to the Specialty Care Center Eye
Clinic through ACHN in February 2010. 46 Eventually, in May 2010, he went to the Illinois Eye
Institute where his listed ocular conditions included “[m]oderate NPDR”. 47 Mr. Velazquez
underwent surgery on both eyes to correct the issues associated with his diabetic retinopathy in
June and September 2010. 48 He also had multiple laboratory tests done which reported high
creatinine levels in his urine. 49 Although a December 7, 2010, renal ultrasound came back
unremarkable, 50 subsequent medical records indicate a diagnosis of “probable chronic renal
failure” from December 17, 2010. 51 Lastly, his November 2010 records document diabetic
peripheral neuropathy, 52 a condition that causes pain, weakness, numbness and/or tingling in the
hands and feet as a result of nerve damage. 53

41

R. 297.
R. 349-56.
43
R. 298.
44
R. 515.
45
R. 295.
46
R.398.
47
NPDR is Non-Proliferative Diabetic Retinopathy; R.437.
48
R. 457.
49
R. 317, 321, 375, 522.
50
R. 493.
51
R. 510.
52
R. 503.
53
See The Columbia Neuropathy Research Center, http://columbianeuropathy.org/whatis.html (last visited May 8,
2014); The Neuropathy Association, http://www.neuropathy.org/site/PageServer?pagename=About_Facts (last
visited May 8, 2014).
42

6

5. Calf-pain
Mr. Velazquez’s records also show a history of pain in his calves. His records from
ACHN stated that he “had some claudication type pain”. 54 Mr. Velazquez reported experiencing
this pain upon walking two to three blocks, and stated he has had to stop walking because of it.55
In December 2010, Mr. Velazquez again sought medical treatment for his calf pain and the
record reveals that he was suffering from claudication symptoms including pain, cramping and
fatigue caused by restricted blood flow, 56 in both legs. 57
6. Hypertension
Mr. Velazquez’s medical records reflect that he has hypertension. 58 In January 2011, a
Carotid Doppler Test showed no hemodynamically significant stenosis. 59 This test did show
some atherosclerotic changes 60 in his carotid arteries. 61
7. Fatigue
In June 2009, Mr. Velazquez experienced insomnia. 62 In February 2010, his records
reflect that he was on sleeping pills to help combat the insomnia. 63 Later, in May 2010, Mr.
Velazquez saw Dr. Clar for fatigue and tiredness after walking one block when he used to be
able to walk two to three blocks. 64 His complaints of insomnia continued through the end of

54

R. 511.
R. 513.
56
National Center for Biotechnology Information: Claudication, http://www.ncbi.nlm.nih.gov/books/NBK235/ (last
visited May 8, 2014).
57
R.525-26.
58
R. 387.
59
Problems with blood flow through the carotid artery. MedlinePlus: Carotid Artery Disease,
http://www.nlm.nih.gov/medlineplus/ency/article/007427.htm (last visited May 8, 2014).
60
Plaque buildup in arteries. National Heart, Lunch, and Blood Institute: What is Atherosclerosis,
https://www.nhlbi.nih.gov/health/health-topics/topics/atherosclerosis/ (last visited May 8, 2014).
61
R. 10, 491; The carotid arteries are the arteries in the neck that deliver oxygen to the brain. Id.
62
R. 288-89.
63
R. 326.
64
R. 347, 445
55

7

2010.

65

Lastly, in February 2011, the medical records report insomnia and “daytime

hypersomnolence.” 66
C. Mr. Velazquez’s Hearing Before the ALJ
On May 9, 2011, Mr. Velazquez and his attorney, Thomas Yates, appeared at the hearing
before ALJ Anglada.

67

Mr. Velazquez testified about the limitations that he had been

experiencing and expanded on the extent of ailments for which he was seeking disability
benefits. 68 He confirmed that his neck pain was the major impairment and it had worsened in the
past few years. He had continuing shoulder, neck and back pain, fatigue, a limited functioning
left wrist and hand, diabetes which left him insulin dependent, hypertension, and calf pain. 69
Mr. Velazquez also expanded on what his job duties as a plant manager generally
entailed. 70 He worked sixteen hours a day, sometimes seven days a week. 71 Specifically, he spent
six to eight hours 72 or seventy percent of his workday outside in the plant, and he lifted between
ten and twenty pounds on the job. 73 Additionally, he had to teach laborers how to use equipment
like a cutting torch, welding machines, plasma cutters, and also how to lay brick. 74 Mr.
Velazquez testified that he also operated machinery like pay loaders, mack trucks, and bobcats. 75
He stated that in the last six months of his employment he worked on and around this

65

R. 473-74.
R. 518; Hypersomnolence is defined as a sleep disorder of central nervous system characterized by prolonged
nocturnal sleep and periods of daytime drowsiness. Hypersomnolence, Idiopathic,
http://www.reference.md/files/D020/mD020177.html (last visited May 8, 2014).
67
R. 8.
68
R. 12.
69
Id.; R.42.
70
R. 32, 39-41, 51-57, 67, 105-112,
71
R. 48-49.
72
R. 32.
73
R. 52-54.
74
R. 53.
75
R. 105-06.
66

8

machinery, 76 this work was not optional, and it was part of his supervisory duties to ensure that
production quotas were met. 77
In his initial disability report, Mr. Velazquez stated that he used machines, tools and
equipment. 78 This initial report also stated that he stood one hour a day and sat nine hours a day
and the heaviest weight lifted was less than ten pounds. 79 However, at the hearing, Mr.
Velazquez clarified that as plant manager, his supervisory role did at times require him to do
some heavy, physical work in addition to supervising other workers.

80

Mr. Velazquez testified

that despite his desire to return to work, he could not because his neck pain and fatigue would
prevent him from completing the duties required by his old position. 81
Pamela Tucker, a Vocational Expert (“VE”) also testified. She identified Mr. Velazquez’s
past relevant work as factory manager, which she categorized as light, skilled work. 82 The
hypothetical posed to the VE was “whether an individual of advanced age with a limited
education, and the past relevant work as stated in Exhibit 8D could lift and carry 20 pounds
occasionally and 10 pounds frequently and can be on his feet standing, walking about six hours
in an eight hour work day and sit about six hours with normal rest periods, and should avoid
working around moving or dangerous machinery could do any of the work he did in the past.” 83
The VE stated that this hypothetical would allow Mr. Velazquez to do his past work. When
asked specifically about the machinery part she testified, “[t]hat’s the part I’m not quite certain

76

R. 111.
Id.
78
R. 222-23.
79
R. 222-23.
80
R. 40-41.
81
R. 64-65. Mr. Velazquez testified that he could also not do a desk job because it would be completely new and he
cannot turn his left wrist flat to type on a keyboard. R. 65-67.
82
R. 71.
83
R. 72.
77

9

about.” 84 ALJ Anglada and the VE discussed how Mr. Velazquez supervised and helped out
sometimes, and concluded that he was not required to do the hands-on work. 85 However, ALJ
Anglada and Mr. Velazquez’s attorney agreed that Mr. Velazquez’s job as a plant manager still
requires him to be around heavy moving machinery. 86 The VE testified that with Mr.
Velazquez’s age and limited education, his transferable skills to another skilled light job in the
national economy would be to “a similar type of work because his job would be supervising
production work.” 87 The VE further testified that a fifty-five year old with limited education and
no transferable skills would be considered disabled. 88 The VE confirmed that if Mr. Velazquez
could not return to his past relevant work and was limited to performing only unskilled jobs, like
the ones the VE gave in her initial response, then Mr. Velazquez would be deemed disabled. 89
Mr. Velazquez’s attorney asked the VE whether a man of “advanced age, limited
education, past work as described in Exhibit, is it 8D, yes, with a lifting requirement of 10 to 20
pounds, inability to be on his feet more than three to four hours a day, and the reason I’m saying
this is because the medical evidence shows that [Mr. Velazquez’s] got diabetic neuropathy 90. . .
swelling in both legs, occasional ability to do repetitive tasks due to cervical pain and loss of
sensation in his hands . . . bilateral upper extremity weakness and decreased function with
numbness in his hands . . . inability to sustain work on a eight hour, five day basis due to fatigue
caused by his diabetes and his pain . . . [whether] with all those limitations can Mr. Velazquez go

84

R. 73.
Id.
86
R. 74.
87
R. 74-76.
88
R. 77-78.
89
R. 78-79. For reference, Mr. Velazquez’s alleged onset of disability was August 29, 2008 when he would have
been almost 54 years old. As of September 27, 2009, Mr. Velazquez turned 55.
90
R. 503.
85

10

back and do his past work?” 91 The VE responded that he could not, and that there were no other
jobs in the national economy that a person with these limitations could do. 92
D. The ALJ’s Decision
ALJ Anglada went through the first four steps of the five-step analysis required by 20
C.F.R. § 404.1520(a). At step one, ALJ Anglada found that Mr. Velazquez had not been engaged
in substantial gainful employment since the alleged disability onset date 93 and had been
unemployed since 2006. 94 At step two, ALJ Anglada determined that Mr. Velazquez suffered
from several “severe” impairments. 95 The impairments ALJ Anglada recognized as severe
included: diabetes, hypertension, neck and shoulder pain due to minimal degenerative changes,
history of wrist injury and history of retinopathy. 96 ALJ Anglada also recognized some of Mr.
Velazquez’s ailments as “non-severe.” 97 The medical issues deemed “non-severe” were his heart
issues, renal failure, fatigue and calf pain. 98 At step three, ALJ Anglada considered Mr.
Velazquez’s severe impairments and found that none met the criteria of one of the listed
impairments, which allows an immediate finding of disability. 99 Moving on to step four, ALJ
Anglada determined Mr. Velazquez’s residual functional capacity (“RFC”). 100
ALJ Anglada found Mr. Velazquez’s RFC to be:
I find that the claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except lifting and carrying less than 20 pounds
occasionally and 10 pounds frequently; standing walking, and sitting about 6 hours in an

91

R. 113-14.
R. 114.
93
20 C.F.R. § 404.1520(b); R. 10.
94
R. 10.
95
Id.
96
R. 10.
97
Id.
98
Id.
99
20 C.F.R. Pt. 404, Subpt. P, App. 1.
100
20 CFR § 404.1520(e).
92

11

8 hour workday with normal rest periods; and no work around moving or dangerous
machinery. 101
ALJ Anglada moved on to determine whether Mr. Velazquez had the RFC to perform the
requirements of his past relevant work. 102 At this point, ALJ Anglada followed a two-step
process to determine: (1) whether there were underlying medically determinable physical or
mental impairment(s) that could cause the alleged symptoms and (2) the intensity, persistence
and limiting effects of the symptoms to determine the extent to which the impairments limit Mr.
Velazquez’s functioning. 103
ALJ Anglada concluded that the “claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, but that claimant’s statements concerning
the intensity, persistence and limiting effects of these symptoms were not credible to the extent
that they are inconsistent with the above RFC.” 104 ALJ Anglada compared Mr. Velazquez’s
severe impairments to the medical evidence and determined that despite the objective medical
evidence in the record, Mr. Velazquez’s claims about the limiting effects of his severe
impairments were not credible. 105
Additionally, on the issue of credibility, ALJ Anglada focused on what he considered
discrepancies between the unsigned and undated disability report and Mr. Velazquez’s
testimony. 106 For example, he noted that Mr. Velazquez’s explanation of his job duties while
testifying differed from and went beyond what he had reported on the initial disability forms.
ALJ Anglada also relied on the fact that Mr. Velazquez was laid off in 2006 and did not apply

101

R. 11.
20 C.F.R. § 404.1520(f).
103
R. 11.
104
R. 12. Parker v. Astrue, 597 F.3d 920, 921-22 (7th Cir. 2010).
105
R. 12 – 14.
106
R. 14.
102

12

for benefits until three years later to discredit his disability claim. 107 Lastly, ALJ Anglada used
Mr. Velazquez’s activities of daily living to portray him as less than credible and further discount
his testimony. 108
Based on the severe impairments he recognized, the VE’s testimony, the medical
evidence in the record, and the discredited testimony of Mr. Velazquez, ALJ Anglada determined
that Mr. Velazquez was capable of performing his past relevant work as a plant manager because
this work “does not require the performance of work-related activities precluded by . . . [his]
RFC.” 109 Thus, ALJ Anglada concluded that Mr. Velazquez had not been under a disability from
January 1, 2007 110 through the date of his decision. 111
III. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this Court’s scope of review is limited to determining whether
the Commissioner’s findings are supported by substantial evidence. 112 Substantial evidence is
“such evidence as a reasonable mind might accept as adequate to support a conclusion.” 113 The
Court does not reweigh the evidence, decide conflicts in the record, make credibility
determinations, or substitute its own judgment. 114 The Court only ensures that the Commissioner
has built a logical bridge between the evidence and his conclusion. 115 This requires a critical
review of both the evidence that supports and the evidence that detracts from the

107

R. 14.
Id.
109
R. 15.
110
See R.276 (showing ALJ Anglada referred to Mr. Velazquez’s original alleged date of disability, which he
amended to August 29, 2008 before the hearing).
111
R. 15.
112
Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).
113
Id. (quoting Rohan v. Charter, 98 F.3d 966, 970 (7th Cir. 1996)).
114
Young v. Barnhardt, 362 F.3d 995, 1001 (7th Cir. 2004).
115
Clifford, 227 F.3d at 872 (citing Green v. Apfel, 204 F.3d 780, 781 (7th Cir. 2000)).
108

13

Commissioner’s decision. In order to affirm the decision, the Court must conclude that the record
contains substantial evidentiary support and a meaningful discussion of the issues. 116
IV. ANALYSIS
Mr. Velazquez contends that ALJ Anglada erred in two regards, and therefore, the Court
must remand the decision for further proceedings. 117 First, Mr. Velazquez contends that, at step
four of the analysis, ALJ Anglada did not set forth the specific demands of Mr. Velazquez’s past
work as a plant manager and failed to make a finding as to whether Mr. Velazquez’s past job or
the job as generally performed required him to work around moving or dangerous machinery in
deciding that he could perform that work. 118 Second, Mr. Velazquez contends that ALJ
Anglada’s credibility finding was insufficient because he used boilerplate language without
offering reasons grounded in the evidence to support his finding of incredibility. 119
A. The ALJ’s RFC Determination at Step Four Lacks any Discussion of Whether Mr.
Velazquez’s Past Work Involved Working Around Moving or Dangerous Machinery.
ALJ Anglada’s RFC determination concluded that Mr. Velazquez could perform light
work, 120 except lifting and carrying less than twenty pounds occasionally and ten pounds
frequently, standing, walking and sitting six hours in an eight hour workday with normal rest
periods and no work around dangerous or moving machinery. 121 ALJ Anglada asserted that this
determination was based on the symptoms to the extent to that they could reasonably be accepted
as consistent with the objective medical evidence and “other evidence.” 122 In sum, ALJ Anglada

116

Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005).
Dkt. 16.
118
Id.
119
Id.
120
20 C.F.R. § 404.1567(b).
121
R. 11; 20 C.F.R. § 404.1545(a)(1) – (4).
122
R. 11.
117

14

found that Mr. Velazquez’s past relevant work was skilled light work, and since he was limited
to light work, he could return to his past relevant work. 123
Mr. Velazquez argues that ALJ Anglada should have set forth specific physical demands
of Mr. Velazquez’s past work, and that summarily characterizing the work as light skilled work
and concluding he could return to his past relevant work, was erroneous.

124

Further, Mr.

Velazquez asserts that because ALJ Anglada made a specific RFC finding that he could not work
around moving or dangerous machinery, he was required to determine if his past relevant work
required him to be around moving or dangerous machinery. Mr. Velazquez cites Smith v.
Barnhart, to support his contention that ALJ Anglada should have determined the specific
physical demands of his past relevant work instead of merely generalizing it as light skilled
work. 125 Mr. Velazquez contends that ALJ Anglada’s lack of clarity when addressing the
conflicting evidence about the demands of his past work and whether it involved working around
moving or dangerous machinery before concluding he could return to it constitutes reversible
error.
In response to this argument, the Commissioner states that ALJ Anglada reasonably
considered the demands of Plaintiff’s past work. The Commissioner argues that Mr. Velazquez’s
past work was skilled, light work and that some of his duties included supervision, maintenance
and development of production standards. 126 Moreover, in response to Mr. Velazquez’s
contention that his past relevant work involved moving or dangerous machinery, the

123

R. 15.
Dkt. 16.
125
Smith, 388 F.3d at 252-53.
126
Dkt. 31.
124

15

Commissioner argues that ALJ Anglada “implicitly concluded” that Mr. Velazquez’s past work
did not involve work around dangerous or moving machinery. 127
The RFC determination sets forth what the claimant can do despite his limitations and
must be made only after consideration of all relevant medical and non-medical evidence and a
claimant’s statements of what he can or cannot do. 128 In Smith, the Seventh Circuit found that the
ALJ erred in summarily concluding that the claimant was not disabled because her RFC
determination was that she could perform sedentary work and her past relevant work was
sedentary. 129 The Court stated that in certain circumstances, a person who is able to do some
sedentary work, but not the work they once did, could still be deemed disabled because of the
specific physical demands of their past relevant work. 130 While the ALJ can determine the
existence of a disability based on whether the applicant can perform the functional demands and
job duties of his past occupation as generally required by that occupation in the national
economy, the job must not be described so broadly as to encompass a wide range of physical and
mental abilities some of which the applicant may not have. 131 Further, in Getch v. Astrue, cited
by the Commissioner, the Seventh Circuit found reversible error when the ALJ in that case,
failed to consider and resolve whether the claimant’s previous position involved conditions
“incompatible with his medical condition.” 132
Here, ALJ Anglada failed to build a logical bridge between the conflicting evidence
contained in the record and the RFC which he relied on to find that Mr. Velazquez could return
to his past relevant work and was not disabled. Although the burden remains on Mr. Velazquez

127

Dkt. 31.
20 C.F.R. § 404.1545(a)(1) – (4).
129
Smith, 388 F.3d at 252.
130
Strittmater v. Schweiker, 729 F.2d 507, 509 (7th Cir. 1984).
131
Smith, 388 F.3d at 253.
132
Getch v. Astrue, 539 F.3d 473, 479, 482 (7th Cir. 2008).
128

16

to prove that he is unable to return to his past relevant work, ALJ Anglada was required to make
findings as to the specific demands of a previous job in deciding that a claimant can return to that
job. 133 ALJ Anglada did not articulate the specific physical demands of Mr. Velazquez’s past
relevant work in concluding that is was light skilled work, which he could perform, or articulate
whether his past relevant work as generally performed required work around moving or
dangerous machinery. Mr. Velazquez’s initial testimony revealed that he worked outside in the
plant, supervised the workers, and at times, had to show them how to use various pieces of
machinery. 134 Mr. Velazquez testified that his duties as plant manager involved operating
dangerous and moving machinery including pay loaders, mack trucks, and bobcats. 135 He stated
that in the last six months of his employment he worked on and around this dangerous
machinery. 136 He clarified that this work was not optional as it was part of his supervisory duties
to ensure that production quotas were met. 137
Moreover, the VE’s testimony highlights ALJ Anglada’s need to address this issue. The
hypothetical she was asked, in part, was “whether an individual of advanced age and the past
relevant work in Exhibit 8D who could lift and carry twenty pounds occasionally and ten pounds
frequently . . . and who should avoid working around dangerous machinery could return to his
past relevant work as plant manager.” 138 The VE testified that the machinery part of the
hypothetical she was “not quite certain about.” 139 ALJ Anglada commented, “working around
moving machinery, he doesn’t have to work on the machinery, he has to supervise the people
who do it.” The VE replied, “Right.” Thus, it seems that it was the VE’s understanding that the
133

Getch, 539 F.3d at 480; Nolen v. Sullivan, 939 F.2d 516, 517-18 (7th Cir. 1991).
R. 32, 40-41, 53.
135
R. 105-06.
136
R. 111.
137
Id.
138
R. 72 (emphasis added).
139
R. 73.
134

17

hypothetical past relevant work did not require work on the machinery. 140 This directly
contradicts Mr. Velazquez’s testimony concerning his required duties, 141 and, ALJ Anglada
failed to reconcile this issue, which was important given that one of Mr. Velazquez’s limitations
prohibited working around moving or dangerous machinery. 142
There is unresolved contradicting evidence in the record regarding Mr. Velazquez’s
duties as a plant manager. 143 On one hand, the VE limited his duties to supervising laborers and
paperwork, but on the other hand Mr. Velazquez’s testimony indicated his duties included work
around and directly with moving and dangerous machinery. 144 In light of the RFC prohibiting
Mr. Velazquez from working around heavy machinery, ALJ Anglada erred by failing to clearly
resolve this conflicting evidence and clearly explain whether he believed that Mr. Velazquez’s
past job required work around heavy machinery. 145 Similar to the ALJ’s in Smith and Getch,
here, ALJ Anglada made only conclusory statements that based on the Mr. Velazquez’s RFC as
compared to “the physical and mental demands of this work, I find that the claimant is able to
perform it as generally performed.” 146 Whether Mr. Velazquez’s past work required him to work
around dangerous machinery directly impacted the hypothetical asked of the VE, ALJ Anglada’s
final RFC determination, and ultimately, the finding of no disability. 147 As the Seventh Circuit

140

R. 73.
R. 11.
142 Id. (emphasis added).
143
R. 222; See also R. 105-06, 107 (Mr. Velazquez testified that at times he did the same work as the laborers, but
the ALJ found this testimony incredible because Mr. Velazquez did not include it in his original SSA Disability
Report form).
144
R. 105-06.
145
Getch, 539 F.3d at 481 (stating that although the ALJ does not have to provide in writing his consideration of
every piece of evidence, he should have considered whether the claimant could return to past relevant work despite a
condition that may be in direct contradiction of a listed limitation in the RFC).
146
R. 15.
147
See Getch, 539 F.3d at 481 (reversing because the ALJ failed to adequately consider the impact of the claimant’s
workplace environment on his ability to return to his past relevant work).
141

18

instructed in Smith and Getch, concluding a claimant can perform his past relevant work, without
considering the specific physical demands of the position constitutes reversible error. 148
B. The ALJ’s Credibility Determination
ALJ Anglada discounted Mr. Velazquez’s testimony concerning the extent of his
disabilities. 149 ALJ Anglada’s decision deems Mr. Velazquez’s testimony incredible to the extent
that there were inconsistencies with ALJ Anglada’s residual functional capacity assessment. 150
ALJ Anglada concluded that Mr. Velazquez was less than fully credible. 151 ALJ Anglada’s
determination of incredibility is premised on inconsistencies between the disability report and his
testimony at the hearing, the fact that Mr. Velazquez was laid off work in 2006 but did not apply
for benefits until three years later, and ALJ Anglada’s view that Mr. Velazquez’s allegations of
disabling limitations were not consistent with his activities of daily living. 152
Mr. Velazquez contends that the ALJ’s credibility finding consisted of meaningless
boilerplate language, which was not sufficiently grounded in the objective evidence in the
record. First, Mr. Velazquez asserts that his testimony at the hearing was a more detailed
description of his job duties and medical problems, and that did not warrant ALJ Anglada
considering his testimony inconsistent for purposes of finding him incredible. Second, the
objective medical evidence supported his claims for disability. Third, ALJ Anglada overemphasized the fact that Mr. Velazquez had been laid off from his last job as plant manager in
2006 and did not file an application for disability until 2010. Finally, ALJ Anglada’s use of his
daily activities as support to find his claims incredible was improper.

148

Smith, 388 F.3d at 252; Getch, 539 F.3d at 480, 484.
R. 14.
150
R. 12.
151
R. 14.
152
Id.
149

19

In response, the Commissioner argues that ALJ Anglada properly considered the
inconsistencies between Mr. Velazquez’s testimony and the report he filed when initially
applying for disability in sufficient detail to offset the use of boilerplate language. 153 Also, the
Commissioner argues that ALJ Anglada’s conclusion that the medical evidence did not support
Mr. Velazquez’s claim that his neck pain was his major impairment was not a
mischaracterization of the evidence in the record. 154 The Commissioner relies on the April 2010
MRI results and the fact that Mr. Velazquez reported being happy with the physical therapy he
received. 155 The Commissioner argues that ALJ Anglada did not err when he considered the fact
that Mr. Velazquez was laid off from his job and did not leave for medical reasons. Finally, the
Commissioner contends that ALJ Anglada appropriately relied on Mr. Velazquez’s daily
activities as inconsistent with his complaints of disability to support his overall finding of
incredibility. 156
The record is replete with ALJ Anglada’s credibility findings concerning Mr.
Velazquez’s claims. 157 While this Court will not disrupt these findings in full, the ALJ’s
determinations that Mr. Velazquez’s testimony was generally incredible are problematic in two
regards. 158 First, there is corroborating objective medical evidence in the record to support Mr.
Velazquez’s statements. Second, ALJ Anglada improperly relied on Mr. Velazquez’s daily
activities to discredit his claims of disability and determine he could return to his past relevant
work.

153

Dkt. 31.
Id.
155
Id.
156
Id.
157
R. 14.
158
R. 12.
154

20

1. The Objective Medical Evidence
ALJ Anglada discounted both the objective medical evidence in the record and Mr.
Velazquez’s corroborating testimony at the hearing to find Mr. Velazquez’s articulation of the
intensity, persistence and limiting effects of his symptoms of disability not credible. 159 Mr.
Velazquez cites Bjornson v. Astrue arguing that ALJ Anglada’s credibility finding was
insufficient because it uses language the Seventh Circuit has declared “meaningless
boilerplate.” 160 Mr. Velazquez also cites Filus v. Astrue, for the proposition that the Seventh
Circuit only allows the use of boilerplate language if the ALJ offered reasons grounded in the
evidence to support the credibility finding. 161
The Commissioner cites a recent unpublished Seventh Circuit case, Richison v. Astrue,
arguing that the use of boilerplate language does not require reversal where the ALJ “said
more.” 162 Thus, the Commissioner argues that reversal is not appropriate here because ALJ
Anglada “said more” and sufficiently articulated his reasoning for discrediting Mr. Velazquez.163
The Commissioner agrees that the use of boilerplate language alone cannot support a finding of
incredibility.
ALJ Anglada’s determination of credibility is entitled to deference unless it is patently
wrong. 164 In reviewing a credibility determination, the Court looks to the reasoning and support
used by the ALJ to decide if the decision was patently wrong. 165 The ALJ is required to consider
the entire record, plaintiff’s statements, and the opinions of treating physicians. 166 Additionally,

159

R. 12-14.
Bjornson, 671 F.3d 640, 644-46 (7th Cir. 2012).
161
Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012).
162
Richison v. Astrue, 2012 WL 377674, at *3 (7th Cir. Feb. 7, 2012).
163
Filus, 694 F.3d at 868.
164
Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001).
165
Jens v. Barnhart, 347 F.3d 209, 213-14 (7th Cir. 2003).
166
SSR 96-7p.
160

21

the Seventh Circuit has held that if subjective complaints of pain are substantiated by medical
evidence in the record, the Commissioner cannot disregard them. 167
Here, ALJ Anglada found Mr. Velazquez’s report of limitations incredible despite the
objective medical evidence in the record to support each of the claimed impairments. Unlike in
the Richison case cited by the Commissioner, ALJ Anglada does not explain why he discredits
testimony that is clearly supported by objective medical evidence in the record. 168 Instead, he
eventually discredits the vast majority of Mr. Velazquez’s testimony concerning his medical
impairments. In Scivally v. Sullivan, the Seventh Circuit found that the ALJ erred in concluding
that claimant’s allegations of pain and limitations were inconsistent and unsubstantiated when
there was evidence in the record that the claimant had degenerative arthritis, disc bulging, and
bone spurs, that could reasonably be expected to cause pain. 169 In that case, the Seventh Circuit
held that where the ALJ improperly disregarded objective medical evidence and complaints of
pain, further proceedings were required to determine the claimant’s actual residual functional
capacity. 170
Similarly, Mr. Velazquez’s subjective reports of pain in regards to his neck, shoulder, and
back impairment are corroborated by the medical evidence. His medical record clearly
substantiates that he suffers from multilevel spondylosis (arthritis of the neck), bulging disc, and
osteophytes (bone spurs). 171 Also, like in Scivally, Mr. Velazquez’s records continuously refer to

167

Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992); see also Carradine v. Barnhart, 360 F.3d 751, 753 (7th
Cir. 2004).
168
Richison, 2012 WL 377674, at *3.
169
Scivally, 966 F.2d at 1077.
170
Id. at 1078.
171
R. 390-91.

22

complaints of pain and treatment plans intended to address these issues. 172 Further, Mr.
Velazquez attended physical therapy for the continued pain associated with these problems. 173
Instead of viewing this as corroborating evidence, the ALJ used this against Mr.
Velazquez highlighting that after two months of physical therapy Mr. Velazquez reported having
less pain. 174 Although Mr. Velazquez experienced improvement, some improvement with
treatment is expected. 175 At no time did Mr. Velazquez report not being in some kind of pain
from his back, shoulder and neck impairments. The record indicates that following physical
therapy, Dr. Clar prescribed Mr. Velazquez a medication used to treat pain, Gabapentin 176 and
arranged for him to have a home tracking unit, both of which are only explained as further
treatment for his back, neck and shoulder pain. The record shows that Mr. Velazquez’s pain
continued and corroborated his testimony of ongoing complaints of pain. 177
Further, at the hearing, Mr. Velazquez testified that he did physical therapy for as long as
it was allowed. 178 After his doctor stopped the therapy, he was told there was nothing else they
could do, and the neck and shoulder pain was something he had to deal with. 179 Mr. Velazquez
testified that he received a prescription for pain medication to manage the pain in his shoulders
and neck that he had been taking for a year at the time of the hearing. 180 He testified that the pain
in his neck is constant. 181 Accordingly, this Court finds that ALJ Anglada erred in discrediting
Mr. Velazquez when the objective medical evidence substantiated his subjective reports of pain,
172

R. 511.
R. 512.
174
R. 14.
175
R. 462.
176
ALJ Anglada also discounted Mr. Velazquez’s treating physician Dr. Clar’s medical decision that these
medications were necessary to treat Mr. Velazquez’s ailments. R. 13; See MedlinePlus: Gabapentin,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a694007.html#other-uses (last visited May 8, 2014).
177
R. 512.
178
R. 43.
179
Id.
180
Id.; R. 44.
181
R. 60.
173

23

and ALJ Anglada failed to offer reasons to discredit Mr. Velazquez. The use of boilerplate
language without further explanation is improper and grounds for remand.
2. Improper Use of Daily Activities
Finally, ALJ Anglada found that Mr. Velazquez’s allegations of disabling limitations
were not consistent with his activities of daily living. 182 Based on this finding, ALJ Anglada
concluded that Mr. Velazquez’s activities of daily living support the conclusion that he is able to
engage in his past relevant work as plant manager.
Mr. Velazquez contends ALJ Anglada erroneously relied on his ability to complete basic
daily activities like caring for his personal grooming, walking a few blocks to the grocery store,
doing light household chores, and paying bills. Mr. Velazquez asserts that ALJ Anglada erred in
concluding that he could return to his past relevant work as a full-time plant manager based, in
part, on his ability to do certain daily activities.
The Commissioner argues that the ALJ’s credibility determination is reasonable and
entitled to substantial deference unless it is shown to be patently wrong. 183 The Commissioner
asserts that ALJ Anglada properly considered Mr. Velazquez’s ability to do certain daily
activities including driving short distances, traveling on public transportation, caring for personal
grooming, grocery shopping, light household chores, and paying bills to find his testimony at the
hearing about the extent of the limitations he suffers less than fully credible. 184
The Seventh Circuit has explicitly said that minimal daily activities should not be used to
support the contention that a claimant can participate in substantial physical activity, like

182

R. 14.
R. 31.
184
Id.
183

24

working a full time job, or to discredit his complaint of pain. 185 In Clifford, the claimant testified
that she completed typical household chores which took around two hours, cooked simple meals,
could vacuum with pain, went to the grocery store a few times a month, carried groceries from
the car to the apartment, babysat her grandchildren, walked three to five blocks for exercise, and
played cards a couple times a month. 186 The ALJ used this testimony to substantiate its finding
that her claims of disabling pain were not credible. The court found that the ALJ erred in using
Clifford’s daily activities to undermine her claims of disabling pain because her ability to
complete minimal daily activities was not enough on its own to support such a finding, and the
objective medical evidence corroborated that she had sought treatment for pain and her other
physical impairments on various occasions. 187
Here, Mr. Velazquez testified that he does not cook, he can walk one and a half blocks to
the grocery store to get groceries, but he is very tired when he gets back. 188 If he walks two
blocks he is very tired. 189 Mr. Velazquez also said he can do light household chores, but he tires
easily when doing outside yard work. Further, Mr. Velazquez’s testified that when his wife
cannot cook, her cousin comes over to cook and clean their household. 190 Based on Seventh
Circuit jurisprudence, ALJ Anglada improperly discredited Mr. Velazquez’s allegations of
disability based on his limited activities of daily living. ALJ Anglada improperly concluded
based on the same activities that Mr. Velazquez could return to his full time work as a plant
manager. It appears that ALJ Anglada focused on other daily activities such as the fact that Mr.
Velazquez watches football, lives with his long-term partner and goes to church to support his
185

Clifford, 227 F.3d at 872; see also Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir. 2005) (stating that the ALJ
erred in equating household work to work in the labor market).
186
Clifford, 227 F.3d at 872.
187
Id.; see also Carradine, 360 F.3d at 755-56 (discussing how the ALJ erred in finding the Plaintiff’s claims of
pain incredible based on the fact that she testified to walking two miles, driving, shopping and doing housework).
188
R. 46-47.
189
Id.
190
R. 50.

25

finding that Mr. Velazquez’s claims were not credible. ALJ Anglada failed to explain how these
activities are evidence that Mr. Velazquez can perform his past relevant work. This Court finds
those activities irrelevant to any meaningful analysis as to whether Mr. Velazquez’s activities of
daily living are inconsistent with his complaints of pain or whether these activities show that he
can perform his past relevant work as a full time plant manager. 191 As such, the ALJ Anglada
inappropriately relied on Mr. Velazquez’s activities of daily living to find Mr. Velazquez’s
testimony concerning his impairments incredible, and also, in using his limited ability to
complete these activities of daily living to support the finding that he can engage in past relevant
work as a plant manager.
V. CONCLUSION
For the reasons set forth above, the Court finds that ALJ Anglada’s May 9, 2011 decision
failed to provide an adequate basis for the determination that Mr. Velazquez could return to his
past relevant work and whether or not this work required him to be around moving or dangerous
machinery. Additionally, the Court finds that ALJ Anglada’s determination of the Plaintiff’s
credibility is devoid of both clear reasoning and support grounded in the evidence in the record.
Accordingly, Mr. Velazquez’s motion for summary judgment [dkt. 15] is granted. This matter is
remanded to the Commissioner for further proceedings consistent with this decision.

ENTERED: May 8, 2014

191

______________________________________
UNITED STATES MAGISTRATE JUDGE
Susan E. Cox

R. 14.

26