Warren v. Colvin

Filing 19

MEMORANDUM Opinion and Order: For the reasons stated in the attached memorandum opinion and order, the Commissioner's motion for summary judgment 16 is denied, the ALJ's decision is vacated, and the case is remanded to the Social Security Administration for further proceedings consistent with this decision. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 1/4/2017:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CRYSTAL D. WARREN,
Plaintiff,
v.
CAROLYN COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 15 C 8987
Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
Plaintiff Crystal D. Warren appeals from the final decision of the Acting
Commissioner of Social Security (“Commissioner”) denying her application for
disability insurance benefits. For the reasons that follow, the Commissioner’s
decision is vacated and the case is remanded for further proceedings.
BACKGROUND
Warren filed an application for disability benefits on August 17, 2011,
alleging that, as a result of her illnesses, she has been unable to work since March
14, 2011. (AR 121). 1 Warren later amended the date of the onset of her disability to
April 1, 2012. (AR 211). Warren’s application was denied initially on March 9, 2012,
(AR 124), and upon reconsideration on July 2, 2012, (AR 128, 131). On July 18,
2012, Warren filed a request for a hearing before an Administrative Law Judge
1

Citations to “AR” are to the Administrative Record, R. 11.

(“ALJ”). The hearing took place on February 18, 2014 (AR 51-117), and the ALJ
issued a written decision denying Warren’s application on May 30, 2014 (AR 20-44).
The ALJ’s findings on steps 1, 2 and 3 of the five-part sequential evaluation process
used to determine whether a claimant seeking Social Security disability benefits is
disabled, 2 are not in dispute. Instead, Warren’s appeal focuses on the ALJ’s
determination on step 4, that she has the residual functional capacity (“RFC”) to
perform her past relevant work as a mailroom attendant, and, on step 5, that she
also can perform other “light work” jobs 3 in the national economy such as hand
packager, cleaner, and laundry sorter. Warren filed a request for review of the
ALJ’s decision with the Social Security Administration Appeals Council on August
1, 2014. (AR 15). The Appeals Council denied her request on August 26, 2015.
(AR 1). Warren then filed the present action. R. 1. This Court has jurisdiction to
review the Commissioner’s final decision denying Warren’s application for disability
benefits pursuant to 42 U.S.C. § 405(g).
“To determine disability, the ALJ makes a five-step inquiry: (1) whether the
claimant is currently employed, (2) whether the claimant has a severe impairment,
(3) whether the claimant’s impairment is one that the Commissioner considers
conclusively disabling, (4) if the claimant does not have a conclusively disabling
impairment, whether she can perform her past relevant work, and (5) whether the
claimant is capable of performing any work in the national economy.” Dixon v.
Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001) (citing 20 C.F.R. § 404.1520).
2

See 20 C.F.R. § 416.967(b) (“Light work involves lifting no more than 20 pounds at
a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is in this category when it requires
a good deal of walking or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do
substantially all of these activities.”).
3

2

STANDARD OF REVIEW
Judicial review of a final decision of the Social Security Administration is
generally deferential. The Social Security Act requires the reviewing court to
sustain the ALJ’s findings if they are supported by substantial evidence. See 42
U.S.C. § 405(g). Substantial evidence means “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). The court should review the entire administrative
record, but must “not reweigh the evidence, resolve conflicts, decide questions of
credibility, or substitute [its] own judgment for that of the [ALJ].” Clifford v. Apfel,
227 F.3d 863, 869 (7th Cir. 2000). “However, this does not mean that [the court] will
simply rubber-stamp the [ALJ’s] decision without a critical review of the evidence.”
Id. A decision may be reversed if the ALJ’s findings “are not supported by
substantial evidence or if the ALJ applied an erroneous legal standard.” Id. In
addition, the court will reverse if the ALJ does not “explain his 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). In addition, the
ALJ “has a duty to fully develop the record before drawing any conclusions,”
Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir. 2007), and deference in review is
lessened when the ALJ has made errors of fact or logic, Thomas v. Colvin, 745 F.3d
802, 806 (7th Cir. 2014). When the ALJ has satisfied these requirements, the
responsibility for deciding whether the claimant is disabled falls on the Social
Security Administration, and, if conflicting evidence would allow reasonable minds

3

to differ as to whether a claimant is disabled the ALJ’s decision must be affirmed.
Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990) (internal quotation marks and
citation omitted).
DISCUSSION
The ALJ found that Warren suffered from several severe impairments,
including systemic lupus erythematous (“SLE”), depression, anxiety, and alcohol
abuse. (AR 22). SLE is an autoimmune disease where the body’s immune system
mistakenly attacks healthy tissue. See https://medlineplus.gov/ency/article/000
435.htm (last visited on 1/3/2017). It can affect the skin, joints, kidneys, brain, and
other organs, with symptoms varying from person to person depending on which
body parts are most affected in that person. Id. Almost everyone with SLE,
however, has joint pain and swelling in the fingers, hands, wrists, and knees. Id. In
addition to her joints, Warren’s SLE symptoms in the past have primarily affected
her

skin,

a

condition

known

as

discoid

lupus.

See

http://www.aocd.

org/?page=DiscoidLupusErythe (last visited on 1/3/2017). A person with discoid
lupus can experience chronic skin sores, inflammation, and scarring on the face,
ears, scalp and other parts of the body. Id.
According to her medical records, Warren is being treated by a team of
doctors at Northwestern Medical Facility. Her primary care provider is Dr. Tang,
and her treating rheumatologist is Dr. Hsieh. Warren also has received treatment
from a psychiatrist (Dr. Dinwiddie), an ophthalmologist (Dr. Schmidt), a
dermatologist (Dr. Laumann), and another internist (Dr. Dolan). To control her

4

lupus

symptoms,

Warren

has

been

prescribed

a

medication

called

hydroxychloroquine, also known as Plaquenil. (AR 342). The possible side effects of
Plaquenil include headaches, dizziness, nausea, and vision problems. See
https://www.nlm.nih. gov/medlineplus/druginfo/meds/a601240.html (last visited
on 1/3/2017). In addition to taking Plaquenil to control her lupus symptoms, Warren
is taking medications for pain (methotrexate, prednisone, and ibuprofen), for skin
irritations, lesions, and hair loss (clindamycin lotion and clobetasol propionate), for
chronic coughing (albuterol inhaler), and for depression (Paxil). (AR 342).
Warren reports that her symptoms from lupus include constant pain,
swelling, weakness, numbness, and tingling in her hands, legs, ankles, and/or back.
(AR 253). She also reports “severe throbbing pain” in her left eye, blurred vision,
lesions on her scalp that ache at times, shortness of breath with physical activity,
and “burning pain in [her] back after sitting for longer periods of time.” (Id.). She
states that she (1) has “difficulty getting up from a seated position due to muscle
spasms in [her] back,” (2) “cannot lift and carry objects that weigh more tha[n] a
gallon of milk,” (3) “experience[s] lightheadedness and dizziness,” and (4) is
“sensitive to the light, sit[s] in the dark a lot,” and has “to avoid being in the sun
due to doctor[’]s orders.” (Id.). She also reports that she has feelings of “hopelessness
and helplessness,” “nervousness and frustration,” and “self-hate, guilt and
worthlessness,” and that she is “easily angered,” “lack[s] motivation to do most
things,” has “mood swings” and “crying spells a few times per day,” “has difficulty
concentrating,” and “lacks energy and is fatigued most of the time.” (Id.). She states

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that she avoids being around others, does not talk on the phone, isolates herself at
home, and needs to be reminded to care for her personal needs such as showering
and combing her hair. (Id.).
Warren repeated these symptoms at the administrative hearing, where she
testified that the pain she experiences has increased significantly since she was first
diagnosed with lupus, that her back hurts, her hands hurt, and her head throbs
daily (AR 76), that she had a pain shooting down to her kneecap and around to her
abdomen as she was testifying right then (AR 82), that four days out of the week the
pain is “excruciating (id.), that she does not sleep well because of the pain (AR 83),
that she stopped driving because her leg no longer functions comfortably (id.), and
that she frequently does not wear underwear at home because the pain in her
fingers prevents her from putting them on (id.). She wears splints on her hands
“24/7” to help with the wrist pain, but neither the splints nor ibuprofen help with
the pain in her fingers (AR 83-84). She gets headaches at least three to four times
during the week, which she experiences as a throbbing pain over her left eye (AR
85-86), and she sees a psychiatrist to talk about her depression from having lupus
and how it changed her life and forced her to take all kinds of medicine that make
her feel sick (AR 86-87). She reports that she has tried a number of antidepressants,
but experiences negative side effects from them (AR 87-88), and that she has not
been able to obtain continuous psychiatric treatment because her insurance does
not cover it and she cannot always afford to pay for the appointments (AR 88). She
testified that, although she had tried in early 2012 to return to work on a part-time

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basis, she was fired in May 2012 because her employer could no longer
accommodate her part-time work schedule. (AR 71-72). She estimated she could lift
four pounds, stand about fifteen minutes at a time, walk about a half block, and sit
twenty to thirty minutes continuously without exacerbating her pain. (AR 103-105).
A person is disabled under the Social Security Act 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 12
months.” 42 U.S.C. § 423(d)(1)(A). Warren’s description of her symptoms makes a
compelling case that she is disabled from gainful employment, which “normally
requires an ability to work a 40–hour week without missing work more than twice a
month.” Allensworth v. Colvin, 814 F.3d 831, 833 (7th Cir. 2016). The ALJ, however,
rejected both Warren’s testimony concerning the nature and extent of her
impairments and the medical opinion evidence that supported a finding that she
was disabled. After a thorough review of the record, the Court concludes that the
reasons given by the ALJ for her rejection of this evidence are either legally
insufficient or not supported by substantial evidence, thus requiring a remand for
reconsideration of Warren’s disability application in accord with the principles
discussed below.
A.

THE ALJ’S REJECTION OF THE OPINION OF WARREN’S
TREATING PRIMARY CARE PHYSICIAN

The ALJ rejected the opinion of Warren’s treating primary care physician,
Dr. Tang, who stated in a letter dated April 30, 2012 that, “[b]ecause of [Warren’s]
7

multiple medical conditions,” she “recommended that it not be in [Warren’s] best
interest to work full-time.” (AR 709). Dr. Tang further stated that, “[d]ue to the
uncertain course of [Warren’s] medical condition and the necessary ongoing changes
in medication management, [she is] unable to supply a concrete date for [Warren’s]
return to work on a full-time basis.” (Id.). “[T]o the extent a treating physician’s
opinion is consistent with the relevant treatment notes and the claimant’s
testimony, it should form the basis for the ALJ’s determination.” Bates v. Colvin,
736 F.3d 1093, 1100 (7th Cir. 2013) (citation omitted). But the ALJ accorded
Dr. Tang’s opinion only “slight weight” because (1) it was “conclusory”; (2) it did “not
contain any functional capacity assessment”; (3) it was “not consistent with or
supported by Dr. Tang’s contemporaneous progress and examination notes, or with
the objective imaging studies and laboratory reports”; and (4) it “seem[ed] to be
affected by her sympathy for the claimant, and claimant’s reported need for
frequent visits to manage her treatment and medication.” (AR. 38) None of these
reasons justify the ALJ’s rejection of Dr. Tang’s opinion.
To begin with, the asserted conclusory nature of Dr. Tang’s opinion is not an
adequate basis to reject it. To be sure, the ALJ was not bound by Dr. Tang’s
conclusion in her letter that Warren should not work full-time. See Garcia v. Colvin,
741 F.3d 758, 760 (7th Cir. 2013) (the ALJ “was not bound” by the claimant’s
doctor’s statement in a letter that the claimant “‘will be unable to return to any
form of employment,’ because a doctor may not be acquainted with the full range of
jobs that a person with [the claimant’s] ailments could fill”). Nevertheless, it

8

appears from Dr. Tang’s letter and Warren’s medical records that Warren’s ability
to work full-time was severely diminished by the overall impact of her many
symptoms, by the side-effects of her various medications taken for those symptoms,
by the uncertainties caused by sudden onset and fluxuating symptoms, and by the
practical and emotional difficulties she understandably was having managing all of
those things. The impact of these things on Warren’s RFC are matters “to which
medical testimony is relevant and if presented can’t be ignored.” Id. (citing Bjornson
v. Astrue, 671 F.3d 640, 647-48 (7th Cir. 2012), and Ferguson v. Commissioner of
Social Security, 628 F.3d 269, 272-73 (6th Cir. 2010)). If the ALJ thought that it was
possible there were jobs in the economy that Warren could perform despite her
lupus diagnosis and the difficulties that diagnosis presented for her, as alluded to in
Dr. Tang’s letter, she “should have asked [Dr. Tang] to specify more exactly what
‘functions’ [Warren] is incapable of performing,” Garcia, 741 F.3d at 760, before
rejecting Dr. Tang’s opinion as conclusory and according it only slight weight for
that reason. 4

See, e.g., Barnett v. Barnhart, 381 F.3d 664, 669 (7th Cir. 2004) (ALJ must
consider medical opinions regarding claimant’s ability to work and “should
recontact the doctor for clarification if necessary) (citing 20 C.F.R. § 404.1527(c)(3),
S.S.R. 96–2p at 4, and Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (“If the
ALJ thought he needed to know the basis of [medical] opinions in order to evaluate
them, he had a duty to conduct an appropriate inquiry, for example, by subpoenaing
the physicians or submitting further questions to them.”)); see also Smith v. Apfel,
231 F.3d 433, 437 (7th Cir. 2000) (criticizing the ALJ for discounting the functional
limitations set forth by treating physician and stating that, if the ALJ was
concerned that the medical evidence was insufficient to support those limitations,
he should have ordered more recent medical records).
4

9

Similarly, the ALJ should not have discounted Dr. Tang’s opinion based on
the absence of a functional capacity assessment. Presumably, the ALJ was referring
to Warren’s physical functional capacity when she mentioned Dr. Tang’s failure to
provide such an assessment. Again, the ALJ should have asked Dr. Tang to clarify
her physical functional capacity assessment of Warren if the ALJ desired more
information about that before deciding what weight to give Dr. Tang’s opinion.
Moreover, a claimant’s RFC can be affected by both exertional impairments and
non-exertional impairments. “Exertional impairments are those that affect the
claimant’s ‘ability to meet the strength demands of jobs (sitting, standing, walking,
lifting, carrying, pushing, and pulling),’” while “[n]onexertional impairments—such
as depression, anxiety, difficulty concentrating or remembering—are defined as all
other impairments that do not affect a claimant’s ability to meet the strength
demands of jobs.” Fast v. Barnhart, 397 F.3d 468, 470 (7th Cir. 2005) (quoting 20
C.F.R. § 404.1569a(b) and 20 C.F.R. § 404.1569a(c)(1)). Dr. Tang’s opinion appears
to reflect primarily non-exertional impairments related to the uncertainties and
difficulties in managing a medical diagnosis of lupus, and her opinion regarding
these non-exertional matters is not rendered irrelevant simply because she does not
also state an opinion regarding the extent to which Warren’s RFC is affected by
exertional impairments caused by her illness. The ALJ had a duty to consider both
exertional and non-exertional impairments in deciding whether Warren was
disabled.

10

Third, the ALJ failed to provide an explanation of the ways in which
Dr. Tang’s opinion was inconsistent with or not supported by her contemporaneous
progress and examination notes or the objective imaging studies and laboratory
reports. While the Court could speculate about what the ALJ had in mind based on
the ALJ’s description of the medical records in another part of her decision, it would
not be appropriate to do so. Instead, the ALJ “must build an accurate and logical
bridge from the evidence to [her] conclusion,” Beardsley v. Colvin, 758 F.3d 834, 837
(7th Cir. 2014), and the ALJ did not make any attempt to do that here.
Finally, the ALJ’s speculation that Dr. Tang’s opinion might have been
affected by her sympathy for Warren is not supported by substantial evidence in the
record. While the Seventh Circuit has said that the ALJ has the ability as a trier of
fact to consider a treating physician’s possible sympathy bias, see, e.g., Reynolds v.
Bowen, 844 F.2d 451 (7th Cir.1988); Stephens v. Heckler, 766 F.2d 284 (7th Cir.
1985), it also has stated that:
Reynolds and Stephens do not create a presumption of
bias in a treating physician’s disability opinion; the cases
recognize only the ALJ’s ability as a trier of fact to
consider a physician’s possible bias. The ability to
consider bias, however, is not synonymous with the ability
to blithely reject a treating physician’s opinion or to
discount that physician’s opportunity to have observed
the claimant over a long period of time. Reynolds and
Stephens, moreover, do not change the requirement that
the ALJ’s findings be supported by substantial evidence; a
requirement we believe the ALJ has failed to meet in this
case.
Micus v. Bowen, 979 F.2d 602, 609 (7th Cir. 1992). The possibility of bias is not
supported by the record here because, like Micus, “[t]his case does not involve
11

[dueling] experts,” with one opinion from a consulting expert “with a thorough
knowledge of a disease versus a [second opinion by a treating physician, who is a]
perhaps parochial and biased general practitioner.” Id. In fact, the only consulting
expert opinions in the record were rejected by the ALJ. The state examining expert
opined that, as of February 17, 2012 (the date of his physical examination of
Warren), Warren could perform “the full range of work at the medium exertional
level.” (AR 39). This opinion apparently was based on the consulting physician’s
findings that Warren’s “gait was normal and without any assistive devices,” that
she “had normal grip strength bilaterally,” that she “was able to grasp, finger, and
manipulate with each hand bilaterally,” that “[m]otor strengt[ ]h was 5/5
throughout,” and that her “[s]ensation a[n]d deep tendon reflexes were within
normal limits.” (AR 440). On June 27 and 29, 2012, two other state consulting
experts reviewed the file and affirmed the opinion of the state examining physician
after consideration of additional medical records showing Warren’s treatment for
depression with Dr. Dinwiddie in March 2012. (AR 455). The ALJ rejected all of
these consulting opinions after concluding that “the record as a whole, including
evidence added after the State Agency reviews, shows that the claimant is more
limited than [the state consulting physicians] opined.” (AR 39). 5
Despite rejecting the consulting physicians’ RFC opinions that Warren could
perform medium work, the ALJ stated that she accorded those physicians’ reports
“some weight.” (AR 39). The ALJ, however, did not explain the logic of according
those opinions “some weight” when the ALJ acknowledged that the only consulting
physician who examined Warren did so on February 17, 2012 (AR 440), and that
evidence in the record regarding Warren’s physical limitations from after that date
rebutted the physical findings from that examination.
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The only explanation (if it can be called that) given by the ALJ for suspecting
that Dr. Tang’s opinion was influenced by sympathy for Warren was Warren’s
“reported need for frequent visits to manage her treatment and medication.”
(AR 38). It is not clear whether the ALJ meant that Dr. Tang was the one who
reported the need for frequent doctor’s visits or whether that was a need reported by
Warren for which Dr. Tang had sympathy. If Dr. Tang was the one who reported
the need in question, then her report was a medical opinion that the ALJ could not
simply ignore. Instead, she was required to state her reasons for rejecting either the
accuracy of that need or else Dr. Tang’s medical conclusion that the need imposed
relevant non-exertional restrictions on Warren’s RFC. The ALJ did neither.
If the ALJ questioned whether Warren even had a need for frequent medical
attention, she failed to cite any evidence in the record for doing so, such as evidence
showing that the number and variety of doctor’s visits shown in the record were
unwarranted by Warren’s medical symptoms. In fact, the ALJ appears to be critical
of Warren in other parts of her decision based on Warren’s failure to make or keep
follow-up appointments with certain physicians. 6 It appears that the most accurate
interpretation of the ALJ’s statement regarding Warren’s “reported need for
It is not clear whether the ALJ thought this failure reflected on Warren’s
credibility concerning the severity of her symptoms (as in, if her symptoms were as
severe as she said they were, then she would have gone to the doctor more
frequently), or whether the ALJ believed this failure was the cause of some of
Warren’s symptoms (as in, her symptoms would not have been as bad as they were
if she had sought appropriate treatment more frequently). In either case, however,
it would be neither logical nor fair to criticize Warren in one part of the decision for
having too many doctor’s appointments, while at the same time criticizing Warren
in another part of the decision for not having more doctor’s appointments.

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frequent visits to manage her treatment and medication” is that the ALJ thought
Warren was capable of managing her medical treatment more effectively and in
such a way that it would not affect her ability to work full-time. The ALJ’s
reasoning appears to be based on the cryptic comment that Warren’s frequent
doctor visits were “not well supported by the record, which shows that the
claimant’s non-compliance with Plaquenil was not related to her work, but rather
her own choice.” (AR 38). Without further explanation, the Court cannot say for
certain what the ALJ meant by this statement. It appears, however, that the ALJ
was referring to evidence in the record that Warren has not always taken her lupus
medication, Plaquenil, regularly. See AR 38 (citing to a psychiatric medical note
dated February 12, 2014 (AR 873), which states among other things that Warren
“[a]dmitted to her long denial of her SLE, [and] previous nonadherence to its
treatment”).
There are numerous reasons why it was inappropriate for the ALJ to rely on
Warren’s admitted failure to always have taken Plaquenil regularly as prescribed
by her doctors as the ALJ’s reason for rejecting Dr. Tang’s opinion that Warren
could not work full-time while managing her medical treatment. First and foremost,
the reason Warren most often gave for failing to take the Plaquenil regularly was
that the side effects interfered with her ability to work. 7 Thus, there is not

See, e.g., AR 78-80 (admitting to difficulty accepting her lupus diagnosis and
initially avoiding some of her treatment regimen because her medications made her
sick and nauseous while she was at work); see also AR 516 (“Pt was officially laid off
at work . . . [and] feels relieved about the whole scenario because she feels it was too
stressful to try to take care of her health while working. She admits she was unable
7

14

substantial evidence in the record to support the ALJ’s conclusion that Warren’s
“non-compliance with Plaquenil was not related to her work, but rather her own
choice.” AR 38 (emphasis added). 8
In addition to the side effects of Plaquenil affecting her ability to work, there
simply is no indication in the vast majority of the medical notes in the record that,
had Warren taken her lupus medication more regularly, she would not have needed
as many doctor’s visits as she did. The primary medical basis for the ALJ’s apparent
conclusion to the contrary are one or two comments in the medical notes by
Warren’s ophthalmologist stating that Warren’s eye pain might be more controlled
if she were more regular about taking the Plaquenil. Aside from the fact that it is
unclear to what degree those notes are based on medical fact versus speculation by
Warren’s treating ophthalmologist, the comments in question are from a period
prior to the amended onset date for Warren’s disability. Further, they relate only to
the issue of Warren’s recurring eye pain, and do not support the conclusion that
Warren would not have needed all of the other medical treatment shown by her

to take her medications reliably while working and was always worried about sideeffects (such as needing to run to the bathroom) which would prevent her from
doing her job while at work. Her medications for depression has also made her
extremely fatigued and sleepy.”); AR 793 (“many of her medications make her
nauseous”).
There is one relatively isolated instance in the record in which it might be said
that it was Warren’s “choice,” as opposed to her need to not be sick at work, that
caused her to not take her medicine. That instance was when Warren admitted to
not taking the Plaquenil for a three week period because she was undergoing a fast
for religious reasons and stopped taking virtually all of her medications due to
concern about taking them on an empty stomach. (AR 526).
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15

medical records from doctors other than her ophthalmologist. 9 As will be discussed
later in this opinion, there also is some indication in Dr. Hsieh’s medical notes from
the latter part of 2013 that she believed Warren’s joint problems would improve if
she became more compliant with taking the Plaquenil. But for the most part
Warren’s medical records indicate that she had numerous medical issues after the
onset date despite being more consistent with taking her medication. Indeed, from
August 2013 through December 2013, it appears that, in addition to appointments
with her treating primary care physician and treating rheumatologist, Warren may
have had appointments with up to twelve other physicians and/or nurse
practitioners concerning issues she was having with her eyes, skin, ankle, balance
(brain MRI) and chronic cough (chest x-ray).
The medical records reflecting these medical appointments for the most part
indicate that Warren was taking the Plaquenil as prescribed. See, e.g., AR 813-814,
635-639, 647-654. 10 Nothing in these medical records indicates that the doctors who
Dr. Schmidt treated Warren for intermittent eye pain and vision difficulties such
as blurred vision, as well as regularly screened Warren for vision problems that
could arise from taking Plaquenil. In other words, Warren would have had to be
seen by the ophthalmologist on a fairly regular basis even if it was unnecessary for
her to seek treatment for eye pain caused by flare-ups of her lupus, because she still
needed to be monitored for vision problems that could arise from her taking of
Plaquenil.
9

The ALJ attempts to discredit the comments in the medical notes about Warren’s
medication compliance by citing to Warren’s pharmacy records, which the ALJ
states show Warren had not filled her Plaquenil prescription on a regular basis
despite reporting to her doctors that she had been taking it. E.g., AR 38 (“Dr. Hsieh
may have accepted as truthful several of claimant’s reports that she had symptoms
and [sic] spite of Plaquenil compliance when the pharmacy records contradict
several of those reports.”). But when Warren testified that she told Dr. Hsieh she
was in fact trying to take the medicine as prescribed, the ALJ failed to question
10

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Warren saw believed the appointments would not have been necessary had Warren
been more compliant with taking the Plaquenil. 11 In short, a fair reading of the
Warren regarding her supposed failure to re-fill her prescription on a regular basis.
(AR 79-80). Without exploring that issue further and allowing Warren an
opportunity to explain the discrepancy between her asserted medication compliance
and her pharmacy records, the Court cannot say that the ALJ’s suggestion about
the inaccuracy of the medical record notations concerning medication compliance is
supported by substantial evidence. See Scrogham v. Colvin, 765 F.3d 685, 699 (7th
Cir. 2014) (cautioning ALJs to make inquiries of the claimant about any perceived
inconsistencies in the record); Craft v. Astrue, 539 F.3d 668, 679 (7th Cir. 2008)
(finding that an ALJ must not draw any inferences about the claimant’s condition
from his lack of medical care “unless the ALJ has explored the claimant’s
explanations as to the lack of medical care”); Schickel v. Colvin, 2015 WL 8481964,
at *14 (N.D. Ill. Dec. 10, 2015) (holding that the ALJ’s failure to ask the claimant
about perceived inconsistencies “undermines his assessment”).
As an example, Dr. Tang’s medical note written on November 4, 2013 notes a long
list of Warren’s “[a]ctive [p]roblem[s],” including discoid lupus, SLE, joint pain,
hemangioma of liver, constipation, dyspepsia, recurrent major depression,
overweight, and “encounter for longer (current) use of high-risk medication.”
(AR 767). Dr. Tang lists eight medications that Warren was then taking, including
Plaquenil. (AR 767-768). Dr. Tang describes the complexity of Warren’s medical
issues as follows:
11

For her SLE-related arthritis, she did not have sustained
response after kenalog injection, and recently was started
on MTX 1 month ago. Since then, she describes that she
has been feeling extremely nauseous, has poor appetite,
has problems sleeping, has had progressive issues with
balance, and generally feels “discombobulated.” Also has a
new rash on her back. She also describes a cough for 3
months, dry, hacking cough, nighttime predominant. No
new orthopnea, PND, leg swelling, no increase in SOB,
although she is chronically fatigued.
On further probing, she describes that the balance
problem began prior to starting MTX.
She is extremely frustrated with both her medical course
and her inability to work and subsequent draining of her
savings. Wants to know if she qualifies for disability.
17

medical notes disproves the notion that the primary cause of Warren’s repeated
need for medical care was her failure to follow prescribed medical treatment. As
best the Court can tell, the ALJ’s contrary conclusion is based on a few comments in
the medical records appearing across a long period of time, which themselves do not
fully discuss the situation regarding Warren’s failure to regularly take the medicine
and the relationship of that failure to Warren’s medical condition, as well as
perhaps on the ALJ’s own super-imposed judgment on Warren’s admitted past
failures.

She is scheduled to
dermatologist today.

see

her

rheumatologist

and

AR 767. In response to Warren’s reported symptoms, Dr. Tang states that she has
no clear treatment plan for Warren’s imbalance issues, that her plan for Warren’s
chronic cough was to send Warren for a chest x-ray, that Warren’s major depression
was “compounded by above medical problems” and that her plan in that regard was
“to continue Paxil for now at current dose” because, “given multiple new issues and
potential for medication side effects,” she did “not want to increase the dosage at
that time.” Id. There are numerous medical notes in the record such as this, which
do not place any blame on Warren for her medical problems based on a failure to
take her medications regularly. Another example is a form completed by Warren’s
dermatologist dated December 11, 2012, which indicates without reference to
medication noncompliance that Warren has extensive skin lesions “persisting for at
least 3 months despite continuing treatment” which cover her “[t]otal head and
fingers,” that the skin lesions seriously interfere with her motion of the joints in two
extremities and the palms of both hands, “seriously limiting patient[’]s ability for
fine and gross motor movements,” and that Warren’s “extensive skin lesions”
“produce[ ] an inability to function outside a highly protective environment for a
continuous period of at least 12 months.” (AR 576). The ALJ ignored these medical
notes/reports in favor of comments that mention Warren’s failure to take the
Plaquenil consistently, many of which pre-date her onset date. “Although the ALJ
need not discuss every piece of evidence in the record, [s]he must confront the
evidence that does not support h[er] conclusion and explain why it was rejected.”
Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004).
18

B.

THE ALJ’S REJECTION OF THE OPINION OF WARREN’S
TREATING RHEUMATOLOGY SPECIALIST

The ALJ also rejected an opinion of Warren’s treating rheumatologist,
Dr. Hsieh, dated December 20, 2013. Dr. Hsieh completed a medical evaluation
form for the State of Illinois, Department of Human Services, requesting
information about Warren for purposes of determining Warren’s eligibility for
public assistance benefits or her employability status. (AR 816). 12 Dr. Hsieh
indicated in the form that Warren’s capacities in an eight-hour workday, five-days a
week, to walk, bend, stand, stoop, sit, turn, climb, push, pull, speak, travel, fine
manipulation, gross manipulation, finger dexterity, and ability to perform activities
of daily living, were all reduced by more than fifty percent. (AR 820). Dr. Hsieh also
indicated that Warren could lift no more than ten pounds at a time. Id. The ALJ did
not assign any particular weight to Dr. Hsieh’s opinion, but stated that it was not
consistent with her treatment notes and other objective evidence of record. (AR 38).
The only explanation given for that conclusion is that Dr. Hsieh “has consistently
described the claimant’s lupus as mild in her treatment records, and that she
expected claimant’s symptoms to be controlled with prescribed medication.” (AR 38).
Similarly, the ALJ states that Dr. Hsieh’s findings on the preceding pages of the
form are inconsistent with the functional limitations she notes on the last page,
The ALJ notes in her decision that both Dr. Hsieh and Dr. Tang may have
submitted their opinions “in connection with claimant’s short and/or long-term
private disability claims” (AR 39), but does not explain why this fact is a reason to
disregard their opinions insofar as they may be relevant to the ALJ’s determination
of disability, even if, as the ALJ asserts, “the Commissioner uses different
standards to assess disability than do such private insurers” (id.).
12

19

because she found only mild tenderness and reduced range of motion in Warren’s
wrists, with no synovitis, no ankle joint effusion, and no active scalp lesions. (Id.).
The

ALJ’s conclusion that

Dr.

Hsieh’s functional

limitations were

inconsistent with her medical notes and other parts of the same form is not
supported by a reasoned explanation. The ALJ based her finding of inconsistency in
the form itself on the fact that Dr. Hsieh makes note of only mild abnormalities in
Warren’s muscular skeletal system. (AR 818). But the ALJ offered no explanation
for why she believed Dr. Hsieh’s opinion should be invalidated because more
marked musculoskeletal findings were not present. See Roddy v. Astrue, 705 F.3d
631, 637 (7th Cir. 2013) (ALJ should explain inconsistency). To the contrary, the
ALJ’s perfunctory dismissal of the opinion of Warren’s long-time treating
Northwestern rheumatology specialist based on the ALJ’s perception that joint
findings would be markedly profound if that opinion were accurate highlights the
danger of the ALJ making a medical determination for which she is not qualified.
See Moon v. Colvin, 763 F.3d 718, 722 (7th Cir. 2014) (“[T]he ALJ’s reliance on
Moon’s ‘unremarkable’ 2008 MRI as evidence that her migraines were not a
significant problem is not supportable. No doctor ever suggested that the MRI
evidence meant anything about Moon’s migraines, and for good reason. Doctors use
MRIs to rule out other possible causes of headache—such as a tumor—meaning that
an unremarkable MRI is completely consistent with a migraine diagnosis.”) (citing
“Migraines: Tests and Diagnosis,” Mayo Clinic, http://www.mayoclinic.org/diseases-

20

conditions/migraine-headache/basics/tests–diagnosis/con–20026358 (visited Aug. 13,
2014)).
Information available on the internet indicates that “[a]rthritis or synovitis
(inflammation of the joint lining, called synovium) is common in Systemic Lupus
Erythematosus (SLE),” with “up to 90% of patients” experiencing it at some point in
time. Further, “[t]he pain is usually more severe than expected based on the
appearance of the joint on examination. In fact, sometimes there is pain without
swelling or even tenderness in the joint, in which case the symptom is called
‘arthralgias’ (literally meaning ‘joint pain’ in Greek).” https://www.hss.edu/
conditions_joint-pain-lupus-really-arthritis.asp (last visited on 1/3/2017). The Court
is not attempting to inject its own factual findings into the matter but is only using
this information to illustrate why it was inappropriate for the ALJ to reject
Dr. Hsieh’s medical opinion regarding Warren’s functional limitations based on an
unstated medical assumption the ALJ apparently was making without evidentiary
support in the record to back it up. The possibility that an ALJ might “mistaken[ly]
read[ ] [ ] the evidence illustrates why ALJs are required to rely on expert opinions
instead of determining the significance of particular medical findings themselves.”
Moon, 763 F.3d at 722 (citing Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 570
(7th Cir. 2003) (“[T]he ALJ seems to have succumbed to the temptation to play
doctor when she concluded that a good prognosis for speech and language
difficulties was in-consistent with a diagnosis of mental retardation because no
expert offered evidence to that effect here.”); Rohan v. Chater, 98 F.3d 966, 970 (7th

21

Cir. 1996) (“ALJs must not succumb to the temptation to play doctor and make their
own independent medical findings.”)); see also Schmidt v. Sullivan, 914 F.2d 117,
118 (7th Cir. 1990) (“But judges, including administrative law judges of the Social
Security Administration, must be careful not to succumb to the temptation to play
doctor. . . . Common sense can mislead; lay intuitions about medical phenomena are
often wrong.”). Without further explanation from Dr. Hsieh, the Court cannot
discount the possibility that her assessment of Warren’s physical limitations was
based on the level of pain reported to her by Warren rather than on the level of
swelling in Warren’s joints. 13
In addition, the ALJ should have conducted a further inquiry before
concluding that Dr. Hsieh’s previous references to Warren’s lupus being “mild” were
inconsistent with her functional capacity report. Warren suggests that Dr. Hsieh’s
use of the term “mild” was intended to mean only that her lupus-related symptoms
were not life-threatening, and that, while her symptoms might not be lifethreatening, that does not necessarily mean they were not disabling. See R. 12 at 8.
At the very least, Warren is correct that the ALJ should not have ascribed a
particular medical conclusion to Dr. Hsieh’s use in the medical notes of the term
Warren’s pain may or may not be tied to the physical findings noted by the ALJ.
See Martin v. Sullivan, 750 F. Supp. 964, 970 (S.D. Ind. 1990) (rejecting Appeal
Council’s finding that claimant’s testimony regarding his symptoms was
inconsistent with medical finding that claimant “had a full range of motion with no
swelling, erythema, or increased warmth in the joint area” on the ground that “the
ALJ’s own medical advisor” stated that “lupus is a medical impairment that results
from physical abnormalities reasonably expected to produce pain” and that “[l]upus
patients may develop joint pains . . . that are not accompanied by inflammatory
changes”).
13

22

“mild” without seeking an explanation from Dr. Hsieh about what she meant by her
use of that term and whether it was inconsistent with her functional assessment
findings. 14
In addition, the notations in the medical notes concerning Warren’s lupus
being “mild” represent only a “snapshot of [a] single moment,” which is of “little
value,” according to the Seventh Circuit, in assessing a condition like lupus “that
fluctuates over time.” Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011). Relying on
those notations without also taking into consideration other medical evidence
indicating that Warren’s lupus was more serious than perhaps the word “mild”
conveyed constitutes a “‘sound-bite’ approach to record evaluation,” which the
Seventh Circuit has deemed to be “an impermissible methodology for evaluating the
evidence” in social security cases. Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir.
2014); see also Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir. 2008) (“A person who has
a chronic disease . . . and is under continuous treatment for it with heavy drugs, is
likely to have better days and worse days; that is true of the plaintiff in this case.
Suppose that half the time she is well enough that she could work, and half the time
she is not. Then she could not hold down a full-time job.”); Roth v. Colvin, 2016 WL
890750, at *9 (N.D. Ill. Mar. 9, 2016) (“In reaching her conclusion, however, the ALJ
committed the same error the Seventh Circuit has so frequently warned against:
she focused solely on the reports of stability and ignored the many complaints of
persisting symptoms.”). Another example of the ALJ’s “sound bite” approach to the
14

See case citations in footnote 4, supra.
23

evidence is her citation (AR 41) to Dr. Tang’s comment in a note from April 2013,
which indicates that Dr. Tang suggested to Warren that she might want to consider
returning to work “given that her medical conditions seem relatively stable” (AR
661). This note was written before Dr. Tang’s medical notes from November 2013,
previously discussed (see footnote 11), which describe Warren’s worsening medical
condition. 15
That the ALJ took the sound-bite approach while ignoring the entire
chronology of Warren’s medical treatment as a whole is supported by the medical
The ALJ’s reference to Warren’s ankle issue clearing up is even another example
of the ALJ’s cherry-picking of specific examination findings. While citing to the fact
that the ankle problem had cleared up by the time Warren saw Dr. Hsieh in
December 2013, the ALJ ignores the further discussion in the medical records which
shows that the ankle pain had come on suddenly and that Warren had described the
pain as “hurt[ing] all the time, throb[bing], worse if [the] ankle is touched, cannot
put any pressure on the ankle, no known trauma or injury.” (AR 781) (11/26/13
medical report). The medical notes further state that Warren also “has back and
shoulder soreness/stiffness,” and “had no problems with [her] ankle prior to this.”
Id. The medical notes conclude that “an ankle joint effusion is likely,” and that
“underlying synovitis would be highly suspect.” (AR 782). In the latter medical note
where Dr. Hsieh comments that the ankle pain/swelling “has since largely resolved
on its own,” she also notes that it was “acute in onset” and “severe” and that Warren
“now has pain in her R shoulder blade, with radiation down her R arm,” with
“[s]trength . . . poor due to pain. Taking ibuprofen, which helps a bit. Feels her
balance is better, with no recent falls, but does have some unsteadiness at times.”
(AR 799) (12/2/13 medical note). The notes also indicate that while Warren’s
treating physicians were uncertain about the causes of her symptoms, they did not
seem to doubt Warren’s reports of their nature and severity. See, e.g., AR 800
(12/2/13 medical note) (“unclear if recent episodes of pain are related to her SLE. Of
note, her SLE markers are repeatedly relatively normal”). Not only do these medical
notes, when considered in their entirety, not support the ALJ’s suggestion that the
ankle problem was an insignificant issue, but they actually show the increasing
complexity of Warren’s medical condition, which overall appeared to be worsening
with symptoms of a fairly severe nature and an unknown or uncertain etiology
unpredictably appearing suddenly and then just as suddenly and unpredictably
resolving on their own.
15

24

records when viewed in their entirety. Those records show that, from 2012 through
about September 2013, Warren’s overall condition began to decline. For instance, in
March 2012, Warren told a medical resident that she had joint pain in her hands
and wrist, along with headaches and throbbing in her eye, that she was applying
medicine to her lesions daily and taking her Plaquenil, that she had a poor appetite
but her weight was up, that she “was fatigued ALL of the time,” that her “[m]ood is
terrible” and that “she sometimes wants to poke someone’s eyeballs out” because of
how “frustrated [she was] by this disease that makes [her] feel sick all of the time.”
(AR 529). Dr. Tang noted about this same time that Warren’s lupus seemed to be
getting progressively worse, despite the fact that her lab work “did not reflect
increased activity.” (AR 527). Dr. Laumann also commented that “[t]his woman may
need further systemic medication as she is feeling systemically miserable.” (AR
528). Recall that, from sometime in the beginning of 2012 through May 2012,
Warren was attempting to work part-time and was having difficulties doing that
while at the same time taking her medications. In April 2012, Dr. Tang opined that
Warren should not work full time (AR. 709), and in May 2012, Dr. Tang noted that
Warren felt better since being let go at work (AR 516).
Despite stopping work, however, Warren continued to experience worsening
symptoms. In July 2012, Dr. Dolan treated Warren for headaches, and also
recommended wrist supports. (AR. 509). In August 2012, Warren had mild to
moderate synovitis in the right finger joints with tenderness to palpation, and
positive Tinel and Phalen’s signs at the right wrist. (AR 30). Dr. Hsieh gave her an

25

injection for pain (AR 503), and again noted optimistically that if she took her
Plaquenil regularly, her symptoms should improve and the frequency of future flare
ups of her SLE should decrease (AR 490). Warren continued with her treatment
throughout the beginning part of 2013, seemed to be doing better for a time, and, in
April 2013, Dr. Tang suggested that she might want to consider returning to work
(AR 661).
About three months later, however, on July 1, 2013, Dr. Tang noted that
Warren was “express[ing] frustration” that “she does not feel any better” despite
“being adherent with medications for lupus and depression.” (AR 638; see also AR
639 (SLE “more active lately with increase arthralgias in hands”)). In September
2013, Dr. Hsieh again notes that Warren’s lupus was “mild,” although Warren was
experiencing a flare up of symptoms. She gave Warren another injection, and in
October 2013, Warren started taking methotrexate, considered a “high risk”
medication. 16 In November 2013, Dr. Tang ordered a brain MRI to assess balance
problems. (AR. 768). Also in November 2013, Warren was treated for left ankle
pain, with x-rays showing effusion and likely underlying synovitis. (AR 781-82,
833). In December 2013, Dr. Laumann recommended increasing the dosage of
Warren’s methotrexate given her recurrent swollen, tender, and painful joints. (AR
792). Also in December 2013, Dr. Tang treated Warren for right shoulder pain,
noting her depression compounded pain management. (AR 799-801). On December
16

See https://www.nlm.nih.gov/medlineplus/druginfo/meds/a682019.html (last visited 1/3/2017).
(methotrexate “may cause very serious, life-threatening side effects. You should only take
methotrexate to treat cancer or certain other conditions that are very severe and that cannot be
treated with other medications.”).
26

20, 2013, Dr. Hsieh summed up Warren’s treatment for these varied medical issues
over the past few months, yet she again referred to Warren’s SLE as being “mild.”
(AR 808). At the same time, she prepared a functional assessment report noting a
fifty percent reduction in capacity. She also indicated that she anticipated that
Warren’s disability would be short-term. (AR 813-814 (noting that “disability should
be temporary once her medications are optimized and her joint pain is under
control”)).
This medical record, when viewed as a whole, does not so much show an
inconsistency between Dr. Hsieh’s functional assessment and her medical notes as
it does an ambiguity over Dr. Hsieh’s continued optimistic belief that she would be
able to control Warren’s lupus symptoms with medication, Thus, in rejecting
Dr. Hsieh’s functional assessment report on the conclusory basis that it was
inconsistent with her previous medical notes, the ALJ failed to address the real
issue here, which is whether Warren’s lupus symptoms are able to be, or have been,
controlled to the degree and level of certainty and on-going stability that Dr. Hsieh
seemed to be predicting, in which case it would be reasonable to conclude that Dr.
Hsieh’s functional assessment in December 2013 was indeed only a temporary and
short-term analysis of Warren’s abilities at that time. To justify a finding against
Warren on that issue, the ALJ should have sought clarification from Dr. Hsieh
concerning the basis for the functional limitations she reported in December 2013,
how long she expected Warren’s limitations to last, the progress and prognosis for
Warren’s treatment, and the degree of certainty she had regarding her prediction

27

that ultimately Warren’s symptoms would be under control. By not discussing
Warren’s worsening medical condition in the six months prior to the hearing and by
not seeking further insight into Dr. Hsieh’s views regarding that situation, the ALJ
failed to “build an accurate and logical bridge from the evidence to [the ALJ’s]
conclusion” that Dr. Hsieh’s functional capacity report was not entitled to any
significant degree of weight in the ALJ’s assessment of Warren’s residual functional
capacity. Beardsley, 758 F.3d at 837.
C.

THE ALJ’S FAILURE TO SUPPORT HER RFC
FINDINGS

AND

CREDIBILITY

Even if the ALJ’s rejection of the opinions of Dr. Tang and Dr. Hsieh were
upheld under this Court’s substantial evidence review, that would not save the
ALJ’s ultimate finding that Warren was not disabled. At the end of the day, the
“gaping hole in the record,” Allensworth, 814 F.3d at 835, “is the absence of any
evidence” to support the ALJ’s RFC finding that Warren can “lift and/or carry up to
twenty pound occasionally and up to ten pounds frequently,” can “sit, stand and/or
walk throughout a normal workday, with typical breaks,” and can “occasionally
climb ramps or stairs, stoop, kneel, or crouch.” (AR 41). “Although the [ALJ]
concluded that [Warren] can perform light work for 40 hours a week, she did not
indicate what evidence supported that conclusion—a fatal error.” Allensworth, 814
F.3d at 835 (citing Briscoe, 425 F.3d at 352 (The ALJ’s failure to properly explain
how he arrived at a residual functional capacity determination “is sufficient to
warrant reversal of the ALJ’s decision.”); accord Eakin v. Astrue, 432 Fed. App’x
607, 611 (7th Cir. June 30, 2011) (“The RFC determination should include a
28

discussion describing how the evidence, both objective and subjective, supports the
ultimate conclusion. Social Security Ruling 96–8p instructs ALJ’s to assess a
claimant’s work-related abilities on a function-by-function basis, and although the
ALJ need not discuss every piece of evidence, she must still articulate, at some
minimum level, her analysis of the evidence.”) (internal quotation marks and
citations omitted).
By rejecting Dr. Hsieh’s functional capacity assessment, the ALJ created an
evidentiary deficit. See Suide v. Astrue, 371 Fed. App’x 684, 690 (7th Cir. 2010)
(“Even assuming that Dr. Orris’s opinions did not deserve greater weight, it is the
evidentiary deficit left by the ALJ’s rejection of his reports—not the decision itself—
that is troubling.”). The ALJ did not obtain evidence to fill this void. In particular,
the ALJ did not explain how she determined that Warren could perform the lifting
and carrying requirements of light work despite her lupus symptoms. The only
medical evidence in the record, other than the treating physicians’ opinions that the
ALJ rejected, was the pre-onset date opinions of the consulting physicians, to whom
the ALJ accorded “some weight.” (AR 39). But the ALJ did not explain the
evidentiary basis for her conclusion that the consulting examining physician’s RFC
opinion that, as of February 17, 2012, Warren could perform work at a medium
exertional level could simply be adjusted downward without any further physical
examination of Warren to provide support for the ALJ’s conclusion that, as of the
date of her decision on May 30, 2014, Warren was capable of performing “a wide
range of light work” (AR 39). See Strong v. Barnhart, 2002 WL 31415714, at *7

29

(N.D. Ill. Oct. 23, 2002) (“We agree with plaintiff that her RFC before the onset date
is unimportant and irrelevant to whether she was disabled after that date. Thus,
the ALJ’s reliance on this assessment is misplaced. When we eliminate the
assessment by the state medical examiners, we are left without evidence that would
support the ALJ’s conclusion that Strong was limited to perform all aspects of
medium work.”); see also Stage v. Colvin, 812 F.3d 1121, 1125 (7th Cir. 2016) (ALJ
erred in evaluating “new, and potentially decisive” medical evidence that came into
the record after the consulting physicians’ opinions to determine claimant’s
functional limitations rather than seeking expert medical opinion where the new
evidence could “reasonably change” the previous functional opinion); Harlin v.
Astrue, 424 Fed. App’x 564, 568 (7th Cir. 2011) (“To the extent that the ALJ
projected how Dr. Rozenfeld’s would have testified had she seen the additional
documents, the ALJ improperly assumed the role of doctor.”). Indeed, there is no
evidence in the consulting examiner’s report that he “even tested [Warren’s] ability
to lift heavy objects, so the ALJ could not legitimately have relied on that
examination to conclude that [Warren] can occasionally lift 20 pounds.” Scott v.
Astrue, 647 F.3d 734, 740 (7th Cir. 2011). The medical evidence regarding Warren’s
mild abnormalities in her muscular skeletal system also does not support the ALJ’s
RFC findings. This evidence at most means that Warren “could lift and carry
things: but what things [s]he could lift, how large, how heavy, for how long—none of
this was explored.” Garcia, 741 F.3d at 762. While it is true that Warren “bears the
burden of producing evidence of her impairments, . . . she did produce evidence in

30

the form of her own testimony as well as [the functional assessment report of Dr.
Hsieh]. If the ALJ found this evidence insufficient, it was her responsibility to
recognize the need for additional medical evaluations.” Scott, 647 F.3d at 741.
There are a number of other conclusions the ALJ reached in making her RFC
assessment that also are not supported by substantial evidence, such as the ALJ’s
failure to support her conclusion that Warren’s fatigue would preclude only a small
portion of jobs in the light work category (AR 41), as well as her conclusion that
Warren’s well documented treatment for depression did not limit her capacity for
light work in any meaningful way. The Court will not go into each of these issues in
any detail other than to note that it substantially agrees with Warren’s assessment
of the ALJ’s treatment of them. See R. 12 at 11-13; R. 18 at 9-11. In addition, the
Court substantially agrees with Warren’s arguments regarding errors in the ALJ’s
credibility determination, see R. 12 at 14-16; R. 18 at 11-12, and specifically rejects
the ALJ’s findings (1) that Warren had “significant gaps in treatment, [which] are
not explained by her reports of difficulty obtaining medical insurance or paying for
it,” (2) that she “could not explain credibly her failure to continue and [sic] mental
health treatment with Dr. Dinwiddie during 2012,” (3) that she “exaggerate[d]
somewhat the diagnostic evidence in the record” such as the findings of her brain
MRI, (4) that she “minimized her alcohol use,” and (5) that she “misrepresented the
events of January 22, 2014, stating that Northwestern refused to admit her.” (AR
40). The Court’s review of the record reveals that none of these findings regarding
Warren’s credibility are substantially supported by the evidence.

31

CONCLUSION
The ALJ’s improper assessment of the medical opinions of Warren’s treating
physicians, her failure to adequately support her RFC determination, and her
unsubstantiated credibility determinations require the Court to vacate the
Commissioner’s final decision denying Warren’s application for social security
disability benefits. Accordingly, the Commissioner’s motion for summary judgment,
R. 16, is denied, the ALJ’s decision is vacated, and the case is remanded to the
Social Security Administration for further proceedings consistent with this decision.
ENTERED:
___

Dated: January 4, 2017

32

Honorable Thomas M. Durkin
United States District Judge