Kern v. Colvin

Filing 41

MEMORANDUM Opinion and Order - Signed by the Honorable Maria Valdez on 4/11/2017. [For further details see order] Mailed notice (np, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CAROLYN J. KERN,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security, 1
Defendant.

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No. 13 C 8802
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 a claim of Carolyn J. Kern
(“Plaintiff”) 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, Plaintiff’s motion for summary judgment is granted in
part, and the Commissioner’s cross-motion for summary judgment [Doc. No. 31] is
denied.
BACKGROUND
I.

PROCEDURAL HISTORY
On June 14, 2010, Plaintiff applied for Disability Insurance Benefits, alleging

that she had been disabled since April 11, 2006 due to a back injury, difficulty
breathing, chronic obstructive pulmonary disease (“COPD”) and hepatitis C. Her
Nancy A. Berryhill is substituted for her predecessor, Carolyn Colvin, pursuant to
Federal Rule of Civil Procedure 25(d).
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claim was denied initially and upon reconsideration, after which she timely
requested a hearing before an Administrative Law Judge (“ALJ”), which was held
on June 26, 2012. Plaintiff personally appeared and testified at the hearing and was
represented by counsel. (R. 41.) Vocational expert Kari A. Seaver (the “VE”) and
Plaintiff’s friend Sammy Clanton also testified. (R. 41, 152.)
On July 5, 2012, the ALJ denied Plaintiff’s claims for Disability Insurance
Benefits, finding her not disabled under the Social Security Act. (R. 28–36.) The
Social Security Administration Appeals Council then denied Plaintiff’s request for
review (R. 1), 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
A.

Medical

Plaintiff injured her back on February 17, 2005 while performing her job as
delivery-truck driver. (R. 253, 332–33.) After pain relievers and a steroid patch
failed to provide relief, she was referred to orthopedic surgeon Kevin M. Koutsky,
M.D., who first examined her on March 9, 2005. (R. 332–33.) She reported lower
back pain extending to her right leg, as well as numbness and tingling. (R. 332.) A
physical exam revealed decreased pinprick sensation in her right foot, a positive
right-side straight leg test, muscle tenderness and spasm, and limited lumbar range
of motion. (Id.) X-rays showed degenerative disc disease and facet arthrosis. (R.
333.) Dr. Koutsky referred Plaintiff for an MRI and recommended physical therapy

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for lumbar range of motion, strengthening, and stabilization. He also prescribed
anti-inflammatories, muscle relaxers, and pain relievers. (R. 333.)
MRI findings included spondylosis, degenerative disc disease with disc
extrusion, and mild to moderate spinal stenosis, all at the L3 to L5 levels of the
spine. (R. 336.) Plaintiff began a course of physical therapy and continued to follow
up monthly with Dr. Koutsky through the rest of 2005. (R. 336–46.) She saw “a fair
amount of improvement” with physical therapy. (R. 336.) Nevertheless, she
continued to have chronic disabling back pain, even after enduring three epidural
steroid injections. (R. 342.) After discussing the possibility of surgery, Dr. Koutsky
referred Plaintiff to neurosurgeon Kenneth Heiferman, M.D. for further evaluation,
and Dr. Heiferman agreed that surgery was appropriate. (Id.)
Pre-operative evaluation revealed that Plaintiff had Hepatitis C, which she
thought she may have contracted from a blood transfusion in 1989. (R. 407.)
Plaintiff’s back surgery occurred January 31, 2006. Dr. Koutsky and Dr. Heiferman
jointly performed her procedures, consisting of bilateral laminectomy of three
vertebrae, removal of two discs, and lumbar spinal fusion with cages, screws, and
rods. (R. 384.) She remained in the hospital until February 5, 2006.
Plaintiff saw Dr. Koutsky approximately monthly through May 2007. (R.
427–54.) Follow-up X-rays taken on February 16, 2006 showed that her
instrumentation was in good position with good spine alignment at L3–L5, and by
March 16, 2006, her bone graft appeared to be consolidating. (R. 427–28.) She wore
a back brace through April 2006, after which Dr. Koutsky prescribed physical

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therapy. (R. 429.) Through May and June, she made progress with physical therapy.
(R. 430, 433.) Additional X-rays taken in July 2006, six months following her
surgery, showed evidence of solid fusion with instrumentation in good position. (R.
435.) Dr. Koutsky noted that Plaintiff was still off work and prescribed continued
physical therapy. (Id.) He continued to monitor her progress until, more than
thirteen months after her surgery, Dr. Koutsky scheduled her work
hardening/conditioning program, to be followed by a Functional Capacity
Evaluation (“FCE.”) (R. 438–446.)
From March to May 2007, Plaintiff completed a work conditioning program
under the direction of Michael Rose, a certified athletic trainer and functional
assessment specialist. (R. 473–510.) Though she attended all sessions, followed
instructions, used proper lifting technique, and was compliant with the program,
she experienced increased low back pain from the overall work load. (R. 494–95.) On
May 21, 2007, Plaintiff’s last day in the program, Mr. Rose administered an FCE
which provided a detailed assessment of her physical work capabilities. (R. 473–83.)
Mr. Rose indicated Plaintiff could perform work that required a light to medium
level of lifting, but she had pain lifting from floor level. (R. 473, 484.) Mr. Rose also
opined that, during a workday, Plaintiff could tolerate up to four to five hours of
sitting, at sixty-minute durations; three to four hours of standing, at thirty-minute
durations; and “occasional” walking of “moderate distances” adding up to no more
than three to four hours per day. (R. 474.) Tests of her sitting and standing
tolerances, during which the examiner observed her as she performed other

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activities in a seated or standing position, supported those opinions: Plaintiff shifted
her weight frequently and reported low back pain during both the sitting and
standing activities. (R. 482.) After thirty-one minutes of standing, she “went to the
floor” and said her back was killing her, explaining that it hurt to stand in one spot
and she “needed to be moving around.” (R. 482.) Based on other tests, Mr. Rose also
opined that Plaintiff could only occasionally bend, stoop, or crouch. (R. 474.)
Objective tests of Plaintiff’s effort throughout the exam, such as heart rate achieved
and consistency of results, led Mr. Rose to conclude that Plaintiff had exerted a
maximum safe level of effort and that her test results were valid. (Id.)
At Plaintiff’s next appointment with her orthopedic surgeon on May 23, 2007,
Dr. Koutsky released her to work with the restrictions outlined on the FCE. She
was taking medications on an as-needed basis and planned to continue doing her
range of motion and strengthening exercises at home. (R. 447.) She returned to Dr.
Koutsky for follow-up every three months through July 31, 2008, continuing to do
her exercises at home and take medications on an as-needed basis. (R. 454.)
Plaintiff returned to Dr. Koutsky in September 2009 and again in March
2011 reporting additional lower back pain, which Dr. Koutsky characterized as
“chronic.” (R. 455–56.) She continued her home exercises and medication as needed.
(Id.) On March 2011, Dr. Koutsky completed a questionnaire in which he indicated
that Plaintiff had lower back pain status post spinal fusion, characterized by range
of motion limitations and muscle spasms. (R. 511.) He reported that Plaintiff
experienced dizziness and drowsiness form medication. (R. 512.) He opined that

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Plaintiff could walk two blocks before resting or experiencing severe pain, that she
could sit for fifteen minutes before needing to get up, and that she could stand for
fifteen minutes before needing to sit down or walk around. (R. 512.) She could sit for
about two hours and stand or walk for about two hours, total, in a workday. (Id.)
She needed a job that permitted shifting positions at will and will occasionally need
to take unscheduled breaks. (Id.) Dr. Koutsky opined that Plaintiff could never lift
fifty pounds and could only rarely lift twenty pounds in a work setting, but she
could occasionally lift ten pounds and frequently lift less than ten pounds. She could
never twist, stoop, crouch, squat, climb ladders, or climb stairs. He opined that her
pain would occasionally interfere with her attention and concentration at work, and
she was likely to be absent from work more than four days per month as a result of
her impairments or treatment. (R. 511, 513.)
On August 26, 2010, Dr. Timothy Brandt completed a medical evaluation of
Plaintiff. Among the diagnoses he listed were sciatica status post lumbar
laminectomy, depression, and COPD. (R. 400.) He noted that Plaintiff had lower
back pain as well as dyspnea (shortness of breath) on exertion. (R. 402.) He opined
that, while Plaintiff had full capacity for sitting and for performing her activities of
daily living, her capacity for standing was reduced up to 20%; and her capacity for
walking, climbing, pushing, pulling were reduced 20–50%; and her capacity to bend
or stoop was reduced more than 50%. (R. 403.) He opined that she could lift no more
than ten pounds at a time during an eight-hour work day, five days a week. (R.

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403.) He also opined that her mental impairments caused a moderate limitation in
her concentration, persistence, and pace. (Id.)
A January 10, 2011 x-ray confirmed that Plaintiff’s spinal fusion hardware
was in good position, but there were diminished intervertebral spaces and end plate
spurs, and diffuse degenerative disc disease throughout the lumbar spine. (R. 405.)
Internal Medicine Consultative Examiner Debbie Weiss, M.D. reviewed
Plaintiff’s hospital discharge report from January 2006 and Plaintiff’s Function
Report, then examined Plaintiff on January 11, 2011. (R. 407.) At that time,
Plaintiff estimated that she could sit for up to forty minutes and stand for twenty to
thirty minutes. (Id.) She experienced variable levels of lower back pain radiating to
her right leg, and numbness in her right foot. (Id.) Dr. Weiss observed decreased
range of motion in the lumbosacral spine due to pain, and a right-side straight leg
raise test which was positive only in the supine position. (R. 409.) Other ranges of
motion were normal, as was Plaintiff’s capacity for fine and gross manipulation of
her hands and fingers. (R. 411.) She observed no sensory loss or gait impairment.
(R. 410.) Plaintiff also reported constant fatigue, which Dr. Weiss suggested might
be related to Hepatitis C, and shortness of breath on exertion, a possible symptom
of COPD. (R. 407–08.) Dr. Weiss noted that Plaintiff was taking hydroco,
carisoprodol, diazepam, and amitriptyline. (Id.)
Medical consultant Dr. Charles Wabner issued an assessment of Plaintiff’s
Residual Functional Capacity (“RFC”) on January 24, 2011, based on a review of
Plaintiff’s recent x-ray and Dr. Weiss’s report. (R. 412–19.) Dr. Wabner opined that

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Plaintiff could occasionally lift twenty pounds and frequently lift ten pounds; stand
or walk for about six hours in an eight-hour workday; and sit for about six hours in
an eight-hour workday. (R. 413.) He further opined that she could only occasionally
climb ramps or stairs; occasionally balance, stoop, kneel, crouch, or crawl; and never
climb ladders, ropes, or scaffolds. (R. 414.) She should avoid concentrated exposure
to fumes, odors, dusts, gases, and poor ventilation due to her COPD. (R. 416.)
On April 20, 2011, another state agency reviewer, Vidya Madala, M.D.,
reviewed Plaintiff’s file and updated records and affirmed the initial determination.
(R. 541.) Dr. Madala indicated that she had considered Dr. Koutsky’s treatment
notes of March 2011 and noted that Plaintiff was exercising at home at was
neurologically stable. (Id.) She did not indicate whether she had considered Dr.
Koutsky’s 2005–2009 treatment notes or his 2011 questionnaire.
B.

Testimony

In a written Function Report dated December 14, 2010, Plaintiff reported
that she was “extremely fatigued” despite sleeping twelve hours each night; that
she could not walk more than one block without resting to catch her breath; and
that her back pain prevented her from sitting or standing for extended periods of
time. (R. 200, 205.) She was able to perform some cleaning, grocery shopping, and
small loads of laundry, but became exhausted attending to her personal care. (R.
201–203.) She indicated that she could lift no more than ten pounds and could sit
for only thirty minutes before needing to get up and walk around. (R. 205.) She also

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reported that she needed a cane on “bad days” or for long distances. (R. 206.) She
related that her medications made her dizzy, drowsy, and unable to drive. (R. 207.)
At her hearing on June 26, 2012, Plaintiff testified that, after losing utility
service to her house, she had moved in with a neighbor, where she had been living
for two months. (R. 46.) She said she had difficulty going to get the mail from her
mailbox because it made her anxious. Her neighbor got the mail for her, but it was
left unopened in a pile in the living room. (R. 47.) She testified that she had
developed anxiety to the point that it it was hard to go outside any more, even to the
grocery store. (R. 51.) She explained that she was no longer receiving food stamps
because she “messed up” and could not get herself together to go to an appointment.
(R. 48.) Three people had to help her to make it to her hearing that day. (R. 52.) She
had been prescribed Wellbutrin (an antidepressant) but did not have the money for
follow-up appointments to refill the prescription. (R. 63.) Based on her hearing
testimony, her attorney suggested that the ALJ order a psychological consultative
exam. (R. 54.)
As to her physical ailments, Plaintiff testified that, although physical therapy
had helped, the pain was always present and always radiated down her leg. She
needed to take a pill in the morning to get out of bed. She lay down for about four
hours total during the day, in a propped-up reclining position, but still had to get up
to move around. She also slept on the reclining couch at night. She was only
physically capable of working for a few hours a day due to the need to lie down,
which made it impossible for her to go back to her original job and hindered her

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from applying for other work. (R. 50.) She was not sure how long she could
comfortably stand, but estimated “five minutes maybe.” When she sat too long her
pain got “worse and worse,” went down her leg more, and caused her foot to numb.
She had also recently broken her arm, which was “really bad.” (R. 62.) Plaintiff
stated that she could only got to see her doctor every nine months. She believed her
doctor charged her less than he charged other patients, which allowed her to borrow
the money to go. (R. 61–62.)
Plaintiff’s friend Sammy Clanton also testified, stating that he was her
boyfriend and that they had lived together for eight years. (R. 64.) He explained
that Plaintiff could not walk for a long period of time and took frequent naps
throughout the day. (R. 66–67, 70.) She could sit through an hour of television
programs but would get up and walk a little. (R. 68.) He accompanied her when she
left the house because she had trouble going out alone, and she did not look at her
mail. (Id.)
The ALJ next questioned the VE, who identified Plaintiff’s past work as a
delivery driver at the medium level of exertion. (R. 71.) The ALJ asked whether that
work could be performed by someone with an RFC to work a light exertion level;
who could not climb ladders, ropes, or scaffolds; who could occasionally climb ramps
or stairs, balance, stoop, crouch, kneel, and crawl; and who needed to avoid
concentrated exposure to environmental irritants such as fumes, odors, dust, gases,
poorly ventilated areas, and chemicals. (R. 71–72.) The VE opined that such a
person could not perform Plaintiff’s past work due to the exertional requirements.

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Asked by the ALJ whether there were other jobs available in the economy to
someone of the given RFC and Plaintiff’s vocational profile, the VE testified that
such a person could perform the jobs of assembler, sorter, and hand packer. Upon
further questioning, the VE testified that those jobs would allow a sit/stand option,
but would not permit the worker to walk around away from the workstation. (R. 73–
74.)
E.

ALJ Decision

The ALJ found at step one that Plaintiff did not engage in substantial gainful
activity from her alleged onset date of April 11, 2006 through her date last insured
of December 31, 2011. At step two, the ALJ found that Plaintiff had the severe
impairments of status-post spinal fusion; lumbar degenerative disc disease; chronic
obstructive pulmonary disease; and Hepatitis C. (R. 30.) The ALJ concluded at step
three that Plaintiff’s impairments, alone or in combination, do not meet or
medically equal a Listing. (R. 31.) The ALJ then determined that Plaintiff retained
the RFC to perform light work except that she had several postural limitations and
needed to avoid concentrated exposure to poorly ventilated areas, chemicals, and
other environmental irritants such as fumes, odors, dusts, and gases. (R. 31.) Based
on this RFC, the ALJ concluded at step four that Plaintiff was unable to perform
her past relevant work as a delivery driver, which required a medium level of
exertion. (R. 35.) However, at step five, the ALJ considered Plaintiff’s age,
education, work experience, RFC and the VE's testimony and concluded that there
were jobs existing in significant numbers in the national economy that Plaintiff

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remained capable of doing during the relevant period. (R. 36.) As a result, the ALJ
found that Plaintiff 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
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). In order to determine whether a claimant is
disabled, the ALJ considers the following 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? 20 C.F.R. §
416.920(a)(4).
An affirmative answer at either step three or step five 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 three,
precludes a finding of disability. Id. The claimant bears the burden of proof at steps
one through four. 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.

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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
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 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,
or resolving conflicts in evidence. Skinner, 478 F.3d at 841; see also Elder v. Astrue,
529 F.3d 408, 413 (7th Cir. 2008) (holding that the ALJ’s decision must be affirmed
even if “’reasonable minds could differ’” as long as “the decision is adequately
supported”) (citation omitted).
The ALJ is not required to address “every piece of evidence or testimony in
the record, [but] the ALJ’s analysis must provide some glimpse into the reasoning
behind her decision to deny benefits.” Zurawski v. Halter, 245 F.3d 881, 889 (7th
Cir. 2001). 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. The ALJ must at least minimally articulate the “analysis of the evidence
with enough detail and clarity to permit meaningful appellate review.” Briscoe ex

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rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005); 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 . . . .”); see Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir.
2005).
Where conflicting evidence would allow reasonable minds to differ, the
responsibility for determining whether a claimant is disabled falls upon the
Commissioner, not the court. See Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir.
1990). However, an ALJ may not “select and discuss only that evidence that favors
his ultimate conclusion,” but must instead consider all relevant evidence. Herron v.
Shalala, 19 F.3d 329, 333 (7th Cir. 1994); 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.”).
III.

ANALYSIS
Plaintiff argues that the ALJ’s decision must be remanded because: (1) the

ALJ’s analysis of her treating physician’s opinion was insufficient and resulted in
an inaccurate RFC; (2) the ALJ erred in failing to order a mental status exam; (3)
the ALJ erred in his credibility findings; and (4) the ALJ improperly rejected the
testimony of Plaintiff’s witness. Because the ALJ’s analysis of the treating
physician’s opinion is flawed, this matter must be remanded for further
proceedings.

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A.

Weighing of Opinion Evidence

Plaintiff argues that the ALJ failed to support his finding that Plaintiff could
perform light work, in part because he did not appropriately weigh the available
medical evidence. The Court finds that the ALJ improperly analyzed the 2011
opinion of Plaintiff’s treating orthopedic surgeon, Dr. Koutsky. Further, the ALJ
relied on Dr. Koutsky’s 2007 work release and Plaintiff’s 2007 FCE to arrive at
conclusions that are not supported by those documents. Together, these errors
warrant remand.
A treating physician’s opinion is entitled to controlling weight if it is “wellsupported” and “not inconsistent with other substantial evidence” of record. 20
C.F.R. §416.927; Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011). An ALJ who
affords less than controlling weight to the opinion of a treating physician must
furnish “good reasons” for doing so. 20 C.F.R. § 416.927(d)(2); Scott, 647 F.3d at 739.
And even if a treating physician’s opinion is not given controlling weight, the ALJ
must still determine what value the assessment does merit and explain his
determination, considering “the length, nature, and extent of the treatment
relationship, frequency of examination, the physician’s specialty, the types of tests
performed, and the consistency and supportability of the opinion. Moss v. Astrue,
555 F.3d 556, 561 (7th Cir. 2009) (citing 20 C.F.R. § 404.1527(d)(2)); Scott, 647 F.3d
at 740.
Opinions from non-physician providers, including athletic trainers certified to
provide FCE assessments, may not be used to establish the existence of a medically

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determinable impairment. S.S.R. 06-03p, see 20 C.F.R. 404.1502. Nevertheless,
opinions from such sources “may provide insight into the severity of the
impairment(s) and how it affects the individual’s ability to function.” S.S.R. 06–03p;
see Guendling v. Colvin, No. 13 C 3535, 2015 WL 6673833 at 4 (N.D. Ill. Oct. 30,
2015.)
In finding Plaintiff capable of “light work” with some postural limits, the ALJ
explicitly rejected the March 2011 opinion provided by Plaintiff’s treating
orthopedic surgeon, Dr. Koutsky. The ALJ’s stated reasons for rejecting that opinion
are flawed. Dr. Koutsky began treating Plaintiff shortly after her injury in 2005,
performed her surgery in January 2006, and followed up with her regularly through
2007. He saw Plaintiff once each in 2008 and 2009, 2 then examined her again in
March 2011 before issuing his opinion. The ALJ declined to give “great or
controlling weight” to Dr. Koutsky’s opinion in part because he did not find it to be
well supported by the record. Elaborating, the ALJ noted, “Dr. Koutsky’s records
specifically indicate that he released [Plaintiff] to work in May 2007 with
limitations consistent with the results of the functional capacity evaluation, [which]
demonstrate significantly less limitation” than Dr. Koutsky’s subsequent opinion.
(R. 34.)
It is true that the 2007 FCE and subsequent work release suggested less
limitation than that described in Dr. Koutsky’s March 2011 opinion. However, the
FCE and work release provided considerably more limitations than the ALJ implied
The ALJ overlooked the 2009 visit in his opinion, asserting that “it appears that the
claimant has not followed-up with Dr. Koutsky or anyone from his office since July 2008 at
the time that he provided his March 2011 opinion.” (R. 34.)
2

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in his decision. The ALJ described the FCE as showing that Plaintiff’s “abilities
[had] quickly increased to the level of light–medium” exertion. (R. 34.) This is only
partially accurate. Exertion levels as defined by Social Security regulations consist
of two components: lifting tolerances and sit/stand tolerances. To do light work, a
person must be able to lift up to twenty pounds occasionally and ten pounds
frequently, and must be able to stand or walk for up to six hours per day and sit for
up to six hours per day. The FCE here, which was prepared for the purposes of
resolving a claim under Worker’s Compensation, does not comport with the Social
Security Administration’s definition of “light work.” Instead, the FCE’s summary
page bases its “light–medium” exertion finding solely on Plaintiff’s lifting
tolerances, which ranged from twenty-eight to over fifty pounds at varying positions
and frequencies. (R. 475.) The FCE did not suggest that Plaintiff could stand or
walk for six hours per day. Instead, it provided “tolerance recommendations” of four
to five hours per day total of sitting in durations of up to one hour; three to four
hours a day total of standing in durations of up to half an hour; and three to four
hours per day of walking at “occasional, moderate distances.” (R. 475.) Those limits
were consistent with Mr. Rose’s observations, as recorded in the narrative portion of
his report, of Plaintiff’s difficulties sitting and standing. (R. 482.)
The ALJ nowhere acknowledged the discrepancy between Plaintiff’s sit/stand
limits and the Administration’s definition of “light work,” even as he used the 2007
work release to discredit Dr. Koutsky’s later claims. The ALJ instead endorsed the
light work finding of two agency physicians who had not reviewed the FCE or the

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bulk of Plaintiff’s treatment records. The Court is therefore unable to determine
how, in crafting his RFC, the ALJ accounted for the sit/stand/walk limits in the
2007 FCE and in Dr. Koutsky’s subsequent work release, which were considerably
more restrictive than the regulatory definition of even “light” work. The ALJ has
therefore failed to build the requisite “accurate and logical bridge from the evidence
to his conclusion.” Clifford v. Astrue, 227 F.3d at 872.
B.

Remaining Arguments

Because the above-described errors in weighing medical evidence mandate
remand, the Court need not address Plaintiff’s remaining arguments at this time.
However, on remand, the Commissioner is advised to consider Plaintiff’s testimony
in light of the recent guidance provided by SSR 16-3p and focus on Plaintiff’s
asserted symptoms. See Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016).
CONCLUSION
For the foregoing reasons, Plaintiff Carolyn J. Kern’s motion for summary
judgment is granted in part, and the Commissioner’s cross-motion for summary
judgment [Doc. No. 31] 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

April 11, 2017

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