Rios v. Colvin

Filing 24

MEMORANDUM Opinion and Order. Signed by the Honorable Maria Valdez on 5/24/2016: Mailed notice (lp, )

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

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No. 14 C 2433
Magistrate Judge
Maria Valdez

MEMORANDUM OPINION AND ORDER
Claimant Ignacio Rios III (“Claimant”) seeks review of the final decision of
Respondent Carolyn W. Colvin, Acting Commissioner of Social Security (“the
Commissioner”), denying Claimant’s application for Supplemental Security Income
Benefits (“SSI”) under Title XVI of the Social Security Act (“the Act”). Pursuant to
28 U.S.C. § 636(c) and Local Rule 73.1, the parties have consented to the
jurisdiction of a United States Magistrate Judge for all proceedings, including entry
of final judgment. [Doc. No. 8.] Claimant submitted a memorandum, which this
Court will construe as a motion for summary judgment. [Doc. No. 15.] Defendant
has submitted a cross-motion for summary judgment. [Doc. No. 19.] For the reasons
stated below, Defendant’s motion for summary judgment is denied and Claimant’s
motion for summary judgement is granted.

Carolyn W. Colvin is substituted for her predecessor, Michael J. Astrue, pursuant
to Federal Rule of Civil Procedure 25(d).
1

I. PROCEDURAL HISTORY
On February 14, 2011, Claimant filed an application for SSI, alleging a
disability onset date of January 24, 2011. (R. 140-49.) The claim was denied initially
on June 30, 2011 (R. 90.), and upon reconsideration on October 5, 2011. (R. 71.) On
November 17, 2011, Claimant requested a hearing before an Administrative Law
Judge (“ALJ”), which was held on September 14, 2012. (R. 27-87.) At that hearing,
Claimant, who was represented by counsel, appeared and testified. Id. A vocational
expert (“the VE”) appeared by telephone and testified. Id.
On November 30, 2012, the ALJ issued a written decision. (R. 9-22.) In the
decision, the ALJ went through the five-step sequential evaluation process
applicable to Claimant’s application, 20 C.F.R. § 416.920(a)(4), and found Claimant
not disabled under the Act. (R. 22.) At step one, the ALJ found that Claimant had
not engaged in substantial gainful activity (“SGA”) since December 28, 2010, the
protective application date. (R. 14.) At step two, the ALJ found that Claimant had
the severe impairments of lumbar degenerative disease, multiple sclerosis 2 with

2

Multiple sclerosis is:

a disease in which there are foci of demyelination throughout the white matter of
the central nervous system, sometimes extending into the gray matter; symptoms
usually include weakness, incoordination, paresthesia, speech disturbances, and
visual complaints. The course of the disease is usually prolonged, so that the term
multiple also refers to remissions and relapses that occur over a period of many
years.
DORLAND’S MEDICAL DICTIONARY (32nd ed. 2012) [hereinafter DORLAND’S], available at
dorlands.com.

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myelopathy 3 and obesity. Id. At step three, the ALJ found that Claimant did not
have an impairment or combination of impairments that met or medically equaled
the severity of one of the listed impairments in Appendix 1 to 20 C.F.R. Part 404,
Subpart P. See 20 C.F.R. § 416.920(a)(4)(iii). (R. 16.)
The ALJ then found that Claimant had the residual functional capacity
(“RFC”) to perform sedentary work. (R. 16.) The ALJ also found that Claimant’s
RFC was further limited to no more than frequent fingering bilaterally, engaging in
only occasional balancing, and that Claimant should avoid ladders, ropes, and
scaffolds. (R. 16-17.) At step four, the ALJ found that Claimant was unable to
perform any of his past relevant work. (R. 20.) At step five, however, the ALJ found
that there were jobs that existed in significant numbers in the national economy
that Claimant could perform. (R. 21.) Specifically, the ALJ found that Claimant
could work as a production clerk, call out operator, charge account clerk, or
telephone quotation clerk. Id. Because of this determination, the ALJ found that
Claimant was not disabled under the Act. (R. 22.)
II. FACTUAL BACKGROUND
A.

Medical Evidence

Claimant had been seeing neurologist Dr. Bruce A. Cohen, M.D. since
February of 2011, for his acute myelitis and paresthesia in his right upper
extremity. (R. 272-76.) Claimant reported that, about six weeks prior, he had

Myelopathy is “any of various functional disturbances or pathological changes in
the spinal cord, often referring to nonspecific lesions in contrast to the inflammatory lesions
of myelitis.” DORLAND’S.
3

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“developed parasthesias 4 in his right upper extremity, initially in the hand, followed
by symptoms ascending up the arm.” (R. 274.) A few weeks later he had been
bowling and “found that he could not lift the ball or feel it. The next morning, he
noticed sharp, painful paresthesias extending to his right leg.” Id. Claimant
reported to the emergency room and was admitted, where a lesion on his spinal cord
was revealed. Id. He was given a course of steroid therapy for five days and then
discharged. Id.
In his initial assessment, Dr. Cohen indicated that a review of Claimant’s
January 24th and 25th brain MRI revealed minimal abnormalities with a punctate
focus in the right juxtacortical posterior frontal parietal region and a questionable
focus adjacent to the right trigone. (R. 276.) The images of the cord revealed three
lesions in the cervical cord located at C2-C3 anteriorly, C3-C4 posteriorly, and C5
posteriorly. Id. The images of the thoracic spinal cord revealed four additional
legions involving the dorsal aspect of the cord on the left and the right, the central
aspect of the cord and a right lateral column lesion. Id. Dr. Cohen’s impression was
that Claimant had a history of neurologic events which were suggestive of multiple
sclerosis relapses, and that his spinal fluid revealed evidence of inflammatory
changes consistent with his acute myelitis. (R. 276.) He noted that claimant was
walking with crutches, although he was able to walk without them. (R. 275-76.) Dr.
Cohen also noted deficits in sensation and that Claimant’s in motor power in his
right hand and right lower extremity. (R. 275.) Dr. Cohen prescribed carbamazepine
Paresthesia is “an abnormal touch sensation, such as burning, prickling, or
formication, often in the absence of an external stimulus.” DORLAND’S.
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for neurologic pain, but asked Claimant to follow up with a nurse practitioner in a
month to consider a course of therapy. (R. 276.)
On March 9, 2011, Claimant had a follow-up appointment with nurse
practitioner Melanie Dumlao. (R. 281.) Dumlao reported that Claimant had
returned early due to worsening symptoms. (R. 285.) He reported worsening of
burning pain in his right side, particularly his hand, as well as weakness in his
hand, and that he was dropping objects frequently. Id. The carbamazepine 5
prescribed earlier was not helping. Id. Dumlao noted decreased coordination in
Claimant’s right upper and lower extremity. (R. 287.) Plaintiff’s carbamazepine was
discontinued, and pregabelin6 was added instead for neuralgia. (R. 288.) On March
16, Claimant returned to see Dr. Cohen, who recorded decreased sensation in
Claimant’s right upper and lower extremities, as well as weakness in his right
hand. (R. 291.) Dr. Cohen noted that Claimant’s pregabelin also had not been
effective, and the dosage was increased. Id. Claimant returned on April 19 to
discuss further treatment options with nurse practitioner Dumlao. (R. 334.)
Although he had noticed some improvement since his prior visit, he continued to
have burning in his right upper extremity and hand, with right knee and foot
weakness and sensory problems in his right foot. Id. Dumlao again recorded
decreased sensation in Claimant’s right upper extremity. (R.335.) Dumlao
prescribed Copaxone 7 and increased claimant’s pregabelin prescription. (R. 335.)
Dumlao referred to this medication by a brand name, Tegretol. (R. 285, 290.)
Dumlao referred to this medication by a brand name, Lyrica. (R. 288, 290.)
7 Copaxone is a “trademark for a preparation of glatiramer acetate,” which is “used
to reduce relapses in multiple sclerosis.” DORLAND’S.
5
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Dumlao emphasized to Claimant that “the goal of therapy is not to improve current
deficits but to prevent/decrease [the] frequency of future relapses and slow
progression of the disease.” (R. 334.)
On May 3, 2011, Claimant was examined by state agency consultant
physician, Dr. Anand Lal, M.D. (R. 294-301.) Claimant complained of pain and
burning sensation in his right hand, right chest, and lower extremities – the right
side more than the left, and also reported issues with his vision. (R. 294.) Dr. Lal
indicated that, at the time, Claimant had no neurological deficits and was alert and
oriented, but had an antalgic gate that required the use of a cane to help ambulate.
(R. 297, 299.) Dr. Lal’s impression was that Claimant suffered from demyelinating
disease affecting the cervical and thoracic spine as evidenced by the MRI performed
in January of 2011, generalized weakness on his right side, and pins, needles,
paresthesia, 8 and tingling feeling in both lower extremities, right chest, abdominal
wall and right arm probably secondary to demyelinating disease. Id. On May 13,
2011, an Illinois Request for Medical Advice (“IRMA”) was completed by state
agency consultant physician, Dr. Lenore Gonzalez, M.D. (R. 302-04.) Dr. Gonzalez
indicated that as of February 24, 2011, Claimant met Listing 11.09A, see 20 C.F.R.
Part 404, Subpart P, Appendix 1 § 11.09, for multiple sclerosis. (R. 302.)
On June 10, 2011, however, non-examining state agency consultant
physician, Dr. Linda B. Caldwell, M.D., completed a Physical Residual Functional
Capacity Assessment. (R. 309-17.) Dr. Caldwell reviewed the medical evidence from
Paresthesia is “an abnormal touch sensation, such as burning, prickling, or
formication, often in the absence of an external stimulus.” DORLAND’S.
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January 24, 2011 through May 3, 2011 and found that it of record failed to support
that Claimant met Listing 11.09A because there was no convincing evidence that
the intensity, persistence, and limiting effects of Claimant’s symptoms affected his
ability to do basic work activities as severely as reported. (R. 317.) Specifically, Dr.
Caldwell mentioned that there was no documented evidence for the limitations
Claimant alleged with regard to using his hands. Id. Nor did she find documented
evidence that Claimant was limited in sitting, talking, or that he was only able to
walk twenty to thirty feet before needing rest. Id. Instead, Dr. Caldwell indicated
that Claimant could occasionally lift or carry twenty pounds, frequently lift or carry
ten pounds, stand or walk at least two hours in an eight hour workday, sit for a
total of six hours in an eight hour workday, and had an unlimited ability to push or
pull. (R. 310.) Dr. Caldwell also indicated that Claimant was limited to occasional
balancing, frequently stooping, kneeling, crouching, crawling, climbing ramps and
stairs, could never climb ladders, ropes, or scaffolds, and was limited to only
frequent fine manipulation with his right hand. (R. 311-12.) Subsequently, on June
23, 2011, Dr. Gonzalez completed another RFC assessment and adopted the
findings of Dr. Caldwell. (R. 319-26.) An additional review of the medical evidence
was completed by Dr. Charles Wabner, M.D. on September 30, 2011. (R. 344-46.)
Based on the June 23, 2011 RFC Assessment, Dr. Wabner revised Dr. Gonzalez’s
prior decision and found that Claimant failed to meet listing 11.09A. (R. 346.)
On July 6, 2011, Claimant was examined at a follow-up visit with Dr. Cohen.
(R. 339-42.) The assessment revealed multiple sclerosis, right hemisensory loss,

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right hand weakness, neuralgia, and cervical myelopathy. (R. 342.) From May 2011
through May 2012, Claimant was examined at Advocate Illinois Masonic Family
Practice. (R. 366-72.) Claimant continued to complain of knee pain, body aches, and
multiple sclerosis pain. Id. On January 24, 2012, he also had decreased flexion in
his spine. (R. 371.) In May of 2012, Claimant also had a herniated disk at the L4-L5
level and depression. (R. 366.) In June of 2012, Claimant was examined at Advocate
Medical Group (“AMG”). He continued to experience back pain, multiple sclerosis
symptoms, and depression. (R. 364.)
On July 19, 2012, Claimant was examined by Dr. Caroline Leof, D.O. at
AMG. (R. 355-58.) Claimant reported that a burning sensation in his right arm and
leg persisted. (R. 355.) On September 4, 2012, Claimant was examined by Dr.
Jonathan Cone, M.D., who recorded that that Claimant had persistent back pain
and that his mood was poor. (R. 352.) Dr. Cone indicated that Claimant suffered
from multiple sclerosis, back pain, and depression. (R. 354.) Dr. Cone ordered
Claimant to continue his Copaxone injections, fluoxetine, cyclobenzaprine, and
hydrocodone-acetaminophen. (R. 353.) Claimant continued following up with Dr.
Cohen on June 4, 2012. (R. 391.) Subsequently, Dr. Cohen indicated that a
September 2012 brain MRI revealed several areas of increased T2/Flair signal in
the periventricular region, 1 juxtacortical, and that the thoracic spine MRI
demonstrated several discrete lesions throughout the cord. Id. The small foci were
of abnormal T2 location scattered throughout the brain, some of which were new,
while others were stable, compatible with multiple sclerosis. (R. 397.)

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B.

Claimant’s Testimony

Claimant testified that, on an average day, he would wake up at around 9:00
or 9:30 am, if he was able. (R. 43.) His wife would prepare his older daughter for
school and would feed the baby. Id. Plaintiff would take his Fluoxetine immediately,
“[w]ait until that starts kicking in a little bit,” and then “[t]ry to clean up a little bit,
the house, as much as I can.” Id. The babysitter would arrive at 11:00 am to “take
care of my kid and take her to school.” Id. Claimant stated that he stayed home
with his two-year-old daughter child when she got out of school, “either resting or
just doing whatever in the house,” but that he “really [doesn’t] do anything.” Id.
Around 1:00 pm, he would take his Copaxone shot, which “puts me out of
commission for a couple hours. I can’t really move. I can’t do anything. I’m in such
pain that it doesn’t allow me to really function much.” (R. 44.) He stated that he had
to schedule his activities around the shot because it would “put[ him] out of
commission for a while.” (R. 45.) He had begun taking the medication in June or
July of 2011. (R. 46-47.) He stated that he was able to drive once or twice a week.
(R. 48.) He was able to shop at the grocery store with his wife once a week. (R. 48.)
Claimant stated that he was able to carry 10 pounds—and “[s]ometimes . . . a
little more”—but that his right (and dominant) hand was weaker, and he only had
“about 80 percent feeling” in the right hand. (R. 49.) Because of this deficit, he had
“a tendency of dropping things, breaking the dishes, stuff like that just slips out of
my hands.” (R. 49.) Claimant also stated that he had “a burning, numbing, tingling
sensation that’s nonstop. I feel it all day, every day. Sometimes, as I get tired, or

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hot, or frustrated, or stressed out, it gets worse. It’s harder to focus. It’s harder to
concentrate on anything I really do. I can barely sit still at times.” (R. 49.) The ALJ
confronted Claimant about a doctor’s report from May 2011, in which Plaintiff
stated that he “has a good grasp” and “doesn’t drop anything.” (R. 52.) Claimant
replied that, when he had made that report, he “felt at the time that I was
improving, so that might have been the feel of the conversation. But I don’t recall
ever saying that I don’t drop anything, because that’s been one of my main issues.”
(R. 52.) Claimant stated that, “maybe I told him on a less basis I was dropping—at
the time, because, like I said, I feel better on certain days. I was trying to be
optimistic about my condition improving. But I was wrong at that time. (R. 52-53.)
The ALJ also asked Claimant if there had been “updated testing to evaluate
whether the lesions in your back have stayed the same, gotten worse? Anything like
that,” to which Claimant responded that he had an MRI scheduled for September
16th, a few days after the hearing. (R. 59.)
C.

The ALJ’s Decision

The ALJ evaluated Claimant’s case according to the Administration’s fivestep evaluation process. See 20 C.F.R. § 416.920(a)(4). At step one, the ALJ found
that Claimant had not engaged in substantial gainful activity since his application
date of December 28, 2010. (R. 14.) At step two, the ALJ determined that Claimant
suffered from the severe impairments of lumbar degenerative disk disease, multiple
sclerosis with myelopathy, and obesity. (R. 14.) At step three, the ALJ concluded

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that Claimant’s impairments, alone or in combination, did not meet or equal a
Listed Impairment, specifically noting Listing 11.09.
The ALJ then determined Claimant’s residual functional capacity (RFC), and
determined that he had the capacity to perform sedentary work, limited to “no more
than frequent fingering bilaterally.” (R. 16-17.) The ALJ noted that, in past medical
examinations, Claimant had indicated that he experienced numbness and pain on
his right side which affected his ability to lift and use his hands. (R. 18.) The ALJ
also noted that he had reported using a cane in the past. Id. However, the ALJ
found significant that, at a later examination in September 2011, Claimant
“admitted then that he only uses a cane intermittently, as necessary, and that he
can sit for at least two hours at one time, and pay attention for two hours without
difficulty.” The ALJ gave “great weight” to the June 2011 opinion Dr. Lina Caldwell,
who had found claimant capable of lifting or carrying 20 pounds occasionally and 10
pounds frequently, standing for two to three hours and sitting for six hours, and
occasionally “fingering with the right upper extremity.” (R. 20.) The ALJ found this
opinion “consistent with the evidence submitted at the hearing level showing
improvement,” as well as “with the claimant’s own admission and testimony that he
is able to care for his young children, drive and do light housework with breaks.” Id.
With respect to the evidence submitted after Dr. Caldwell rendered her
opinion, the ALJ found it consistent with that opinion because, at a June 2011
examination, Dr. Cohen had recorded “5/5 strength bilaterally, and Claimant’s gait
and station were normal despite somewhat decreased sensation in his lower

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extremities and right upper extremity.” (R. 20, 391.) The ALJ found that “[t]he
record would tend to correlate to a gradual, if progressive, process that remits in
response to therapy.” (R. 19.) He noted that Claimant’s 2011 MRI “documented
multiple lesions and hyperintense foci consistent with demyelinating disease,” but
concluded that “there were no new MRIs showing disease advance, although the
most recent September 2012 MRIs showed several areas of increased T2/Flair
signal in the periventricular region and one juxtacortical with several discrete
lesions throughout the thoracic spine.” (R. 19.)
III. STANDARD OF REVIEW
A decision by an ALJ becomes the Commissioner’s final decision if the
Appeals Council denies a request for review. Sims v. Apfel, 530 U.S. 103, 106–07
(2000). In this circumstance, the district court reviews the decision of the ALJ. Id.
The “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). Thus, judicial review
is limited to determining whether the ALJ’s decision is supported by substantial
evidence in the record and whether the ALJ applied the correct legal standards in
reaching that decision. Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009).
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), but a “mere scintilla” of evidence is not enough. Scott v. Barnhart, 297 F.3d
589, 593 (7th Cir. 2002).

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Though the standard of review is deferential, a reviewing court must
“conduct a critical review of the evidence” before affirming the Commissioner’s
decision. Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008). It may not, however,
“displace the ALJ’s judgment by reconsidering facts or evidence, or by making
independent credibility determinations.” Elder v. Astrue, 529 F.3d 408, 413 (7th Cir.
2008). Even when there is adequate evidence in the record to support the decision,
however, the findings will not be upheld if the ALJ does not “build an accurate and
logical bridge from the evidence to the conclusion.” Berger v. Astrue, 516 F.3d 539,
544 (7th Cir. 2008).
IV. ANALYSIS
Claimant asserts that the ALJ made two errors, first with respect to his
evaluation of the medical evidence and second with respect to his credibility finding.
The Court finds that the ALJ erred with respect to his evaluation of the medical
evidence in this case, and accordingly his decision was not supported by substantial
evidence. Because this conclusion requires remand for additional proceedings, the
Court need not address the ALJ’s alleged errors with respect to evaluating
Claimant’s credibility at this time.
A.

The ALJ’s Assessment of the Medical Evidence

Claimant asserts that the ALJ in assessing the medical evidence of record in
this case. Claimant contends that, in relying on the opinion of Dr. Lina Caldwell—
rendered prior to significant medical treatment Claimant received—to find that his

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multiple sclerosis did not meet or equal Listing 11.09 9 and in calculating his RFC,
the ALJ erred. Because Dr. Caldwell’s opinion was rendered without the benefit of
this evidence, but because the ALJ nonetheless found the evidence consistent with
Dr. Caldwell’s conclusion without having it reviewed by a physician, Plaintiff
contends the ALJ overstepped his authority. (Pl.’s Mem. at 10.) The Commissioner
responds that substantial evidence supported the ALJ’s decision to give great
weight to Dr. Caldwell’s opinion because it was consistent with the evidence
submitted at the hearing level showing improvement in Claimant’s condition and
consistent with Claimant’s testimony of his own reported daily activities.
Dr. Caldwell’s assessment formed the basis of the Commissioner’s decision to
find that Listing 11.09 was not met and that Plaintiff was capable of lifting and
carrying 20 pounds occasionally and 10 pounds frequently, standing and walking for
two to three hours and sitting for six hours, and could perform “no more than
frequent fingering with the upper right extremity.” (R. 20.) Dr. Caldwell rendered
her opinion in June 2011. (R. 309-18.) In her narrative explanation for her
conclusion, Dr. Caldwell noted that one consulting examiner had noted that, “at this

According to Listing 11.09, a claimant must show multiple sclerosis with either
“[d]isorganization of motor function as described in 11.04B,”[v]isual or mental impairment
as described under the criteria in 2.02, 2.03, 2.04, or 12.02,” or “[s]ignificant, reproducible
fatigue of motor function with substantial muscle weakness on repetitive activity,
demonstrated on physical examination, resulting from neurological dysfunction in areas of
the central nervous system known to be pathologically involved by the multiple sclerosis
process.” 20 C.F.R. Part 404, Subpart P, Appendix 1 § 11.09. Although the ALJ’s only
explicit acknowledgement of Listing 11.09 was to say that “[t]he evidence also does not
establish the requisite severity of disorganization of motor function, visual or mental
impairment or fatigue required under Listing 11.09,” (R.16), he addressed the substance of
the listing in detail in the RFC section of the opinion. See Buckhanon ex rel. J.H. v. Astrue,
368 F. App’x 674, 678-79 (7th Cir. 2010).
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time, [Plaintiff] has no neurological deficits,” and that the CE had recorded “no
sensory deficits.” (R. 317.) Furthermore, Dr. Caldwell noted that—aside from one
CE examination—at “[n]o place other than this one time CE is there mention of a
cane use,” and that—while a physical therapy report had recommended crutches in
January 2011, there was no “mention of need for or use of crutches and/or cane at
the longitudinal Neuro clinic visits.” Id.
However, after Dr. Caldwell had rendered her opinion, Plaintiff received
treatment from a number of different providers, and medical evidence from these
encounters was submitted as part of the record. On June 4, 2012 Plaintiff was again
seen by Dr. Cohen, 10 who noted that Plaintiff complained of numbness and tingling
in his right leg which “feels like fire.” (R. 388.) With regard to changes since his last
visit, Dr. Cohen noted Plaintiff was “continuing to improve, strength better,” and
that he experienced “weakness only when tired,” but that “paresthesias in the right
U[pper ]E[xtremity] persist.” (R. 389.) Although recording normal strength in the
upper extremities, Dr. Cohen noted decreased sensation in both Plaintiff’s upper
and lower right extremities. (R. 391.) As part of his plan, Dr. Cohen noted that a
brain MRI was planned for September, and that he would follow up afterward. (R.
392.) At a subsequent appointment on June 6, 2012, Dr. Cone noted that Plaintiff
was using a cane for walking. (R. 363.) Dr. Cone also ordered a pain management
referral and a follow-up a month later. Id.

Although this treatment was obtained just prior to when Dr. Caldwell rendered
her opinion as to Plaintiff’s RFC, it does not appear from the record that Caldwell had
access to this record when reaching her opinion.
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In July, Dr. Caroline Leof of the same practice group treated Plaintiff. At this
appointment, Plaintiff reported experiencing a burning sensation in his right
shoulder to his fingertips, as well as his right leg to the toes. (R. 355.) He also stated
that the pain impaired his walking. Id. Dr. Leof also noted added weakness in
Plaintiff’s arm and leg, which “[o]ccasionally impairs walking.” Id. And in a
September 2012 follow-up, Plaintiff reported the addition of a tingling sensation in
his legs to Dr. Cone. (R. 359.) In his physical examination, Dr. Cone noted that
Plaintiff “[u]ses a cane to ambulate, somewhat hunched,” although he had normal
muscle tone and a normal handshake. (R.353.) Dr. Cone noted that the plan was to
obtain the MRI of the brain. (R. 354.) Finally, on September 19, 2012 Plaintiff
underwent the MRI, which revealed “several small foci of abnormal T2 location
scattered throughout the brain, some of which are new while others are stable.” (R.
397.) The report went on to detail the location and sizes of the lesions. Id.
While the ALJ “has the authority to assess the medical evidence and give
more weight to evidence he finds more credible,” Stuckey v. Sullivan, 881 F.2d 506,
509 (7th Cir. 1989), the Seventh Circuit has “recognized that an ALJ cannot play
the role of doctor and interpret medical evidence when he or she is not qualified to
do so.” Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir. 2007). When the ALJ “rel[ies]
on conjecture and [his] own assessment of the medical evidence to reach conclusions
unsupported by the record,” the decision is not supported by substantial evidence.
See Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 569 (7th Cir. 2003).
Furthermore, an ALJ “must obtain an updated medical opinion from a medical

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expert . . . [w]hen additional medical evidence is received that in the opinion of the
administrative law judge . . . may change the State agency medical or psychological
consultant’s finding” regarding the Listings. SSR 96-6p, 1996 WL 374180, at *4.
In this case, when the ALJ concluded that the medical evidence submitted
after Dr. Caldwell’s opinion was rendered was consistent with her opinion, he
inappropriately “played doctor” and ascribed medical significance to those records
which he was not required to do. Although the ALJ’s determination as to Listing
11.09 and claimant’s RFC rested his conclusion that the evidence submitted after
Dr. Caldwell’s assessment was consistent with that assessment, the evidence in fact
contradicted that assessment in significant ways. First, with respect to the 2012
MRI, the ALJ found that MRI did not indicate advance of Claimant’s MS; however,
the MRI in fact revealed the presence of new lesions that were not present in the
earlier MRI (on which Dr. Caldwell’s opinion relied). But whether or not these
results were consistent with advance of the disease and Claimant’s alleged
symptoms was a medical decision that the ALJ was not qualified to make. See Goins
v. Colvin, 764 F.3d 677, 680 (7th Cir. 2014) (holding ALJ’s interpretation of MRI
evidence error); see also Moon v. Colvin, 763 F.3d 718, 722 (7th Cir. 2014) (“ALJs
are required to rely on expert opinions instead of determining the significance of
particular medical findings themselves.”).
Furthermore, the ALJ’s conclusion as to the new medical evidence relied
heavily on individual treatment notes indicating that, at certain times, Claimant
showed the ability to walk without limping and demonstrated full strength in his

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upper extremities. (R. 19-20.) Dr. Caldwell’s opinion itself also relied on the lack of
noted “sensory deficits, as well as the absence of cane use in the medical records she
reviewed. (R. 317.) But Claimant’s treatment records from after Dr. Caldwell
rendered that opinion show evidence of both. (R. 342, 353, 355, 359, 363.) See
Czarnecki v. Colvin, 595 F. App’x 635, 644-45 (7th Cir. 2015) (holding that ALJ
erred in finding “ ‘examinations and test results’ showed that [claimant] did not
need to use a cane, which she used at the hearing. But one of Czarnecki’s
physicians, after more than a year of treating her, had prescribed a cane, and the
ALJ impermissibly ‘played doctor’ by substituting her own opinion that a cane
really wasn’t necessary.”).
Additionally, as other courts have recognized, multiple sclerosis is “[a] slowly
progressive . . . disease characterized by disseminated patches of demyelination in
the brain and spinal cord, resulting in multiple and varied neurological symptoms
and signs, usually with remissions and exacerbations.” Mcalister v. Heckler, No. 84
C 7183, 1986 WL 5223, at *4-5 (N.D. Ill. May 1, 1986) (quoting 5 MERCK MANUAL OF
DIAGNOSIS AND THERAPY 1442 (13th ed.)); see also Wilcox v. Sullivan, 917 F.2d 272,
277 (6th Cir. 1990) (“Multiple sclerosis is an incurable, progressive disease subject
to periods of remission and exacerbation.”); Rudder v. Colvin, No. 11 CV 50286,
2014 WL 3773565, at *2 (N.D. Ill. July 30, 2014). Although some of the afteracquired records show that Plaintiff was able to walk and had good strength at
those specific appointments, these are simply snapshots at a given period, and not
necessarily inconsistent with Plaintiff’s claims of fluctuating symptoms given the

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evidence in this case. See Vincil v. Comm’r of Soc. Sec., No. 12-12728, 2013 WL
2250580, at *13 (E.D. Mich. May 22, 2013) (“If Plaintiff's impairment were one
subject to linear decline or improvement, such as a broken bone, evidence of
improvement might be considered ‘inconsistent’ with a physician’s opinion that a
patient is disabled; however, multiple sclerosis is, by its very nature, a disease that
waxes and wanes.”) (citing Wilcox v. Sullivan, 917 F.2d 272, 277 (6th Cir.1990)); cf.
Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011) (“Even if we accept the March
2007 treatment note as evidence that Punzio enjoys a few ‘good days,’ that evidence
still offers no support for the ALJ’s finding that her mental illness does not prevent
her from holding a job. After all, the vocational expert testified that no employer
would hire Punzio to perform unskilled work if her mental illness limits her
abilities even just 20 percent of the time—or if she experiences as few as three ‘bad
days’ a month that cause her to miss work.”).
While it was Claimant’s responsibility to produce evidence in this case, and
although the “duty to make a complete record . . . can reasonably require only so
much,” Scheck v. Barnhart, 357 F.3d 697, 702 (7th Cir. 2004), the ALJ also has a
“responsibility to recognize the need for additional medical evaluations.” See Scott v.
Astrue, 647 F.3d 734, 741 (7th Cir. 2011). In this case, the ALJ should have
submitted the additional medical evidence to a medical expert before concluding
that Plaintiff’s condition had improved and that the medical evidence submitted
after Dr. Caldwell’s evaluation was consistent with that evaluation. In failing to do
so and instead concluding that the evidence did not contradict Dr. Caldwell’s

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evaluation, the ALJ inappropriate “played doctor.” Accordingly, this case must be
remanded to the Administration.
B.

The ALJ’s Assessment of Claimant’s Credibility
Claimant also makes a number of arguments regarding the ALJ’s

assessment of his allegations as to the limiting effects of his symptoms. Because the
decision will otherwise be remanded as described above, the Court need not address
these alleged errors in detail here. See Scott, 647 F.3d 734, 741 (7th Cir. 2011).
However, the Court does not that, since the ALJ decided Claimant’s case, the Social
Security Administration has recently updated its guidance about evaluating the
effects of a Claimant’s symptoms on his RFC, eliminating “credibility” from the
analysis to “clarify that subjective symptom evaluation is not an examination of the
individual’s character.” See SSR 16-3p, 2016 WL 1119029 (effective March 28,
2016). Id. at *1. On remand, the ALJ should re-evaluate the effects of Claimant’s
symptoms in light of SSR 16-3p.
Additionally, the Court notes that the ALJ did not specifically address one of
Plaintiff’s main symptoms—that, as a side effect of his prescribed daily shot of
Copaxone, he was rendered incapacitated for up to two hours at a time. (R. 44.)
Given the testimony of the Vocational Expert that anything more than 12 percent of
off-task time would eliminate all employment, (R. 75), this allegation should be
specifically consider this allegation explicitly on demand. See 20 C.F.R.
416.929(c)(3)(iv) (“Factors relevant to your symptoms, such as pain, which we will
consider include . . . side effects of any medication you take or have taken to
alleviate your pain or other symptoms”). Finally, the ALJ should be mindful that
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the Seventh Circuit has repeatedly cautioned care in evaluating the significance of
a claimant’s daily activities when determining the ability to perform full-time work.
See, e.g., Engstrand v. Colvin, 788 F.3d 655, 661 (7th Cir. 2015); see also Hill v.
Colvin, 807 F.3d 862, 869 (7th Cir. 2015) (discussing claimant’s babysitting). On
remand, the ALJ should also closely determine the consistency of the activities
Claimant is found able perform with the limitations the ALJ finds to exist, and the
compatibility of those limitations with sustaining full-time work, consistent with
the Administration’s new guidance.
IV. CONCLUSION
For the foregoing reasons, Claimant Rios’ motion for summary judgment is
granted and the Commissioner’s cross-motion for summary judgment [Doc. No. 19]
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

May 24, 2016

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