DeJohnette, III v. Colvin

Filing 38

MEMORANDUM Opinion and Order. Signed by the Honorable Maria Valdez on 12/23/2015: Mailed notice (lp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBERT DEJOHNETTE, III,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security, 1
Defendant.

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No. 13 C 1787
Magistrate Judge
Maria Valdez

MEMORANDUM OPINION AND ORDER
This action was brought under 42 U.S.C. § 405(g) to review the final decision
of the Commissioner of Social Security denying Plaintiff Robert DeJohnette claim
for Disability Insurance Benefits. The parties have consented to the jurisdiction of
the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons
that follow, DeJohnette’s Motion to Reverse the Decision of the Commissioner of
Social Security is granted in part and denied in part, and the Commissioner’s
motion for summary judgment [Doc. No. 34] is denied.
BACKGROUND
I.

PROCEDURAL HISTORY
On January 7, 2010, Robert DeJohnette, III filed a claim for Disability

Insurance Benefits alleging disability beginning October 15, 2008. The claim was
denied initially and upon reconsideration, after which Dejohnette timely requested
Carolyn W. Colvin is substituted for her predecessor, Michael J. Astrue, pursuant to
Federal Rule of Civil Procedure 25(d).

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a hearing before an Administrative Law Judge (“ALJ”). The hearing was held on
September 22, 2011. DeJohnette, who was represented by counsel, personally
appeared and testified at the hearing. Vocational expert (“VE”) Dr. Jeffrey Lucas
also testified. The ALJ denied DeJohnette’s claim for Disability Insurance Benefits
on October 18, 2011, finding that Dejohnette was not disabled under the Social
Security Act. The Social Security Administration Appeals Council then denied
DeJohnette’s request for review, leaving the ALJ’s decision as the final decision of
the Commissioner and, therefore, reviewable by the District Court under 42 U.S.C.
§ 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).
II.

FACTUAL BACKGROUND 2
A.

Background

DeJohnette was born on June 20, 1969 and was 42 years old at the time of
the ALJ hearing. DeJohnette’s alleged disability arises from a motorcycle accident
on March 25, 2007, during which he suffered a traumatic brain injury; fractures of
his vertebrae, ribs, and femur; and injuries to his legs and feet.
B.

Medical Evidence

After his accident, DeJohnette was treated with extensive surgery and was
later transferred to a rehabilitation hospital, where he underwent treatment for
approximately one and one-half months. After his release from the rehabilitation
hospital, DeJohnette was seen for numerous follow-up visits by Dr. Mark H.
Applebaum. In March of 2008, Dr. Applebaum diagnosed DeJohnette with a gait
dysfunction, mild right shoulder weakness, and mild neuropathic shoulder pain, as
2

The following facts from the parties’ briefs are undisputed unless otherwise noted.

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well as a right foot drop due to nerve injury. Applebaum recommended a course of
physical therapy as well as the pain medication Norco, and also recommended that
DeJohnette wear an “air boot.”
At a follow-up appointment in September 2008, DeJohnette stated that he
was working 4-5 hours per day at a new job doing “indoor computer work with only
occasional light lifting, mostly from waist level.” (R. 252.) He reported continuing
pain in his right shoulder and back, as well as in his right knee and left leg, which
seemed to be influenced by weather. DeJohnette did not report using any pain
medication. (R. 252.) In February 2009, DeJohnette again complained to Dr.
Applebaum of “moder[ate] intermittent discomfort in his back,” right shoulder and
lower extremities. (R. 250.) Dr. Applebaum concluded that DeJohnette’s condition
had “plateaued.” (R. 250). He also noted that DeJohnette “[did] not feel the need for
analgesics and [did] not want any,” and that DeJohnette was “independent in all
A[ctivities of ]D[aily ]L[iving]s and mobility.” (R. 250.)
DeJohnette visited Dr. Applebaum again in June 2008. At this appointment,
DeJohnette reported that he had begun to experience right ankle pain—which
occurred when standing or walking and persisted when he was off his feet—two
months previously. (R. 248.) Dr. Applebaum noted that DeJohnette “still [had] a
foot drop and some numbness,” but reported no other new symptoms. (R. 248.)
DeJohnette also reported that he had “been ambulating without his AFO,” that he
was not using medications, and that he had been using a cane. Id.

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Finally, in September 2009, DeJohnette complained of “some L knee pain
that [had] been going on for a long time,” and which he noticed mostly when
walking. (R. 242.) He also reported pain in his right shoulder, legs, and right ankle,
as well as some numbness in his right ankle. Dr. Applebaum ordered that
DeJohnette undergo physical therapy for his left knee pain, and suggested that he
obtain a “small lift” in his shoe. (R. 244.)
In March 2010, Dr. Mahesh Shah performed a consultative examination of
DeJohnette for the Bureau of Disability Determination Services. Dr. Shah
determined that DeJohnette was obese, walked with a limp, and could not walk 50
feet without the use of a cane. DeJohnette was able to get on and off the examining
table and from a sitting to a supine position without difficulty. He also noted that
DeJohnette had mild tenderness in the lumbar region. DeJohnette had limited
flexion and extension in his right knee, and his straight-leg raise was 60 degrees on
the right, 70 degrees on the left, and that he walked with a “high-stepping gate.” (R.
262.) Dr. Shah also noted that DeJohnette had 3/5 strength in his right lower
extremity, a right foot drop, and no dorsoflexion of his right ankle. X-rays of
DeJohnette’s lumbar spine led Dr. Shah to diagnose DeJohnette with degenerative
disc disease at the L5-S1 levels, (R. 265), and Dr. Shah also noted mild tenderness
in the lumbar region of DeJohnette’s back. (R. 262.)
In April 2012, Dr. Vidya Madala prepared a physical residual functional
capacity (“RFC”) assessment based on a review of DeJohnette’s medical records. Dr.
Madala concluded that DeJohnette could occasionally lift 20 pounds, frequently lift

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10 pounds, stand or walk for two hours in an eight-hour work day, and sit for six
hours in an eight-hour work day. (R. 268.)
C.

Plaintiff’s Testimony

At the hearing, DeJohnette testified that he had received a GED and an
associate’s degree in applied science. He had previously worked for a steel company,
and later for a printing company as a driver and shipping clerk, where he
sometimes was required to lift over 50 pounds. (R. 47-48.) After the accident,
however, DeJohnette was unable to drive a forklift or use a hand jack, and was not
able to keep up with the pace of work because of his pain. He subsequently obtained
a different, part-time job for “a couple of months.” (R. 45.) At this job, DeJohnette
was not required to lift. However, DeJohnette stated that he had been unable to sit
or stand for long periods of time because of his pain, and therefore he had been
forced to quit the job. (R. 47.)
With respect to his current pain, DeJohnette testified that the pain rendered
him unable to “really bend” or to “stand for long periods of time or sit,” (R. 48), and
that his back and legs would stiffen up when he sat for long periods of time. (R. 49.)
DeJohnette described the pain he experienced, on a one-to-ten scale, as “[b]asically
about a nine to a ten,” (R. 56.) and testified that he experienced this pain “[p]retty
much 24 hours a day.” (R. 60.) Because of his pain, DeJohnette had not considered
seeking a job requiring only sedentary work. (R. 58-59.) DeJohnette stated that he
did not take pain medication because it made him sick: hydrocodone had upset his

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stomach, and that he believed that the medication was damaging his stomach and
so had stopped taking it. (R. 52.)
With respect to his physical abilities, DeJohnette testified that it was difficult
for him to lift anything “really heavy,” and that he was unable to perform
“repetitive type work.” (R. 49.) DeJohnette testified that he could walk a block with
the aid of an “AFO boot,” but that he needed to wear the boot because he had a
“drop foot.” (R. 49.) He testified that, he could lift a gallon of milk with his left hand
but, while “it may [have] be[en] possible” to do so with his right hand, he “couldn’t
sit and hold it.” (R. 49.) He was not able to bend without pain, and was not able to
stoop because of the limitations in his legs. (R. 50.) Although he did not have a cane
at the hearing, DeJohnette specified that he used a cane “every now and then . . .
when I’m a little sore, like when it’s raining or cold.” (R. 54.) DeJohnette stated that
he could climb stairs, but if “there’s more than probably five, I have a problem with
that.” (R. 49.) DeJohnette lived at home with his mother, and was able to climb the
six or seven steps to reach the apartment. (R. 50-51.)
With respect to his activities of daily living, DeJohnette stated that he took
public transportation “sometimes.” (R. 51.) There was a store “about four doors
down” from DeJohnette’s apartment, and he was able to walk to the store. (R. 51.)
He also stated that he didn’t help with chores at home because he was prevented
from doing so by pain. (R. 51.) DeJohnette did not really attempt to perform chores
because “trying to lift stuff with my right hand, by my being right handed, I could
easily drop something or, you know, just, it just wasn’t functional because I actually

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slipped one time in the tub and bruised my side real bad so it’s like I don’t really try
a lot of things.” (R. 58.)
D.

Vocational Expert Testimony

Vocational Expert (“VE”) Dr. Jeffrey Lucas first clarified that, in his previous
work, DeJohnette’s tasks included shipping and receiving, forklift driving, and
delivery, sometimes requiring lifting over 50 pounds. (R. 60.) Dr. Lucas concluded
that DeJohnette had experience as a shipping and receiving clerk, with a specific
vocational preparation (SVP) level of five; an industrial truck driver, with an SVP
level of three; and a bindery operator worker, with an SVP level of three. (R. 61-62.)
The ALJ then questioned the VE about a hypothetical person with the same
age, education, and work experience as DeJohnette. Adopting the Dr. Madala’s
evaluation, the ALJ assigned the hypothetical person a residual functional capacity
(“RFC”) limiting him to light work with the ability to stand or walk “with normal
work breaks” for two hours in an eight hour day; the ability to sit with normal work
breaks for six hours of an eight hour day. The individual could only perform work
that did not require the need to balance, crouch, or climb ladders, ropes or scaffolds,
and that required no more than occasional crawling, kneeling, stopping, and
climbing of stairs or ramps. (R. 62.) The ALJ also specified that the work could not
involve exposure to extreme cold or hazards such as machinery or heights. Id.
The VE stated that the hypothetical person would not be able to perform any
of DeJohnette’s past work. Id. When the ALJ asked the VE if “there would be any
acquired work skills or semi-skills that would be transferred to other jobs,” (R. 63.)

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the VE—without naming any specific skills—noted that “[t]hey would be
transferable to a service dispatcher . . . telephone info clerk . . . [a]nd order clerk.”
Id. The VE stated that for service dispatcher, there were 136 jobs regionally and
3,304 jobs nationally; for telephone clerk, there were 223 jobs regionally and 5,464
jobs nationally; and for order clerk, there were 1,449 jobs regionally and 36,598 jobs
nationally. Id. The ALJ asked if the assessment would change if the hypothetical
person “needed to use an assistive device,” and the VE stated that it would not. Id.
Finally, the ALJ asked the VE if the hypothetical person could perform any
other work if the ALJ fully credited DeJohnette’s testimony. The VE stated that
constant pain of a nine or ten is “equivalent to getting burned and needing to go to
the emergency room at all times,” which would preclude employment. Id.
DeJohnette’s attorney then asked if the hypothetical person could perform
any work if he was further limited to “less than occasional handling, fingering,
feeling, reaching in all directions.” (R. 65.) The VE stated that he could perform the
position of surveillance monitor, an unskilled position. Id. The VE specified that
there were 1,073 such jobs in the Chicago region and 33,088 jobs nationally. (R. 67.)
DeJohnette’s attorney also asked the ALJ about “normal work breaks allowed
in competitive work.” (R. 66.) The ALJ stated that a 15 minute break in the morning
and afternoon, plus a 30-minute lunch break was normal, with coffee and bathroom
breaks allowed “pretty much as needed.” (R. 66.) When asked about the percentage
of on-task time required by an average job, the VE stated “85 to 95 percent, with 90
being the average.” Id. The attorney then asked the VE if the work the hypothetical

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individual could perform would change “if there is a need to change positions at will
or a need to lay down?” Id. The VE replied that needing to lay down would be
acceptable on breaks and on lunch, but that otherwise it would preclude
employment. Id.
E.

ALJ Decision

The ALJ analyzed DeJohnette’s application using the five-step procedure for
determining disability under the Social Security regulations. See 20 C.F.R. §
404.1520(a)(4). At step one, the ALJ found that DeJohnette had not engaged in
substantial gainful activity since his onset date of October 15, 2008. At step two, the
ALJ concluded that DeJohnette had severe impairments arising from his motorcycle
accident, as well as severe obesity. At step three, the ALJ examined the Listings
contained at 20 C.F.R. pt. 404, subpt. P, App. 1—including section 1.02, major
dysfunction of a joint(s), among others 3—and concluded that DeJohnette’s
impairments, alone or in combination, did not meet or medically equal a Listing.
The ALJ then determined that DeJohnette retained the residual functional
capacity (“RFC”) to perform sedentary work and light work, provided that the light
work allowed the use of an assistive device, required no more than occasional
stooping, kneeling, crawling, or climbing of ramps or stairs, did not require
balancing, crouching, climbing ladders, ropes, or scaffolds, and did not require
exposure to extreme cold or hazards. In doing so, the ALJ determined that
DeJohnette’s testimony was not fully credible. He concluded that, although he
The ALJ also examined 1.03 and 1.04; DeJohnette does not challenge the ALJ’s findings
on these Listings on appeal.

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believed DeJohnette experienced some pain, the pain was not completely disabling.
Specifically, the ALJ noted that DeJohnette had reported pain to his physicians
that was less severe than he claimed at the hearing; had not reported side effects as
a reason for ending the use of pain medication; and had not followed up on his
referral for physical therapy. The ALJ also found that, while DeJohnette had stated
that he did not perform household tasks, the evidence did not establish that he was
unable to do so. Finally, the ALJ noted inconsistencies in DeJohnette’s testimony,
specifically that DeJohnette stated that he could only walk one block, but later
“acknowledged having walked four blocks to a store,” (R. 32-33), and that—despite
his testimony otherwise—DeJohnette had reported to his physician that he left his
post-accident job because he was laid off due to “economics.” (R. 33.)
At step four, the ALJ concluded that DeJohnette could not perform his past
relevant work. At step five, however, the ALJ determined that DeJohnette could
perform the jobs of service dispatcher, telephone information clerk, order clerk, and
surveillance system monitor, and that these jobs existed in sufficient numbers in
the economy. Therefore, the ALJ concluded DeJohnette was not disabled under the
Social Security Act.
DISCUSSION
I.

ALJ LEGAL STANDARD
Under the Social Security Act, a person is disabled if she has an “inability to

engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which

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has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 423(d)(1)(a). To determine whether a claimant is disabled, the
ALJ considers five questions in order: (1) Is the claimant presently unemployed? (2)
Does the claimant have a severe impairment? (3) Does the impairment meet or
medically equal one of a list of specific impairments enumerated in the regulations?
(4) Is the claimant unable to perform her former occupation? and (5) Is the claimant
unable to perform any other work? See 20 C.F.R. § 404.1520(a)(4).
An affirmative answer at either step 3 or step 5 leads to a finding that the
claimant is disabled. Young v. Sec’y of Health & Human Servs., 957 F.2d 386, 389
(7th Cir. 1992). A negative answer at any step, other than at step 3, precludes a
finding of disability. Id. The claimant bears the burden of proof at steps 1–4. Id.
Once the claimant shows an inability to perform past work, the burden then shifts
to the Commissioner to show the claimant’s ability to engage in other work existing
in significant numbers in the national economy. Id.
II.

JUDICIAL REVIEW
Section 405(g) provides in relevant part that “[t]he findings of the

Commissioner of Social Security as to any fact, if supported by substantial evidence,
shall be conclusive.” 42 U.S.C. § 405(g). Judicial review of the ALJ’s decision is
therefore limited to determining whether the ALJ’s findings are supported by
substantial evidence or based upon legal error. Clifford v. Apfel, 227 F.3d 863, 869
(7th Cir. 2000); Stevenson v. Chater, 105 F.3d 1151, 1153 (7th Cir. 1997).
Substantial evidence is “such relevant evidence as a reasonable mind might accept

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as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971); Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). This Court may not
substitute its judgment for that of the Commissioner by reevaluating facts,
reweighing evidence, resolving conflicts in evidence, or deciding questions of
credibility. Skinner, 478 F.3d at 841; see also Elder v. Astrue, 529 F.3d 408, 413 (7th
Cir. 2008) (holding that ALJ’s decision must be affirmed even if “’reasonable minds
could differ’” so long as “the decision is adequately supported”) (citation omitted).
In cases where the ALJ denies benefits to a claimant, “he must build an
accurate and logical bridge from the evidence to his conclusion.” Clifford, 227 F.3d
at 872. “[A]lthough an ALJ does not need to discuss every piece of evidence in the
record, the ALJ may not analyze only the evidence supporting her ultimate
conclusion while ignoring the evidence that undermines it.” Moore v. Colvin, 743
F.3d 1118, 1123 (7th Cir. 2014); see Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir.
2014) (“This ‘sound-bite’ approach to record evaluation is an impermissible
methodology for evaluating the evidence.”). Instead, “[t]he ALJ must confront the
evidence that does not support her conclusion and explain why that evidence was
rejected.” Moore v. Colvin, 743 F.3d at 1123; see also Murphy v. Astrue, 496 F.3d
630, 634 (7th Cir. 2007) (“An ALJ has a duty to fully develop the record before
drawing any conclusions . . . and must adequately articulate his analysis so that we
can follow his reasoning . . . .”).

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III.

ANALYSIS
In support of his motion, DeJohnette argues that the ALJ erred in

determining that he was not disabled at step three of the disability analysis, in
assessing his credibility with respect to the effects of his impairments, and in
determining his RFC. Although, as will be discussed below, any error in the ALJ’s
step three analysis or his assessment of DeJohnette’s credibility was harmless, the
ALJ erred in assessing DeJohnette’s RFC, and that error was not harmless.
Accordingly, remand is appropriate in this case.
A.

The ALJ Erred in Assessing DeJohnette’s RFC.

DeJohnette claims that, in determining his RFC, the ALJ erred by failing to
specifically address evidence from the hearing that DeJohnette was unable to sit for
significant periods of time and that he needed to lie down during the day to
accommodate his pain. (Pl.’s Mem. at 14). An RFC is the most that a claimant can
do despite his limitations, and is “used to determine [a claimant’s] ability to engage
in various levels of work (sedentary, light, medium, heavy, or very heavy.).”
Clifford, 227 F.3d at 872 n.7; see 20 C.F.R. § 404.1545(a)(1); SSR 96-8p, 1996 WL
374184. 4 “In determining an individual’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.”

Interpretive rules, such as Social Security Rulings (ASSR@), do not have force of law
but are binding on all components of the Agency. 20 C.F.R. ' 402.35(b)(1); accord Lauer v.
Apfel, 169 F.3d 489, 492 (7th Cir. 1999).
4

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Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009); see SSR 96-8p, 1996 WL
374184, at *7.
The evidence that DeJohnette presented on both points was not extensive.
With respect to his inability to sit, DeJohnette testified that he had left his postaccident job because the pain had proven incompatible with the demands, as he was
not able to “sit for long periods of time or stand for long periods of time.” (R. 46-47.)
DeJohnette later reiterated that he could not “stand for long periods of time or sit,”
(R. 48.), and specified that his back and legs would stiffen up when he sat for long
periods of time. (R. 49.) With respect to his need to lie down during the day,
DeJohnette’s testimony was also brief: in response to his attorney’s request to
describe a “typical day,” DeJohnette replied that he “[p]retty much just sat for a
little bit, laid down for a little bit, sat, stood up, sat down, lay down a little bit, just,
you know . . . .” (R. 57.)
Despite this minimal presentation, however, limitations on DeJohnette’s
ability to sit and stand and a need to lie down were clearly part of the ALJ’s
analysis, at least in a hypothetical capacity. After the VE had listed the four jobs
which he found DeJohnette able to perform, the ALJ asked the VE whether his
answer would change “if there is a need to change positions at will with a need to lie
down?” (R. 66.) To this, the VE replied that he thought such an individual “could lay
down on his break and on his lunch, but I don’t think lying down in a, in the office
would be acceptable.” Id. The VE’s testimony established, therefore, that if a
hypothetical individual with DeJohnette’s characteristics needed to change position

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at will or lie down for significant periods during the day—as DeJohnette contended
he did—such a limitation would preclude all employment and necessitate a finding
of disability.
In his opinion, however, the ALJ did not address DeJohnette’s alleged need to
change positions during day or his need to lie down during the day in any capacity;
it is therefore unclear whether he considered this evidence in determining that
DeJohnette was not disabled. An ALJ has a duty to “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.
“[A]lthough an ALJ does not need to discuss every piece of evidence in the record,
the ALJ may not analyze only the evidence supporting her ultimate conclusion
while ignoring the evidence that undermines it.” Moore, 743 F.3d at 1123.
Furthermore, an “ALJ may not discredit a claimant’s testimony about [his] pain and
limitations solely because there is no objective medical evidence supporting it.” Id.
at 562. As DeJonette’s testimony was the only specific evidence on these points, the
ALJ overlooked a “line of evidence” by failing to determine whether or not these
alleged limitations were part of DeJohnette’s RFC.
The ALJ’s failure to consider these alleged limitations therefore leaves the
court unable to evaluate whether the ALJ erred in his analysis, and requires
remand: without being sure the ALJ considered and dismissed these alleged
limitations, it is impossible to determine whether the ALJ accounted for all of
DeJohnette’s pertinent limitations in reaching his conclusion, and therefore

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whether his reliance on the VE’s testimony was sound. See Phillips v. Astrue, 601 F.
Supp. 2d 1020, 1034 (N.D. Ill. 2009) (remanding where impossible to determine
sufficiency of hypothetical question because “the ALJ never adequately resolved the
core factual issue of, inter alia, whether Claimant needed to lie down for one hour
per day.”); cf. Cuevas v. Barnhart, No. 02 C 4336, 2004 WL 1588277, at *15 (N.D.
Ill. July 14, 2004) (error where ALJ failed to address claimant’s testimony that,
“during the day, he experiences pain and fatigue, and needs to take one- to two-hour
naps two to three times a day” and that “evidence [was] unrebutted in the record.”).
Although the evidence presented was minimal on these points, the ALJ’s failure to
explicitly discuss his findings, coupled with his questions to the ALJ, convinces the
Court that it cannot fully review the ALJ’s determination without clarification.
The Commissioner argues that the ALJ did not err because the ALJ generally
discounted DeJohnette’s credibility and because the ALJ adopted the opinion of
state agency physician, Dr. Madala, which concluded that DeJohnette could stand
or walk for at least 2 hours and sit for about 6 hours over the course of an 8-hour
day. (Def.’s Mem. at 8.) While the ALJ did not find DeJohnette fully credible,
however, neither did he “suggest that the claimant [did] not experience pain, but
rather that the medical evidence does not support the extent of the allegations as to
severe pain,” (R. 32.), which could have encompassed DeJohnette’s need to lie down
and stand up. And Dr. Madala’s report does not detail DeJohnette’s claims on this
account, so it is unclear if Dr. Madala in fact considered them. Furthermore, while
such an analysis might support the Commissioner’s conclusion that the alleged

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limitations were not part of DeJohnette’s RFC, the ALJ did not put forward those
arguments, and an agency’s lawyers cannot “defend the agency’s decision on
grounds that the agency itself had not embraced.” See Parker v. Astrue, 597 F.3d
920, 922 (7th Cir. 2010) (discussing SEC v. Chenery Corp., 318 U.S. 80, 87-88
(1943)); see also Larson v. Astrue, 615 F.3d 744, 749 (7th Cir. 2010) (“[T]hese are not
reasons that appear in the ALJ’s opinion, and thus they cannot be used here.”).
This is not to say that the ALJ on remand must find that DeJohnette’s claims
to this extent are credible, and it may very well be that the ALJ on remand does not
find that DeJohnette must lie down or sit or stand at periods incompatible with
employment. However, because without an explicit discussion of these alleged
limitations it is impossible to determine whether the ALJ “evaluate[d] all
limitations that arise from medically determinable impairments, even those that
are not severe,” Villano, 556 F.3d at 563, remand is appropriate.
DeJohnette also argues that the ALJ erred when he failed to determine
which—if any—of the skills DeJohnette had acquired in his past work were
transferable to other work in the national economy. An individual is disabled if, in
addition to his previous work, he is unable to “engage in any other kind of
substantial gainful work” which “exists in significant numbers either in the region
where such individual lives or in several regions of the country.” See 42 U.S.C.A. §
423(d)(2)(A). In determining “the existence in the national economy of work [a
claimant is] able to do, occupations are classified as unskilled, semi-skilled, and
skilled.” 20 C.F.R. § 404.1568. In certain cases, a claimant may have “skilled or

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semi-skilled work activities [the claimant] did in past work [that] can be used to
meet the requirements of skilled or semi-skilled work activities of other jobs or
kinds of work.” Id. § 404.1568(d). “When the issue of skills and their transferability
must be decided, the adjudicator or ALJ is required to make certain findings of fact
and include them in the written decision.” SSR 82-41, 1982 WL 31389, at *7. “[T]he
acquired work skills must be identified, and specific occupations to which the
acquired work skills are transferable must be cited in the . . . ALJ’s decision.” Id.
In this case, the ALJ found that, while DeJohnette could not perform his past
work, he could perform the jobs of service dispatcher and order clerk, of which there
existed 136 and 1,449 jobs in the Chicago metropolitan area, respectively. (R. 35.)
These jobs, however, are classified as semi-skilled. 5 While the VE affirmed in his
testimony that DeJohnette had “acquired work skills or semi-skills that could be
transferred to other jobs” and that those skills were transferrable to the abovementioned jobs, the VE never identified the skills he believed DeJohnette had
acquired. (R. 63.) As the Commissioner concedes, (Def.’s Mem. at 8), the ALJ’s
failure to specify the skills that DeJohnette had acquired from his past work that
were transferrable to these positions constitutes error. See Key v. Sullivan, 925 F.2d
1056, 1062 (7th Cir. 1991).

As identified by the VE, order clerk has a specific vocational preparation (SVP) of three,
and service dispatcher has an SVP of four. See DICTIONARY OF OCCUPATIONAL TITLES §§
209.587-014 (listed as credit-card clerk), 959.167-010 (listed as dispatcher, service) (4th
ed.1991), available at http://www.oalj.dol.gov/LIBDOT.htm. Positions listed in the DOT
with an SVP of three or four are classified as semi-skilled. See SSR 00-4p, 2000 WL
1898704 at *3; 20 C.F.R. § 404.1568(b).
5

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The Commissioner, however, is correct that this error alone would be
harmless. An error in a social security determination is harmless when, considering
the evidence in the record, a court “can predict with great confidence what the
result on remand will be.” McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011); see
also Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010) (holding errors harmless
where “it is predictable with great confidence that the agency will reinstate its
decision on remand”). In addition to the two semi-skilled positions, the ALJ also
found that DeJohnette could perform the jobs of telephone information clerk and
surveillance-system monitor, both of which are unskilled positions. 6 (R. 35.) The VE
also testified that there were, respectively, 223 and 1,073 jobs in the Chicago
metropolitan region. Id. While there is no precise definition of what constitutes
“significant numbers” of existing jobs, the Seventh Circuit has specified that “it
appears to be well-established that 1,000 jobs [in the regional economy] is a
significant number.” Liskowitz v. Astrue, 559 F.3d 736, 743 (7th Cir. 2009).
Therefore, since there were significant unskilled jobs which DeJohnette—regardless
of any transferable skills—was able to perform, the ALJ’s failure to explicitly
discuss which transferable skills DeJohnette possessed alone would be harmless
error. See Connour v. Massanari, 173 F. Supp. 2d 785, 800 (N.D. Ill. 2001), aff’d sub
nom. Connour v. Barnhart, 42 F. App’x 823 (7th Cir. 2002).

Both telephone information clerk and surveillance-system monitor, as identified by the
VE, have an SVP of 2. See DICTIONARY OF OCCUPATIONAL TITLES §§ 237.367-046 (telephone
information clerk); 379.367-010 (surveillance-system monitor). These jobs are therefore
classified as unskilled. See SSR 00-4p, 2000 WL 1898704 at *3; 20 C.F.R. § 404.1568(a).

6

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B.

DeJohnette’s Other Claims

DeJohnette makes other claims—related to the ALJ’s determination that
DeJohnette’s impairments met or equaled Listing 1.02, and his determination of
DeJohnette’s credibility—that he argues necessitate remand of the ALJ’s decision.
However, any errors on these accounts was harmless and would not themselves
necessitate remand. However, as this case otherwise must be remanded, the ALJ
may also want to revisit these areas on remand.
1.

Step Three Analysis

DeJohnette argues first that the ALJ erred because, in determining that the
DeJohnette did not meet or equal Listing 1.02, he failed to adequately evaluate the
evidence presented. See Moore, 743 F.3d at 1123. In this case, however,
DeJohnette’s claims are meritless because the ALJ explicitly addressed the evidence
DeJohnette argues was ignored.
DeJohnette first contends that the ALJ failed to address consulting physician
Dr. Mahesh Shah, M.D.’s opinion that DeJohnette “has a limited range of motion
with flexion and in [sic] his lower extremities,” and overlooked the fact that “Mr.
DeJohnette testified that he had a difficult time ambulating because he could not
bend his right leg at 90 degrees.” (Pl.’s Mem. at 8.) But in the very portion of his
opinion where he discussed Dr. Shah’s “medical consultative examination,” the ALJ
explicitly noted Dr. Shah’s findings with regard to these limitations. (R. 30-31.)
DeJohnette also claims that the ALJ “failed to take in[to] account that [he] could
not walk more than 50 feet without a walking cane,” (Pl.’s Mem. at 8), but the ALJ
explicitly noted that DeJohnette “used a cane when he walked and could not walk
20

50 feet without it” in his analysis of the evidence presented, (R. 30), and limited
DeJohnette’s RFC to work which “allows the use of an assistive device.” (R. 31.)
Although presenting little legal argument on this point, DeJohnette appears
to rely on Ribaudo v. Barnhart, 458 F.3d 580 (7th Cir. 2006) and Brindisi ex rel.
Brindisi v. Barnhart, 315 F.3d 783 (7th Cir. 2003). 7 But reliance on each of these
cases is misplaced. In Ribaudo, the Seventh Circuit found “troubling” that, “in
addition to not mentioning Listing 1.04A,” the ALJ “did not evaluate any of the
evidence on its required criteria that [was] favorable to” the claimant. 458 F.3d at
583. This included failing to analyze the reports of two examining physicians and
various other medical records. Id. at 583-84. And in Brindisi, the Seventh Circuit
reversed the ALJ ‘s decision at step three because it found the “conclusion to be
devoid of any analysis that would enable meaningful judicial review” where the ALJ
failed to “mention the specific listings under which it considered [the claimant’s]
impairments” and because the court was “left to wonder whether the [evidence] was
even considered” when the ALJ failed to mention critical evidence. 315 F.3d at 786.
Here, in contrast, the ALJ explicitly addressed the evidence DeJohnette argues was
overlooked as described above. This is simply not a case where the ALJ failed “to
evaluate any of the evidence that potentially supported [the claimant’s] claim.”
Ribaudo, 458 F.3d at 584.

DeJohnette also mentions Scott v. Barnhart, 297 F.3d 589, 594 (7th Cir. 2002). But in that
case, the Seventh Circuit found error because it “conclude[d] that the ALJ failed to
articulate adequately the bases for his conclusions.” See id. at 595-96. Here, DeJohnette has
not argued that the ALJ failed to properly articulate his conclusions, only that he failed to
adequately evaluate the evidence in doing so; accordingly, Scott is inapplicable to this case.
7

21

Instead, the ALJ confronted the medical evidence and his conclusion that
DeJohnette’s impairments did not meet or equal Listing 1.02 was supported by
substantial evidence. “To meet or equal a listed impairment, the claimant must
satisfy all of the criteria of the listed impairment,” and the claimant bears the
burden to make this showing. Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir. 1999).
Listing 1.02 is “[c]haracterized by gross anatomical deformity . . . and chronic joint
pain and stiffness with signs of limitation of motion or other abnormal motion of the
affected joint(s), and findings on appropriate medically acceptable imaging of joint
space narrowing, bony destruction, or ankylosis of the affected joint(s).” 20 C.F.R. pt
404, subpt. P, App. 1 § 1.02. As the ALJ correctly pointed out, “[t]here was no
indication that the medical examiner observed deformity of any joint,” and
DeJohnette does not point to any medical opinion so finding. The ALJ did not err in
finding that DeJohnette’s impairments did not medically meet Listing 1.02.
The ALJ also did not err when he determined that DeJohnette’s impairments
did not equal Listing 1.02 in their severity. According to the Listings, to ambulate
effectively an individual “must be capable of sustaining a reasonable walking pace
over a sufficient distance to be able to carry out activities of daily living. They must
have the ability to travel without companion assistance to and from a place of
employment or school.” 20 C.F.R. pt. 404, subpt. P, App. 1 § 1.00(B)(2)(b). The
listing specifies that examples of ineffective ambulation include the inability to
“walk without the use of a walker, two crutches or two canes,” “walk a block at a
reasonable pace on rough or uneven surfaces,” “use standard public transportation,”

22

“carry out routine ambulatory activities, such as shopping and banking,” or “climb a
few steps at a reasonable pace with the use of a single hand rail.” Id.
In his analysis, the ALJ noted that DeJohnette had testified that he did not
perform household chores, but did so based on his anticipation that “he would drop
objects if he tried to lift them. Anticipation of difficulty performing tasks is not the
same as inability to perform tasks.” (R. 32.) He also cited to Dr. Appelbaum’s notes,
in which the doctor noted that DeJohnette reported being “independent in all his
activities of daily living and mobility.” (R. 32, 250.) The ALJ also noted that
DeJohnette had testified that he was able to walk one block “if he wore his air boot.”
(R. 32.) DeJohnette also testified that he was able to climb “probably five” stairs
without any problems, (R. 49), and that he regularly climbed six or seven steps to
get to the first to get into his apartment. (R. 50.) And while DeJohnette necessitated
the use of one cane while walking, that does not itself equal the requirements of the
listing. See Walker v. Astrue, No. CIV. 11-107-JPG-CJP, 2011 WL 6122555, at *7
(S.D. Ill. Aug. 19, 2011) report and recommendation adopted, No. 3:11-00107-JPG,
2011 WL 6122553 (S.D. Ill. Dec. 8, 2011) (finding “[t]he use of one cane does not
limit the functioning of both upper extremities” under the Listings).
It is true that the ALJ discussed some of the relevant medical evidence in the
section of his opinion discussing DeJohnette’s RFC, rather than in the portion
discussing the step three analysis specifically. But “[b]ecause it is proper to read the
ALJ’s decision as a whole, and because it would be a needless formality to have the
ALJ repeat substantially similar factual analyses at both steps three and five,” a

23

reviewing court “consider[s] the ALJ’s treatment of the record evidence in support of
both his conclusions at steps three and five.” Rice v. Barnhart, 384 F.3d 363, 370
n.5. (7th Cir. 2004); see also Buckhanon ex rel. J.H. v. Astrue, 368 F. App’x 674, 67879 (7th Cir. 2010) (stating that a reviewing Court “read[s] the ALJ’s decision as a
whole and with common sense.”). In this respect, “blending the step-three and RFC
analysis is not fatal in itself,” because the ALJ built “a logical bridge between the
evidence and each conclusion.” Catchings v. Astrue, 769 F. Supp. 2d 1137, 1144
(N.D. Ill. 2011). Here, while the ALJ’s determination could have been betterarticulated, it was supported by substantial evidence and therefore was not
erroneous. See Jacobson v. Astrue, No. 08 C 50173, 2010 WL 1539871, at *9 (N.D.
Ill. Apr. 16, 2010) (affirming finding that claimant did not meet Listing 1.02 where
claimant could “ambulate at least one block, and [did] not use hand-held assistive
devices that limit the functioning of both upper extremities” and there was “also
evidence that he can travel alone, and that he participates in grocery shopping”).
DeJohnette also argues that the ALJ erred by failing to adequately address
the effects of his obesity at step three. An ALJ must consider the effects of obesity in
determining whether a claimant’s impairments meet or equal a listing. See SSR 021p, 2002 WL 34686281, at *3. Under the ruling, “the ALJ must specifically address
the effect of obesity on a claimant’s limitations.” Villano, 556 F.3d at 562. Obesity
can, alone or in combination with other impairments, medically equal a listing,
resulting in a finding of disability. See SSR 02-1p, 2002 WL 34686281. Where
obesity renders a claimant unable to ambulate effectively, that claimant’s

24

impairments may be equivalent to Listing 1.02. See 20 C.F.R. pt 404, subpt. P, App.
1, § 1.00(B)(2)(a); Mueller v. Astrue, 860 F. Supp. 2d 615, 637 (N.D. Ill. 2012), aff’d
sub nom. Mueller v. Colvin, 524 F. App’x 282 (7th Cir. 2013).
In this case, the ALJ noted that he found DeJohnette’s extreme obesity to be
a severe impairment, and stated that “its effects have been considered in connection
with the claimant’s other conditions.” (R. 29.) However, the ALJ did not explicitly
discuss DeJohnette’s obesity further in the opinion. In a past case, the Seventh
Circuit has found reversible error where an ALJ “mentioned in passing that [a
claimant’s obesity was] a severe impairment but did not consider its significance in
relation to” that claimant’s knee problem. See Martinez v. Astrue, 630 F.3d 693, 698
(7th Cir. 2011). In DeJohnette’s case, the ALJ did no more than this in his opinion;
considered by themselves, then, ALJ’s comments were not enough to adequately
assess the effects of DeJohnette’s extreme obesity at step three.
However, an ALJ’s failure to explicitly discuss the effects of obesity may be
harmless error where remand for explicit consideration would not affect the
outcome of the case. Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004). Where
an ALJ implicitly considers the effects of obesity by adopting the opinion of doctors
who were aware of the condition and where the claimant also fails to specify how
obesity results in impairments in ways not considered by the ALJ, the error is
harmless. See Prochaska v. Barnhart, 454 F.3d 731, 736-37 (7th Cir. 2006); Skarbek,
390 F.3d at 504. In rendering his decision at step three in this case, the ALJ relied
on the report of Dr. Mahesh Shah, the consulting physician who examined

25

DeJohnette. (R. 260 et seq.). Shah’s opinion, in turn, mentioned DeJohnette’s
obesity, (R. 261), but othwersise made no reference as to its effect on his condition.
Such an omission “is not likely to have occurred if [the doctor] thought the obesity
affected or exacerbated a medical issue.” Mueller, 860 F. Supp. at 638. And
DeJohnette has made no argument to the ALJ or to this court as to how his obesity
exacerbated his condition and should have led to a finding of disability in ways not
considered by the ALJ. See Orienti v. Astrue, 958 F. Supp. 2d 961, 983 (N.D. Ill.
2013) (“[A]ny error in failing to mention obesity is harmless if the claimant did not
explain to the ALJ how her obesity aggravated her condition and rendered her
disabled.”).
DeJohnette relies on Martinez, 630 F.3d at 698 and Robinson v. Astrue, 667
F. Supp. 2d 834, 847 (N.D. Ill. 2009), but these cases are distinguishable. In
Martinez, the claimant was extremely obese and a treating physician had noted the
claimant’s obesity as exacerbating her knee problem, which itself was “ ‘well beyond’
minimally invasive surgery and ‘heading for’ knee replacement.” 630 F.3d at 698. In
his opinion, however, “[t]he administrative law judge mentioned in passing that [the
claimant’s obesity was] a severe impairment but did not consider its significance in
relation to [the claimant’s] knee,” rejecting the opinions of treating physicians who
had done so and instead relying on the opinions of non-treating physicians to find
otherwise. Id. In this case, in contrast, the ALJ in fact relied on the medical reports
of record in reaching his conclusion, and—as described above—DeJohnette’s
contentions that the ALJ overlooked such evidence are unavailing. In Robinson, the

26

ALJ erred by “mention[ing] SSR 02–1p’s requirements at [the claimant’s] hearing,”
but failing to mention obesity or the Ruling in the opinion. See 667 F. Supp. 2d at
847-48. In DeJohnette’s case, in contrast, the ALJ—while not discussing obesity
specifically in relation to DeJohnette’s claimed impairments—noted that he found
obesity to be a severe impairment and stated that he considered it in his analysis,
and also discussed the medical evaluations which took that obesity into account.
Although it certainly could have been more comprehensive, any error on the
ALJ’s part in failing to further discuss the effects of DeJohnette’s obesity at step
three of the analysis was harmless. However, given that remand is otherwise
appropriate in this case, the ALJ may wish to make his findings with respect to
DeJohnette’s obesity more explicit.
2.

DeJohnette’s Credibility

DeJohnette also argues that the ALJ erred in determining his credibility. As
part of considering a claimant’s residual functional capacity, an ALJ must
determine the impact of a claimant’s symptoms, including pain. See 20 C.F.R. §
404.1529(d)(4). Because those symptoms “sometimes suggest a greater severity of
impairment than can be shown by objective medical evidence alone,” an ALJ “must
carefully consider the individual’s statements about symptoms with the rest of the
relevant evidence in the case record in reaching a conclusion about the credibility of
the individual’s statements if a disability determination or decision that is fully
favorable to the individual cannot be made solely on the basis of objective medical
evidence.” SSR 96-7p, 1996 WL 374186, at *1.

27

DeJohnette argues first that the ALJ “failed to consider important findings of
the consultative examiner in assessing Mr. DeJohnette’s credibility.” (Pl.’s Mem. at
10.) However, similarly with respect to his arguments at step three of the ALJ’s
analysis, much of the evidence that DeJohnette argues was overlooked by the ALJ
was in fact specifically considered. DeJohnette argues that the ALJ overlooked
medical evidence relating to his use of a cane, range of motion in his lumbar spine
and right knee, problems with his legs, and evidence of his degenerative disk
disease. (Pl.’s Mem. at 11; R. 260-63, 265.) But the ALJ specifically addressed all of
this evidence in his decision. (R. 31, 33.) And, again, although some of the
discussion of this evidence took place before the paragraphs discussing the RFC
determination specifically, as discussed above “it is proper to read the ALJ’s
decision as a whole” and “would be a needless formality to have the ALJ repeat
substantially similar factual analyses at both steps three and five.” Rice, 384 F.3d
at 370 n.5. DeJohnette also argues that ALJ overlooked Dr. Appelbaum’s statement
in treatment notes that DeJohnette “continued to have pain in his left knee, right
shoulder, back, right ankle, and bilateral lower extremities.” (Pl.’s Mem. at 11; R.
242.). But the ALJ in fact made explicit reference to these notes, in which
DeJohnette related his subjective complaints about the pain he experienced. (R. 32.)
The ALJ simply did not overlook evidence in reaching his credibility determination.
DeJohnette also argues that the ALJ erred by “not mak[ing] it sufficiently
clear in his decision the weight given to Mr. DeJohnette’s statements regarding
pain” and by “not providing specific explanations as to why he disbelieved Mr.

28

DeJohnette’s statements about his severe pain.” (Pl.’s Mem. at 11.) In making a
credibility finding, an ALJ must give specific reasons for discrediting a claimant’s
testimony which are “supported by record evidence and . . . [are] >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 (7th Cir.2001)); see SSR 96-7p, 1996 WL
374186, at *2. Where the ALJ’s opinion does so, however, it will be upheld by a
reviewing court unless it is Apatently wrong.@ See Schmidt v. Astrue, 496 F.3d 833,
843 (7th Cir. 2007).
Here, despite errors, the ALJ adequately supported his credibility finding.
The ALJ specifically noted that DeJohnette had not been taking medication for pain
relief, which is a proper consideration under the regulations. See SSR 96-7p, 1996
WL 374186, at *3. When holding a failure to take medication against a claimant, an
ALJ must determine whether a claimant has a “good reason” for failing to do so. See
Shauger v. Astrue, 675 F.3d 690, 695 (7th Cir. 2012). Here, while DeJohnette
testified that he stopped taking pain medication because it made him nauseous, the
ALJ correctly noted DeJohnette had reported to Dr. Applebaum that he “does not
feel [the] need for analgesics and does not want any.” (R. 250.) This contradiction
was appropriately considered by the ALJ in discounting DeJohnette’s credibility.
See SSR 96–7p, 1996 WL 374186, at *5 (“One strong indication of the credibility of
an individual’s statements is their consistency, both internally and with other

29

information in the case record.”). The ALJ also noted that, although referred for
physical therapy, DeJohnette had not pursued such treatment, and DeJohnette did
not offer any explanation for failing to pursue such treatment. These findings
support the ALJ’s credibility determination. See Schmidt, 496 F.3d at 844
(affirming credibility in part because claimant’s “medical history indicate[d] that
she voluntarily discontinued physical therapy and declined to pursue pain
management, both of which cast doubt on the severity of [her] pain and her need to
alleviate it.”). In light of the ALJ’s analysis, the court cannot say that his
determination was “patently wrong.”
DeJohnette also argues that the ALJ failed to properly analyze his activities
of daily living by finding that—although DeJohnette testified that he did not
perform household tasks—there was no indication that he was unable to do so. In
support of this claim, DeJohnette points to his mother’s third party function report
in which she stated that DeJohnette “does not cook,” (R. 174), and his own selfcompleted function report in which he checked “no” next to the question “Do you
prepare your own meals”? (R. 185; Pl.’s Mem. at 12.) “It is axiomatic that the
claimant bears the burden of supplying adequate records and evidence to prove
their claim of disability.” Scheck v. Barnhart, 357 F.3d 697, 702 (7th Cir. 2004)
(citing 20 C.F.R. § 404.1512(c)). Neither of these pieces of evidence stated that
DeJohnette was unable to prepare his own meals, only that he did not. The ALJ
therefore did not err by finding that DeJohnette had failed to establish that he was
unable to prepare his own meals.

30

DeJohnette is correct, however, that the ALJ erred when he found that
DeJohnette had testified that he could walk “four blocks,” found this finding to be
contrary to DeJohnette’s other testimony, and found that this discrepancy
negatively affected DeJohnette’s credibility. (R. 32-33.) As the Commissioner
concedes, (Def.’s Mem. at 4), DeJohnette testified that the store was in fact four
doors—and not four blocks—away from his home. (R. 51.) On remand, the ALJ
should clarify the effect, if any, of this correction on his ultimate findings.
CONCLUSION
For the foregoing reasons, Plaintiff DeJohnette’s Motion to Reverse the
Decision of the Commissioner of Social Security is GRANTED IN PART and
DENIED IN PART, and the Commissioner’s cross-motion for summary judgment
[Doc. No. 34] is DENIED. The Court finds that this matter should be remanded to
the Commissioner for further proceedings consistent with this Order.
SO ORDERED.

ENTERED:

DATE:

___________________________
HON. MARIA VALDEZ
United States Magistrate Judge

December 23, 2015

31