Young v. Colvin

Filing 30

MEMORANDUM Opinion and Order. Signed by the Honorable Maria Valdez on 10/6/2016: Mailed notice (lp, )

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

RANDOLPH J. YOUNG,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 13 C 8929
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 Randolph Young’s 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, Plaintiff’s motion to reverse the Commissioner’s decision [Doc. No. 16] is
granted in part and denied in part, and the Commissioner’s cross-motion for
summary judgment [Doc. No. 27] is denied.
BACKGROUND
I.

PROCEDURAL HISTORY
On April 21, 2011, Plaintiff filed a claim for Disability Insurance Benefits,

alleging disability since October 5, 2009, due to arthritis and degenerative joint
disease in his lumbar and cervical spine. Plaintiff’s claim was denied initially and
upon reconsideration, and he then timely requested a hearing before an
Administrative Law Judge (“ALJ”), which was held on May 24, 2012. Plaintiff

appeared and testified at the hearing and was represented by counsel. Medical
expert Dr. Ashok Jilhewar and vocational expert James Breen also testified.
On July 21, 2012, the ALJ denied Plaintiff’s claim for Disability Insurance
Benefits, finding him not disabled under the Social Security Act. The ALJ
determined that, despite his back and neck impairments, Plaintiff could perform a
limited range of sedentary work, which allowed him to do his past work as a loan
officer. The Social Security Administration Appeals Council then denied Claimant’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 BACKGROUND1
A.

Background

Plaintiff was born on January 28, 1955 and was fifty-seven years old at the
time of the ALJ’s decision. Plaintiff’s insured status expired December 31, 2014, and
so he must establish he was disabled by that date in order to receive benefits.
Plaintiff has a long and fairly steady work history going back to 1972. (R. 169-170.)
He’s held a number of different jobs in his life, last working as a loan officer from
March to July in 2009. (R. 192.)
B.

Medical Evidence

Plaintiff has an extensive history of treatment of the arthritic and
degenerative problems with his back and neck. His troubles began with his neck. In
2001, he had a cervical spine fusion from C2 to C6, and has had three more surgical
1

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

2

procedures done on his neck since then. (R. 266, 288, 309.) His lumbar spine is a
problem area as well, as a number of studies have confirmed, beginning with an
MRI done on February 27, 2008, which showed degenerative changes throughout,
small disc herniation at L4-5, severe disc space narrowing at L5-S1, and disc space
narrowing at T-12-L2. (R. 273.) Another MRI on October 30, 2008, showed mild disc
space narrowing, disc dessication, and a mildly bulging disc at L1-L2; moderate disc
space narrowing and disc dessication, and concentric bulging with left side
herniation at L4-5, along with mild encroachment on the neural foramen; and disc
space narrowing, disc dessication, and concentric disc bulging at L5-S1, along with
modic type 2 endplate changes and bilateral compromise of the neural forami. (R.
282.) X-rays taken August 11, 2009, revealed decreased disc height and spurring
throughout Plaintiff’s lumbar spine, as well as facet hypertrophy at L4-5 and L5-S1,
and mild listhesis of L4 on L5. (R. 269.)
On October 6, 2009, Plaintiff saw Dr. Thomas McNally, seeking treatment–
possibly surgical – for his low back pain. (R. 273.) Physical exam was essentially
normal in terms of range of motion and motor strength. (R. 272.) At that time,
Plaintiff was taking Meloxicam, Naproxen, and Tylenol. (R. 271.) Dr. McNally noted
that Plaintiff’‘s complaints of low back pain over the previous two years were
consistent with results from previous x-rays and MRIs. (R. 273.) The doctor pointed
out the major risks and lack of guarantees associated with lumbar fusion surgery.
(R. 273.) Another MRI would be performed before any decisions would be made. (R.
274.)

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That study, done on October 15, 2009, revealed moderate degenerative
changes at L5-S1, along with a central disc bulge possibly causing stenosis, with
slight S1 nerve root displacement. There was also disc space narrowing in the lower
thoracic spine, and mild facet arthropathy at L4-S1. (R. 263-264.) When Plaintiff
went back to see Dr. McNally to discuss the results on November 12, 2009, he was
complaining of increased low back pain, and left leg and foot pain. (R. 275.) He was
moving slowly and carefully around the room, and his gait was antalgic. (R. 276.)
Dr. McNally again went over the risks of various possible surgical interventions.
(R. 277-278.)
In April 2010, after receiving two epidural steroid injections in the previous
four months, Plaintiff saw Dr. Anthony Savino for a follow-up on his back and leg
pain. (R. 293.) Plaintiff had gotten some relief with the injections. (R. 293.) Reflexes
were symmetrical and straight leg raising was negative bilaterally. (R. 293.) Dr.
Savino ordered a CT scan and myelogram of Plaintiff’s lumber spine. (R. 293.)
The studies were done shortly thereafter. On April 29, 2010, the CT scan
showed degenerative changes throughout, with mild disc space narrowing at L3-4;
mildly decreased disc height, mild to moderate disc protrusion, mild stenosis, and
moderate to severe neural foraminal narrowing at L4-5; and moderate to severe disc
space narrowing, mild osteophyte formation, and moderate to severe neural
foraminal narrowing at L5-S1. (R. 285.) The myelogram was positive for impression
on the thecal sac. (R. 286.) When Plaintiff returned to Dr. Savino on May 3, 2010,
the doctor explained that surgery would not alleviate his back pain – he would have
to live with that. Surgery could only address his left leg pain. (R.292.)
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Plaintiff began suffering from left shoulder pain in the summer of 2010. On
September 1, 2010, Plaintiff sought treatment from Dr. Joshua Alpert. (R. 290.)
Examination revealed moderate pain in the AC joint at the top of the shoulder, and
Speed’s and Yergason’s testing were positive. (R. 290.) X-rays confirmed AC joint
arthropathy. (R. 290.) Dr. Alpert diagnosed a rotator cuff tear, along with AC joint
arthritis and biceps tendonitis. (R. 290.)
Subsequent MRI of Plaintiff’s left shoulder showed rotator cuff tenopathy and
inflamed bursa. (R. 289.) When Plaintiff returned to Dr. Alpert on September 8, he
exhibited a full painless range of motion in the left shoulder, but did have pain in
the AC joint and biceps. (R. 289.) Dr. Alpert administered a Lidocaine injection and
sent Plaintiff home with instructions on home exercises. (R. 289.)
Plaintiff returned on October 20, 2010, saying his shoulder had improved, but
he still had pain and was now experiencing numbness down his arm. (R. 288.)
Examination of the shoulder was essentially normal and Dr. Alpert felt the problem
might be stemming from Plaintiff’s cervical spine. (R. 288.) Plaintiff was noted to be
experiencing financial difficulties which might adversely affect future treatment
and testing. (R. 288.)
On March 31, 2011, the state disability agency arranged for Dr. Roopa Karri
to examine Plaintiff, in connection with his application for disability benefits.
Plaintiff told Dr. Karri that he had back pain and pain radiating to his left leg and
foot, with occasional numbness in his left foot. For the previous six months, Plaintiff
had been using a cane. (R. 309.) Dr. Karri noted that Plaintiff walked with a smallstepped gait, limping on the left leg. (R. 310.) Plaintiff could not heel/toe walk,
5

squat, or walk with a tandem gait, and he could not walk fifty feet without his cane.
(R. 310.) Straight leg raising was negative. Strength was 5/5 in the upper and lower
extremities, and deep tendon reflexes were 2+ in the biceps, triceps, knees, and
ankles. Lumbar spine flexion was 70/90 degrees; cervical spine flexion was 30/80
degrees. (R. 310.) There was decreased sensation to pinprick in Plaintiff’s left foot.
(R. 310.)
On April 8, 2011, Plaintiff began seeing Dr. David Norbeck for his low back
pain. Dr. Norbeck noted that straight leg raising was positive at 80 degrees, and
that lumbar spine flexion was 80/90 degrees. (R. 321.) Motor strength and sensation
were normal. (R. 321.) On May 3, Dr. David Schneider gave Plaintiff an epidural
injection at L5. (R. 322). He was treated without charge as he had no insurance. (R.
331.) He needed another injection by October of 2011, but this time it would not be
free; he would have to pay $500. (R. 331.) Plaintiff was hesitant, but went ahead
with the procedure on October 25, 2011. (R. 333.) He followed up with Dr.
Schneider on November 14, 2011. Neurological exam was normal with the exception
of decreased sensation in the left foot. (R. 335.) Straight leg raising was positive at
30 degrees. (R. 335.) The doctor noted that any surgery would be elective as
Plaintiff had “no gross deficit.” (R. 335.) By that time, Plaintiff was taking Tylenol,
Aleve, and Norco, but the medications were not very effective. (R. 337.)
On April 13, 2011, Dr. Henry Rohs reviewed Plaintiff’s medical file for the
agency. He thought that Plaintiff could lift ten pounds frequently, and less than ten
pounds occasionally. (R. 314.) He could stand or walk for at least two hours out of
every workday but needed a cane to do so. He could sit about six hours out of every
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workday. (R. 314.) Dr. Rohs said Plaintiff could only occasionally climb ramps or
stairs, balance, stoop, kneel, crouch, or crawl; he could never climb ladders, ropes,
or scaffolds. (R. 315.) Dr. Charles Kenny then reviewed the file on July 12, 2011,
and concurred with Dr. Rohs’ opinion. (R. 325.)
C.

The Administrative Hearing
1.

Medical Expert’s Testimony

The administrative hearing began with Dr. Ashok Jilhewar testifying as a
medical expert. He reviewed the medical evidence and summarized it at length at
the hearing. (R. 28-36.) The ALJ asked Dr. Jilhewar whether Plaintiff’s
impairments, individually or in combination, met or equaled an impairment listed
as presumptively disabling in the Commissioner’s regulations. Dr. Jilhewar said
that the Plaintiff’s condition did not meet listing 1.04(A) because there was an
“absence of neurological deficit in dermatomal distribution.” (R. 36.) The doctor
went on to testify that Plaintiff would be limited to sedentary work, using an
assistive device. Dr. Jilhewar thought Plaintiff could lift ten pounds occasionally
and frequently, and sit for two hours at one time and a total of eight hours in an
eight-hour workday. (R. 37.) Dr. Jilhewar said he “would assert there was a medical
necessity of sit and stand option at will,” but he could not “state that because of the
extensive treatment records not documenting the involvement either of the left hip
or of the left sacroiliar joint, except for a one-time examination by the consultative
examiner . . . .” (R. 37.) According to the doctor, there were no medical records to
suggest Plaintiff needed a sit-stand option. (R. 37.) Dr. Jilhewar did allow that
Plaintiff would need the use of a cane to walk more than fifty feet, and said Plaintiff
7

could stand or walk thirty minutes at a time with a cane and a total of two hours in
an eight-hour workday. (R. 37.) Dr. Jilhewar added that Plaintiff could use ramps
frequently, stairs occasionally, and could balance and stoop occasionally. He could
never climb ladders, ropes, or scaffolds, and never kneel, crouch, or crawl. (R. 38.)
Dr. Jilhewar did not think there was medical evidence to support any reaching
limitations concerning Plaintiff’s left shoulder. (R. 38, 40.) Due to his need for a
cane, Plaintiff could not work at unprotected heights or around dangerous
machinery. (R. 38.)
When questioned by Plaintiff’s attorney, Dr. Jilhewar testified that he did not
see any evidence of persistent muscle spasm or specific neurological abnormality.
(R. 42.) Plaintiff’s complaints of pain, however, were consistent with the radiological
findings. (R. 42.) There was displacement of the S1 nerve and neural foraminal
stenosis at multiple levels, both of which could cause pain. (R. 42.)
2.

Plaintiff’s Testimony

Plaintiff testified that he was right-handed, had a high-school education, and
lived in a single-family home with his wife. (R. 43-44.) He last worked in 2009 for a
bank. (R. 44.) It was a desk job in the loan processing department. (R. 45.) Plaintiff
said that he was fired from that job because of “something maybe [he] said.” (R. 46.)
He lost his previous job at another bank when the bank changed hands and there
were layoffs. (R. 46.) He wasn’t able to lift anything at these positions due to his
back; if he needed to, he would ask for help. (R. 48.) While he was seated most of the
day at these jobs, he was able to get up and move around every hour or so. (R. 49,
61.) In addition, his impairments and his medications adversely affected his sleep,
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which made it difficult for him to concentrate at work and his performance suffered.
(R. 60.) Before that, Plaintiff was doing work that required physical labor, for
example, as a technician at a servicing center for recreational vehicles. (R. 50.)
Plaintiff told the ALJ that he was still trying to find work. (R. 51.) Over the
previous three years, he had two interviews for administrative positions. (R. 51.)
Around the house, Plaintiff tried to do what he could: cooking, washing
dishes, and occasionally doing laundry. (R. 52.) He and his wife owned two dogs but
he did not walk them. (R. 52.) He could only walk a couple of hundred yards
comfortably. (R. 52.) He used a cane most of the time, even around the house. (R.
53.) He had scaled back his hobbies; he did not bowl anymore and rarely fished. (R.
53.) In a typical day, he got up at 7:30 or 8:00 a.m., had some breakfast, checked
emails, checked on job openings, and spent a good deal of time watching TV. (R. 54.)
He napped in the afternoons. (R. 54-55.) He could not sit or stand for very long, so
he spent a lot of time lying down. (R. 62.)
Plaintiff told the ALJ he could walk for about ten minutes, with a cane,
before he felt pain. (R. 55.) If he sat for too long, he would have pain. He had pain
in his left leg and foot during the hearing. (R. 55.) He needed to change positions
from standing to sitting and did so during the hearing. (R. 55, 59, 61.) Plaintiff
testified that he took Vicodin or Norco for extreme pain, and Tylenol or ibuprofen
the rest of the time. (R. 57, 58.) He did not like the side effects from the Vicodin or
Norco, so he tried not to take it more than twice a week. (R. 57.) Plaintiff explained
that he hadn’t had more recent surgery due to lack of insurance and because he
“wasn’t up for . . . pins and screws” being put in his back. (R. 58.)
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3.

Vocational Expert’s Testimony

Next, the Vocational Expert (“VE”) testified, characterizing Plaintiff’s past
work as ranging from semi-skilled and sedentary (loan officer) to semi-skilled and
heavy (RV service technician). (R. 67.) The ALJ asked the VE whether a
hypothetical person with the same age, education, and work experience as Plaintiff,
and a residual functional capacity (“RFC”) to lift up to ten pounds occasionally and
frequently, stand or walk for up to two hours a day, and sit for up to eight hours a
day, could perform any of Plaintiff’s past work. The ALJ added that this
hypothetical person could frequently climb ramps, occasionally climb stairs, balance
and stoop, but could never climb ladders, ropes, or scaffolds, could never crouch,
kneel, or crawl, and could not work at unprotected heights or around dangerous
machinery. (R. 67-68.) The VE testified that such a person could perform Plaintiff’s
past work as a loan officer or administrative assistant. (R. 68.) The ALJ then added
the requirement that the individual be allowed to sit and stand alternatively at will,
provided this did not take them off task more than ten percent of the time. (R. 69.)
The VE responded that the person could still do the loan officer and administrative
assistant jobs. (R. 68.) When the ALJ added the restriction that the individual could
only occasionally reach overhead, the VE’s answer did not change. (R. 69.) But,
when the ALJ proposed that, due to pain, the person could only do simple, routine,
repetitive tasks, the VE stated that the individual could not perform Plaintiff’s past
work. (R. 69.) The VE said that his testimony was consistent with the Dictionary of
Occupational Titles, except for the sit-stand option, which was not covered in that
publication. (R. 70.)
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D.

ALJ’s Decision

The ALJ followed the familiar five-step process for determining disability.
See 20 C.F.R. § 404.1520(a)(4). At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since his alleged onset date of October 5,
2009. At step two, the ALJ concluded that Plaintiff had severe impairments of
degenerative disc disease of the lumbar spine, degenerative disc disease of the
cervical spine, status post fusion surgery, and degenerative joint disease of the left
shoulder. (R. 13.) But, at step three, the ALJ determined that none of these
impairments, alone or in combination, met or medically equaled an impairment list
at 20 C.F.R. Pt. 404, Subpt. P, App. 1. (R. 14.) The ALJ then determined that
Plaintiff retained the RFC to perform sedentary work, lifting up to ten pounds
occasionally and frequently, and standing or walking for approximately two hours
in an eight-hour workday and sitting for up to eight hours, with the option to
alternate between sitting and standing at will, as long as it did not take Plaintiff off
task more than ten percent of the time. The ALJ added that Plaintiff could climb
ramps frequently, climb stairs occasionally, and balance, stoop, and reach overhead
occasionally. Plaintiff could never climb ladders, ropes, or scaffolds, and never
crouch, kneel, or crawl. He could not work at unprotected heights, and he had to
avoid concentrated exposure to dangerous moving machinery. (R. 14.) At step four,
the ALJ found that, given this RFC and the VE’s testimony, the Plaintiff could
perform his past work as a loan officer or as an administrative assistant. (R. 17.)
Accordingly, the ALJ concluded that Plaintiff was not disabled and not entitled to
disability insurance benefits under the Social Security Act. (R. 18.)
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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. §
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,
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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. Scrogham v. Colvin, 765 F.3d 685, 695 (7th Cir.
2014); Farrell v. Astrue, 692 F.3d 767, 770 (7th Cir. 2012). 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); Stepp v. Colvin, 795
F.3d 711, 718 (7th Cir. 2015). 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, but neither will the Court act as a
“rubber stamp” for the Commissioner. Minnick v. Colvin, 775 F.3d 929, 935 (7th
Cir. 2015).
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 between the evidence . . . and his ultimate conclusion . . .
.” O'Connor-Spinner v. Colvin, – F.3d –, –, 2016 WL 4197915, at *7 (7th Ci r. Aug. 9,
2016). The ALJ must at least minimally articulate the “analysis of the evidence
with enough detail and clarity to permit meaningful appellate review.” Briscoe ex
rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005); 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

13

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, 765 F.3d at 698 (“This
‘sound-bite’ approach to record evaluation is an impermissible methodology for
evaluating the evidence.”).
III.

ANALYSIS
Plaintiff challenges the ALJ’s decision denying him benefits on three

grounds: (1) that the ALJ’s determination that Plaintiff’s impairments did not meet
a listed impairment was perfunctory; (2) that the ALJ failed to provide valid
reasons for rejecting Plaintiff’s assertions as to his limitations; and (3) that the
ALJ’s RFC finding was flawed for various reasons.
A.

The ALJ’s Step-Three Determination

At step three, the ALJ determined that Plaintiff did not have an impairment
that, either alone or in combination, met or equaled a listed impairment. Under a
theory of what the Seventh Circuit calls “presumptive liability,” a plaintiff is
entitled to benefits if they have a condition that meets or equals an impairment
found in the Listing of Impairments. Kastner v. Astrue, 697 F.3d 642, 646–47 (7th
Cir. 2012). Each listing has a set of criteria which must be met for an impairment to
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be deemed conclusively disabling. Id. The listing at issue here, §1.04, pertains to
disorders of the spine. Like many of the listings, §1.04 is a fairly complex set of
symptoms and clinical requirements, which in turn are dependent on an extensive
set of definitions and explanations:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease,
facet arthritis, vertebral fracture), resulting in compromise of a nerve
root (including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine, motor
loss (atrophy with associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss and, if there is involvement of
the lower back, positive straight-leg raising test (sitting and supine);
*

*

*

or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established
by findings on appropriate medically acceptable imaging, manifested
by chronic nonradicular pain and weakness, and resulting in inability
to ambulate effectively, as defined in 1.00B2b.
20 C.F.R. § Pt. 404, Subpt. P, App. 1. Plaintiff contends that the ALJ failed to
consider all the evidence when he found Plaintiff’s condition did not meet §1.04(A),
and that the ALJ did not even consider whether Plaintiff’s condition met §1.04(C).
When determining whether a claimant’s impairments meet or equal a listing,
“‘an ALJ must discuss the listing by name and offer more than a perfunctory
analysis of the listing.’” Kastner, 697 F.3d at 647 (quoting Barnett v. Barnhart, 381
F.3d 664, 668 (7th Cir.2004)); Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir.
2006). The ALJ also has to consider medical expert opinion. Barnett, 381 F.3d at
668. Here, the ALJ mentioned the listing and stated he considered the opinions of

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Dr. Jilhewar and the state agency reviewing physicians, but then conclusorily
stated that Plaintiff’s back impairment did not meet the requirements of
subsections A, B, or C of §1.04. (R. 14.) He offered no analysis, perfunctory or
otherwise. An ALJ is required to provide a logical bridge from the evidence to his
conclusion so that the Court can trace the path of his reasoning and perform a
meaningful review of his decision. See Kastner, 697 F.3d at 646. The ALJ’s stepthree finding does not allow for that; there is no explanation of how the ALJ got
from the medical record to his conclusion.
As was already suggested, the listing at issue here, like most, can be said to
be fairly byzantine. As such, when the ALJ says Plaintiff does not meet it, without
more, there is no way to tell why that is. There is no way to tell which requirement,
or requirements, the ALJ thought Plaintiff fell short of. Section 1.04(A) begins with
the requirement of “nerve root compression characterized by neuroanatomic
distribution of pain.” There would seem to be evidence of neuroatomic distribution
of pain caused by nerve root compression. Plaintiff has pain not only in his lower
back, but radiating down his left leg and into his foot. Objective studies, like MRIs
and myelograms, have shown evidence of a herniated disc (R.273), bulging discs,
encroachment of the neural foramen, compromise of the neural forami (R. 269),
nerve root displacement (R. 263), disc bulge with possible stenosis (R. 264), disc
protrusion, stenosis, neural foraminal narrowing (R. 286), and impression of the
thecal sac. (R. 286.) The next requirement is limitation of motion of the spine, and
there would seem to be evidence of that as well. (R. 310, 321.) There also appears to
be evidence of motor loss: examination revealed that Plaintiff could not heel/toe
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walk or squat. (R. 310); see Ribaudo v. Barnhart, 458 F.3d 580, 584 (7th Cir.
2006)(“Inability to squat or to walk on the toes or heels can be evidence of
significant motor loss.” (citing 20 C.F.R. Part 404, Subpart P, App. 1, 1.00(E)(1)).
Plaintiff also had sensory loss in his left foot, (R. 310, 335), and positive straight leg
raising, (R. 335). In other words, maybe the Plaintiff’s condition does not meet the
listing but, looking at the record, that is far from self-evident. The ALJ had to do
more than merely say it did not.
As for §1.04(C), Plaintiff incorrectly asserts that the ALJ did not even
consider that listing. But while the ALJ at least mentioned it, he again did not
discuss it or provide anything more than a conclusory assertion that Plaintiff did
not have lumbar spinal stenosis resulting in pseudoclaudication. (R. 14.) As with
the ALJ’s treatment of §1.04(A), there’s no way to assess the ALJ’s reasoning here.
As just discussed, there is objective evidence of lumbar spinal stenosis.
Pseudoclaudication is lower extremity pain caused by spinal, neurological, or
orthopedic disorders, http://medical-dictionary. thefreedictionary.com/
pseudoclaudication, so there is evidence of that as well. So the Court is left to guess
as to why the ALJ found that Plaintiff does not have lumbar spinal stenosis
resulting in pseudoclaudication. The logical bridge requirement demands an
answer, Thomas v. Colvin, 826 F.3d 953, 961 (7th Cir. 2016), but the ALJ did not
provide one.
The Commissioner argues that all the ALJ had to do in this instance was cite
the testimony of the medical expert, Dr. Jilhewar, and rely on it. But that’s clearly
not the case. If it were, the Seventh Circuit would not require consultation of a
17

medical expert and analysis from the ALJ. Barnett, 381 F.3d at 668. An ALJ can’t
simply defer to the medical expert’s conclusion and move on, as the ALJ did here.
Moreover, Dr. Jilhewar’s testimony is no more illuminating than the ALJ’s
exceedingly brief and conclusory discussion. All the doctor says is that Plaintiff
does not meet §1.04(A) “[b]ecause of the absence of neurological deficit in
dermatomal distribution.” (R. 14, 36.) That language is not found in the listing, so
there ought to have been some amplification of that conclusion. Dr. Jilhewar seems
to have taken this from the consultative examiner’s report, which he says
characterizes mild weakness in the left lower extremity as not being dermatomal in
distribution. (R. 34.) But the listing speaks of distribution of pain, not weakness,
and in any event, the consultative examiner did not say anything about dermatomal
distribution of weakness. (R. 310.) Neither the ALJ’s opinion nor Dr. Jilhewar’s
testimony explain the basis of Dr. Jilhewar’s finding, or indicate how it applies to
§1.04(A).2
The Commissioner has something to say about §1.04(C) as well. The
Commissioner submits that Plaintiff has not demonstrated inability to ambulate
effectively as defined by §1.00(B)(2)(b), which §1.04(C) also requires, because
Dermatomal distribution refers to the fact that “[a] dermatome is an area of skin in which
the sensory neurons all come from a single nerve. . . .” Hanson v. Colvin, 760 F.3d 759,
760–61 (7th Cir. 2014). The dermatomes in the lower extremities are associated with the
lumbar spinal roots. http://medical-dictionary.thefreedictionary.com/dermatomal
+distribution. The spinal roots where the Plaintiff’s MRIs and myelogram indicate there are
issues are the ones that affect the leg and foot, which is where the plaintiff experiences pain
and decreased sensation. As such, the question remains why, given the evidence, Dr.
Jilhewar found that Plaintiff did not have dermatomal distribution of neurological deficit.
Given the record, some explanation beyond a bare conclusion was necessary, but, as
indicated above, the question is really academic because §1.04(A) does not talk about
“neurological deficit in dermatomal distribution.”
2

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Plaintiff uses a single cane. As noted earlier, however, the listing at issue here is
nothing if not convoluted. The “inability to walk without the use of a walker, two
crutches, or two canes” is but one example of ineffective ambulation from what
§1.00(B)(2)(b) makes clear is a nonexhaustive list. Moss v. Astrue, 555 F.3d 556, 562
(7th Cir. 2009). More importantly, this reasoning is found nowhere in the ALJ’s
decision. The Court’s review is limited to rationale the ALJ supplies; reasoning that
the Commissioner’s lawyers come up with later on does not enter into the calculus.
Hill v. Colvin, 807 F.3d 862, 869 (7th Cir. 2015); Kastner, 697 F.3d at 648.
The ALJ failed to build a logical bridge from the evidence to his step-three
conclusion. More is required to allow for a meaningful review and that is especially
the case here as the listing is rather complicated. This does not necessarily mean
that the ALJ’s conclusion was wrong. It may well be that Plaintiff’s condition does
not meet the listings, but the Court cannot simply take the ALJ’s word on it. See
Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996). Accordingly, this matter must
be remanded to the Commissioner for further proceedings.
B.

The ALJ’s Assessment of Plaintiff’s Allegations as to his Limitations
As the ALJ’s truncated step-three discussion necessitates a remand, it is

unnecessary to address the remaining arguments Plaintiff raises. See Yurt v.
Colvin, 758 F.3d 850, 860 (7th Cir. 2014). In his attack on the ALJ’s RFC
determination, Plaintiff takes a blunderbuss approach, failing to concentrate on any
one argument point and develop to any extent. Those arguments will not be
considered. See United States v. Stokes, 726 F.3d 880, 887 (7th Cir. 2013) (criticizing
the scattershot approach to brief-writing); Dynegy Mktg. & Trade v. Multiut Corp.,
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648 F.3d 506, 513 (7th Cir. 2011) (“[T]he ‘kitchen sink’ approach to briefing cause[s]
distraction and confusion, it also consumes space that should be devoted to
developing the arguments with some promise.”); Fifth Third Mortg. Co. v. Chi. Title
Ins. Co., 692 F.3d 507, 509 (6th Cir.2012) (“When a party comes to us with nine
grounds for reversing the [lower court’s decision], that usually means there are
none.”).3 But Plaintiff’s arguments regarding the ALJ’s assessment of his
allegations regarding his limitations are more substantial, and it is worthwhile to
address them briefly.
The Social Security Administration recently updated its ruling on how ALJ’s
should assess a claimant’s allegations, replacing Social Security Ruling 96-7p with
Social Security Ruling 16-3p. Under the new ruling, ALJs will no longer assess the
“credibility” of a claimant’s statements, but would instead focus on determining the
“intensity and persistence of [the applicant's] symptoms.” SSR 16-3p, 2016 WL
1119029, *2 (Mar. 16, 2016). “The change in wording is meant to clarify that
administrative law judges aren’t in the business of impeaching claimants’ character;
obviously administrative law judges will continue to assess the credibility of pain
assertions by applicants, especially as such assertions often cannot be either
credited or rejected on the basis of medical evidence.” Cole v. Colvin, – F.3d –, –,
Indeed, it would appear that little thought went into some of these scattershot arguments.
For example, Plaintiff complains that the ALJ ignored a report indicating there was a
needle stuck in his back. (Pl.’s Mem. at 10.) But that report, done for Dr. Onwuta, (R. 279),
coincides with an epidural steroid injection Plaintiff reported receiving from Dr. Onwuta.
(R. 195). In all probability, it is nothing more than the injection guidance report for that
procedure. See, e.g., http://www.spine-health.com/treatment/injections/
epidural-injection-procedure; Cf. (R. 286.) It is highly unlikely, on the other hand, that
Plaintiff was walking around with a large needle sticking out of his back and the battery of
doctors treating him for back pain did not notice it, despite a number of examinations and
MRIs, until December of 2009.
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2016 WL 3997246, at *1 (7th Cir. 2016) (emphasis in original). Nothing else has
changed, however; an ALJ must still provide good reasons for rejecting a claimant’s
assertions as to their pain and limitations. SSR 16-3p, 2016 WL 1119029, at *7;
Engstrand v. Colvin, 788 F.3d 655, 660 (7th Cir. 2015).4
Here, the ALJ offered four reasons for rejecting Plaintiff’s allegations as to
the degree of limitation he suffered. The ALJ stated that “[t]he objective medical
evidence and the claimant’s course of treatment do not support the disabling level of
limitation alleged . . . .” (R. 15.) The ALJ also pointed out that Plaintiff was looking
for work and that he received unemployment benefits in 2011, and that his daily
activities suggested the ability to perform sedentary work. (R. 16, 17.)
Basing a rejection of a plaintiff’s complaints of pain on the objective medical
evidence is a risky proposition in the Seventh Circuit. Time and again, the Court of
Appeals has chastised ALJs for relying too heavily on the objective medical evidence
in pain cases. Hall v. Colvin, 778 F.3d 688, 691 (7th Cir. 2015); Pierce v. Colvin, 739
F.3d 1046, 1049–50 (7th Cir.2014); Carradine v. Barnhart, 360 F.3d 751, 753 (7th
Cir.2004). To his credit, the ALJ did go beyond the objective medical evidence but,
nevertheless, it is unclear what more in the way of medical evidence the ALJ
wanted to confirm Plaintiff’s pain. As already discussed, there are numerous
studies demonstrating significant issues with the Plaintiff’s lower back.

As SSR 16-3p is simply a clarification the Administration's interpretation of the existing
law, rather than a change to it, the same regulatory factors for evaluating the severity of
Plaintiff's symptoms will apply. See Qualls v. Colvin, No. 14 CV 2526, 2016 WL 1392320, at
*6 (N.D. Ill. Apr. 8, 2016). The result does not change here, however, as the ALJ did not
assess Plaintiff’s character, just his assertions.
4

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It may be that the ALJ was more focused on the medical treatment than he
was on the objective medical evidence. The ALJ felt that Plaintiff’s course of
treatment – medication and epidural injections – undermined his allegations of
disabling pain. (R. 16.) But multiple epidural injections and prescriptions for
narcotic pain relievers tend to support claims of pain rather than undermine them.
Stark v. Colvin, 813 F.3d 684, 687 (7th Cir. 2016); Stage v. Colvin, 812 F.3d 1121,
1125 (7th Cir. 2016). The record does not paint Plaintiff as one who does not need
treatment for pain. Cf. Sienkiewicz v. Barnhart, 409 F.3d 798, 804 (7th Cir. 2005)
(holding that plaintiff’s failure to regularly seek treatment for pain undermined her
claims). He returns to doctors again and again. Moreover, he has had four spinal
surgeries. Yet, the ALJ was clearly troubled by the fact that Plaintiff chose to forego
a fifth spinal surgery. (R. 16, 63-64.) Plaintiff said he just couldn’t go through
another surgery, especially one that left more hardware in his spine. That’s
certainly understandable as he had already had a cervical spinal fusion and three
other surgeries at that point. The fact that the ALJ used this as a reason for
rejecting Plaintiff’s allegations regarding his pain is not persuasive.
The ALJ also referenced Plaintiff’s daily activities as reason to disbelieve his
assertions as to his limitations. He said they “suggest the ability to perform
sedentary work consistent with the limitations in his residual functional capacity.”
(R. 17.) The Court disagrees. An ALJ can look at a plaintiff’s daily activities and
compare them to their alleged limitations to see if a plaintiff might be exaggerating,
but an ALJ can’t equate them with work. Stark, 813 F.3d at 688; Spiva v. Astrue,
628 F.3d 346, 352 (7th Cir. 2010). Doing a few household chores and, as the ALJ
22

conceded, being able to perform tasks for only short periods of time, like mowing the
lawn on a riding mower, does not equate to the ability to hold down a full-time,
forty-hour per week job. Plaintiff did not say he was doing housework eight hours a
day; he said he spent most of each day lying down and watching TV.
Finally, the ALJ noted that Plaintiff was looking for work and had received
unemployment benefits after his alleged onset date. (R.16.) The former really
should not be held against Plaintiff. “A disabled person may want to work, may
seek work, and in some cases may land work.” Voigt v. Colvin, 781 F.3d 871, 876
(7th Cir. 2015). “There is no inherent inconsistency in being both employed and
disabled. . . . And here, [Plaintiff] was not actually working but merely said that she
was looking for work.” Ghiselli v. Colvin, – F.3d –, –, 2016 WL 4939535, at *5 (7th
Cir. Sept. 16, 2016). The latter is a bit more troubling. While the Seventh Circuit
has allowed that applying for and receiving unemployment benefits is certainly one
factor an ALJ can consider when assessing a plaintiff’s allegations, Schmidt v.
Barnhart, 395 F.3d 737, 746 (7th Cir. 2005), it has also said that “attributing a lack
of credibility to such action is a step that must be taken with significant care and
circumspection. All of the surrounding facts must be carefully considered.”
Scrogham, 765 F.3d at 699. On remand, the ALJ should be careful not to veer into
an assessment of the Plaintiff’s character in this regard. See SSR 16-3p, 2016 WL
1020935, *10 (“In evaluating an individual's symptoms, our adjudicators will not
assess an individual’s overall character or truthfulness in the manner typically used
during an adversarial court litigation. The focus of the evaluation of an individual’s
symptoms should not be to determine whether he or she is a truthful person.”).
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CONCLUSION
For the foregoing reasons, Plaintiff’s motion to reverse the Commissioner’s
final decision [Doc. No. 16] is granted in part and denied in part, and the
Commissioner’s cross-motion for summary judgment [Doc. No. 27] 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: ___October 6, 2015___

___________________________
HON. MARIA VALDEZ
United States Magistrate Judge

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