Borgo v. Colvin

Filing 27

MEMORANDUM Opinion and Order Signed by the Honorable Michael T. Mason on 7/25/2017.(rbf, )

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

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No. 16 C 2072
Honorable Michael T. Mason

Memorandum Opinion and Order
MICHAEL T. MASON, United States Magistrate Judge:
Claimant Roger S. Borgo (“Claimant”) brings this motion for summary judgment
[12] seeking judicial review of the final decision of the Commissioner of Social Security
(“Commissioner”). The Commissioner denied Claimant's claim for disability insurance
benefits under §§ 416(i) and 423(d) of the Social Security Act (the “SSA”). The
Commissioner filed a cross-motion for summary judgment [19], requesting that this
Court uphold the decision of the Commissioner. This Court has jurisdiction to hear this
matter pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, Claimant’s
motion for summary judgment is granted, and the Commissioner’s cross-motion is
denied.
I. BACKGROUND
A. Procedural History

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Nancy A. Berryhill is substituted for her predecessor, Carolyn W. Colvin, pursuant to Federal Rule of
Civil Procedure 25(d).

On April 27, 2012, Claimant filed an application for a period of disability and
Disability Insurance Benefits (“DIB”), alleging an onset of disability of March 29, 2007.
(R. 18.) His date last insured was March 31, 2013. (R. 19.) The Social Security
Administration initially denied his claim on July 13, 2012, and upon reconsideration on
March 18, 2013. (R. 18.) Claimant filed a timely request for a hearing on April 22,
2013. (Id.) On June 2, 2014, Claimant appeared with counsel before Administrative
Law Judge (“the ALJ”) David R. Bruce. (R. 18, 29.) On September 10, 2014, the ALJ
issued a written decision denying Claimant’s request for benefits. (R. 18-28.) Claimant
filed a timely request for review; and the Appeals Council denied this request on
December 11, 2015, which made the ALJ’s decision the final decision of the
Commissioner. (R. 1-3, 7-8); 20 C.F.R. § 416.1481; Zurawski v. Halter, 245 F.3d 881,
883 (7th Cir. 2001). Claimant subsequently filed this action in the District Court.
B. Medical Evidence
Claimant seeks DIB for disabling conditions stemming from sarcoidosis, asthma,
chronic diarrhea, allergic rhinitis, disorders of lipoid metabolism, mild cardiomegaly,
kyphosis of the thoracic spine, and a thyroid disorder. (R. 21.)
1. Treating Physicians
Claimant’s medical records date back to April of 2007, when he was treated at
Loyola University Medical Center (“Loyola”). (R. 254.) Claimant was seen in the
emergency room on April 3, 2007, at which time the physician noted that he had
multiple bruises and swelling on his lower legs. (Id.) Claimant informed the physician
that he was seen by an immediate care center four days previously and was told that he
had spots on his lung. (Id.) Claimant also told the physician that he had been feeling

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fatigued and had experienced intermittent diarrhea and shortness of breath over the
past year. (R. 254, 257.) The physician performed a chest radiograph on Claimant and
determined that he had a possible nodule on his lung as well as multiple enlarged lymph
nodes. (R. 262-63.) He was discharged the same day. (R. 258.)
Claimant returned to Loyola on April 10, 2007, and was seen by Dr. Michael Gill.
(R. 269.) He informed Dr. Gill that he was in good health until the end of March. (R.
267.) Dr. Gill noted his suspicions that Claimant might have sarcoidosis rather than a
neoplastic process. (Id.) At an initial pulmonary consultation on April 11, 2007,
Claimant said that he had not felt like himself for the past year, but that his problems
have increased over the past few weeks. (R. 272.) The physician agreed that Claimant
had dyspnea and mediastinal lymphadenopathy, and stated that he suspected Lofgren’s
syndrome due to Claimant’s sarcoidosis. (R. 274.) Claimant was started on
Prednisone. (Id.)
On May 23, 2007, Claimant returned to Loyola for a pulmonary follow-up
regarding his sarcoidosis. (R. 277.) He informed Dr. Daniel Dilling that he felt better
overall, had more energy, and that the diarrhea had improved. (Id.) Claimant’s bruising
was gone, and he appeared better since starting the Prednisone. (Id.)
Claimant went to the Loyola emergency room on June 4, 2007, complaining of
difficulty breathing, increased pain on the right side of his face, blisters on the tongue
and chin, and neck swelling. (R. 283-84.) He had an otolaryngology consultation, and
the consult assessed an “apparent zoster of right V3 distribution.” (R. 287-88.)
Claimant was discharged the same day. (R. 289.) On July 11, 2007, Claimant returned
to Loyola for a pulmonary consultation. (R. 291.) Dr. Dilling noted that Claimant’s

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trigeminal zoster had improved and that Claimant’s chest x-ray showed a vast
improvement in his adenopathy as compared with April 2007. (R. 291-92.) Dr. Dilling
also documented that Claimant’s symptoms had improved, but he was still breathless,
experiencing depressive symptoms, and had diarrhea. (Id.) Dr. Dilling further
commented that Claimant’s symptoms, the zoster, and depression created reason to
suspect Claimant was not tolerating therapy. (R. 294.) Dr. Dilling recommended a
tapering off of Prednisone over three weeks. (Id.)
On August 28, 2007, Claimant saw Dr. Gill at Loyola. (R. 298.) Dr. Gill noted
that the Prednisone had been tapered off about a month ago and that the sarcoidosis
has responded well, but that Claimant complained of other symptoms such as diarrhea,
fatigue, and joint pain. (Id.) Claimant was next seen by Dr. Gill on September 11, 2007.
(R. 303.) According to Dr. Gill, Claimant continued to be fatigued and experienced the
same symptoms he did when he first presented with erythema nodosum and the
pulmonary sarcoidosis was identified. (Id.) Dr. Gill reported being suspicious of the
extra-pulmonary sarcoid symptoms and wondered if a low dose of Prednisone would
clear up the symptoms. (R. 304.) Dr. Gill documented that Claimant had a pulmonary
appointment the following week, and if his conditions worsened, he would recommend
going back on Prednisone. (Id.)
On October 15, 2007, Claimant saw Dr. Dilling for a pulmonary consultation, and
Dr. Dilling reported that Claimant’s energy was better, but not normal. (R. 306.)
Additionally, Dr. Dilling noted that Claimant’s lungs were “grossly clear.” (R. 307.)
Claimant was next seen by Loyola medical staff on September 23, 2008. (R. 312.)
During that visit, the treating physician noted that Claimant has become more fatigued

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over the past six months and had increased joint and eye pain. (Id.) The physician
observed that Claimant acted depressed and admitted to depression because of his
health issues. (Id.) Claimant was prescribed Lexapro for his symptoms. (R. 314.)
The next visit in Claimant’s records was on September 28, 2012, when Claimant
was seen by Dr. Titilayo Abiona at Oak Forest Hospital. (R. 342.) Claimant informed
Dr. Abiona that he was experiencing pain of the lower left quadrant as well as chronic
lower back pain and bilateral lower extremity pain. (Id.) Additionally, Claimant informed
Dr. Abiona that he experienced a tightening of his chest and pain when he cut his lawn
and was experiencing diarrhea. (Id.) He reported taking Tylenol or Aspirin for relief.
(Id.) A creatinine kinase was ordered, and a colonoscopy was scheduled for December
12, 2012. (R. 344.)
On October 2, 2012, Claimant was again seen by Dr. Abiona at Oak Forest
Hospital. (R. 333.) A chest exam revealed kyphosis of the thoracic spine. (Id.) Dr.
Abiona also stated that Claimant possibly had an enlarged liver with a fatty infiltration,
as well as a mild cardiomegaly and mild peripheral pulmonary congestion, and he
recommended a follow-up and clinical evaluation. (Id.) Additionally, a one-cm size soft
tissue nodule was noted on a chest x-ray, and further evaluation with a CT scan of the
chest was advised. (Id.) A Doppler Arterial study of Claimant’s legs was performed on
October 10, 2012, and the study returned normal results. (R. 434.) Claimant was seen
for a follow-up visit with Dr. Abiona on November 30, 2012. (R. 336.) Dr. Abiona noted
that Claimant was experiencing stomach pain and diarrhea. (Id.) Upon discharge, the
plan was to have a pulmonology consultation and a colonoscopy. (R. 340.)

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Claimant was again seen at Oak Forest Hospital on January 24, 2013, at which
time the treating physician again noted that Claimant possibly had an enlarged liver with
a fatty infiltration. (R. 329.) Claimant had a January 30, 2013 pulmonary outpatient visit
with Dr. Patricia Macias and reported that he self-discontinued his Prednisone in 2007
because of side effects and that he had not been on any medications since then. (R.
346.) Claimant informed Dr. Macias that his respiratory symptoms never improved and
that he had generalized pain and sinus problems. (Id.) He also reported that he lost his
medical insurance. (Id.) Dr. Macias prescribed several medications, including
Prednisone, and recommended pulmonary rehabilitation. (R. 348.)
On March 27, 2013, Claimant had a follow-up visit with Dr. Macias. (R. 420.) He
explained that the steroids he was on were not working and that he had been
experiencing severe chest pain. (Id.) Claimant’s wife expressed her disagreement
about the test results and medications, but Dr. Macias reassured her and asked her to
allow Claimant to take the medications as prescribed. (Id.) A CT scan was ordered.
(Id.)
Claimant saw Dr. Abiona on April 12, 2013, and informed him that he had been
experiencing fatigue, chest pain, low back pain, and that he wanted his kidneys
evaluated. (R. 408.) Dr. Abiona stated that Claimant had undergone numerous tests,
including a colonoscopy, all with normal results, but that Claimant and his wife were not
satisfied with those tests. (Id.) Dr. Abiona was also informed that Claimant had not
been using the medications that he was prescribed. (Id.) A lumbar spine Comp AP
showed early osteoarthritis, but no acute changes or fracture. (R. 396.)

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On April 17, 2013, Claimant saw Dr. Macias for a pulmonary outpatient visit. (R.
416.) Dr. Macias noted that the CT of his chest was normal. (Id.) She also
documented that Claimant was uninterested in going to physical therapy to improve his
pain and that he felt he should be resting instead of working in physical therapy. (Id.)
Notably, Dr. Macias stated that she found it “very difficult to believe that all the
symptoms [Claimant] has are secondary to sarcoidosis. . . since he is not improving with
the appropriate therapy and all the testings are normal.” (Id.) She opined that Claimant
might benefit from anxiety therapy. (Id.)
Claimant saw the Lung Heath Educator in Oak Forest on April 17, 2013, and
demonstrated improved spacer technique post-encounter. (R. 414.) On April 30, 2013,
Claimant had a CT scan, which showed no abnormalities of the lungs, no enlargement
of the liver, and was overall a normal CT of the abdomen and pelvis. (R. 405.)
Claimant saw Dr. Abiona on May 1, 2013 and had continued complaints of shortness of
breath, fatigue, and occasion left-sided chest pain. (R. 401.) He was instructed to
follow up in four months. (R. 407.)
On July 17, 2013, Claimant presented for a pulmonary follow-up visit with Dr.
Macias and completed a ventilation scan with normal perfusion. (R. 392.) Dr. Macias
noted that although Claimant was referred to pulmonary rehabilitation, he declined to
continue with therapy. (Id.) She, again, stated that Claimant’s symptoms were out of
proportion to the physical findings and that he was not responding to any treatment. (R.
393.) Dr. Macias questioned whether Claimant had a component of depression. (Id.)
Claimant had an ophthalmology outpatient follow-up on August 7, 2013, at which time
he showed no signs of uveitis. (R. 390.)

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On August 21, 2013, Claimant was again seen at Oak Forest Hospital by Dr.
Abiona, who stated that all of Claimant’s tests had come back normal. (R. 372.)
Claimant next saw Dr. Abiona on October 30, 2013, and the doctor remarked that
Claimant’s symptoms remained largely unchanged and that he had additional
complaints of leg cramps and bloating. (R. 366.) Dr. Abiona recommended Claimant
seek a second opinion regarding sarcoidosis at the University of Illinois Chicago
Hospital (“UIC”), but Claimant declined. (Id.) Claimant started medication for
hypothyroidism and was given medication to take as needed for his lower back pain.
(R. 366, 370.)
On January 15, 2014, Claimant presented for a pulmonary outpatient follow-up to
Dr. Macias and stated that he had the same chronic symptoms and felt about the same.
(R. 379.) He finished a course of Prednisone a month prior and reported no
improvement in his symptoms. (Id.) He declined pulmonary rehabilitation because he
felt too weak to do the exercises, and he also stated that he wanted to think about
getting a second opinion at the sarcoidosis clinic at UIC before agreeing. (Id.) Dr.
Macias ordered a follow-up visit in six months and noted that Prednisone and
Methotrexate did not appear to improve his symptoms. (R. 381.)
Claimant saw Dr. Abiona on February 7, 2014 and reported that his symptoms
were mainly unchanged. (R. 360.) Dr. Abiona again recommended Claimant get a
second opinion regarding sarcoidosis at UIC, and Claimant responded that he was
leaning towards doing so. (Id.) With respect to Claimant’s chronic diarrhea, Dr. Abiona
noted that Claimant’s colonoscopy was negative, and he was referred to a
gastrointestinal (“GI”) specialist. (R. 364.) On March 10, 2014, during a GI outpatient

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visit, Dr. Satya Mishra diagnosed Claimant with chronic diarrhea. (R. 387.) On April 4,
2014, a gastrointestinal study was performed on Claimant. (R. 357.) Mild degenerative
arthritis and spurs in the lumbar spine were noted, as well as a slight irregularity in
Claimant’s colon. (Id.)
On May 20, 2014, Claimant saw Dr. Nadera Sweiss, a specialist in the area of
sarcoidosis, at UIC. (R. 442.) She discussed his employment background, specifically
his exposure to dust and aspartame while working for a food company. (Id.) Dr. Sweiss
noted that Claimant was diagnosed with sarcoidosis in March 2007, and he stopped
working at that time. (Id.) Claimant had been on and off Prednisone for sarcoidosis
since 2007, and the medication created other problems, including leg pain, dizziness,
burning, anger issues, etc. (R. 442-43.) Dr. Sweiss determined that Claimant was
affected by sarcoidosis, his history of steroid use, and shortness of breath, and that
medical staff would restage the disease to decide if there was a need for steroids or
steroid-sparing therapy. (Id.)
2. Agency Consultants
Dr. Mahesh Shah conducted an internal medicine consultative examination of
Claimant’s case for the Bureau of Disability Determination Services on June 27, 2012.
(R. 321.) Dr. Shah noted that he spent about 35 minutes completing the evaluation,
which included reviewing the previous reports, taking history, examining Claimant, and
dictating his report. (Id.) Dr. Shah concluded that Claimant does have pulmonary
sarcoidosis, but does not have any symptoms from the lungs. (R. 324.) According to
Dr. Shah, Claimant’s cramping in his abdomen and diarrhea could be due to
involvement of the bowels with sarcoidosis. (Id.) Finally, Dr. Shah stated that

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Claimant’s cramping in his legs and feet could be related to muscle involvement with
sarcoidosis, but that his circulation and nerve tests were normal. (Id.)
On July 12, 2012, Dr. Reynaldo Gotanco conducted a consultative examination.
(R. 86.) Dr. Gotanco noted that Claimant’s medical evidence reports pulmonary
sarcoidosis, but that Claimant did not have any symptoms from his lungs. (Id.)
According to Dr. Gotanco, cramping in the abdomen and diarrhea that could be due to
involvement of the bowels with sarcoidosis, and cramping in the legs and feet could be
related to muscle involvement with sarcoidosis. (Id.) Dr. Gotanco opined that Claimant
had the following medically determinable impairments: sarcoidosis and “other disorders
of gastrointestinal system,” but that the impairments did not significantly limit his
physical or mental ability to do basic work activities. (R. 87.) Further, Dr. Gotanco
found that Claimant was partially credible, in part citing to the fact that he complained of
shortness of breath but that the objective medical evidence noted good breath sounds
bilaterally. (Id.)
On March 15, 2013, Dr. Phillip Galle conducted a third consultative examination
at the reconsideration level. (R. 90.) Dr. Galle stated that while the evidence indicates
sarcoidosis, Claimant does not have any symptoms in his lungs and his circulation and
nerve tests were normal. (R. 93.) Dr. Galle further noted that cramping in the abdomen
and diarrhea could be due to involvement of the bowels with sarcoidosis. (Id.) He
found that Claimant’s impairments did not significantly limit his physical or mental ability
to do basic work activities. (Id.) As a result, Dr. Galle concluded that the evidence as a
whole, both medical and non-medical, do not support a decision that Claimant is

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disabled. (R. 92, 94.) No Residual Functional Capacity (“RFC”) assessments were
noted to be associated with the claim. (R. 94.)
C. Claimant’s Testimony
Claimant testified before the ALJ on June 2, 2014. (R. 33.) He was 55 years old
at the time of the hearing. (R. 84.) He testified that he last worked as a truck driver
back in 2007, but that he waited until 2012 to apply for benefits because he was hoping
to get better and return to work. (R. 39.) However, he never recovered. (Id.) Claimant
previously worked a factory job for twenty years at Kraft Foods mixing batches of
Crystal Light product, which had aspartame in it. (R. 42.) The factory was a very dusty
environment, and Claimant thought that may have started the sarcoidosis, but he did
not know for sure. (R. 42-43.)
While working for Kraft, Claimant lifted one hundred-pound bags and was on his
feet at least six hours a day. (R. 43.) However, he explained that he stopped being
able to do that and switched roles to running a case packer, which required him to put
cases into a machine. (Id.) According to Claimant, this job was a lot easier and he
never had to carry over twenty pounds. (R. 44.) Moreover, he sat for more than half of
the work day. (R. 44-45.)
Claimant testified that his position running a case packer was his last job at Kraft
before he left. (R. 45.) After Kraft, Claimant was a truck driver for almost three years at
Eagle Express Lines doing short hauls. (R. 42, 45.) This job required Claimant to crank
trailer jacks up, pull canvases, etc. (R. 46.) Claimant stated that he never lifted more
than fifty pounds. (Id.) He then remarked that during his second year working this job,
his diarrhea became a problem. (R. 46-47.) He became concerned that he would not

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make it in time to a bathroom when he was driving. (R. 47.) The diarrhea became so
bad that Claimant stopped eating as much or would not eat until he got home. (Id.)
Claimant stopped working at the end of March 2007. (Id.) A couple of weeks
prior to stopping work, Claimant testified that he began having pain in his feet and legs,
cramping in his legs, and trouble walking. (Id.) Claimant remarked that he could barely
walk and eventually began to have difficulty even standing. (R. 47-48.) His legs were
black and blue. (R. 48.) He went to a clinic, where he had x-rays of his lungs, which
revealed spots on his lungs, and the doctor informed Claimant that she thought he had
sarcoidosis. (Id.)
He explained that he was not treated anywhere other than Loyola in the
beginning because there was not much that could be done for his condition. (R. 39.)
He was put on Prednisone off and on at various times because that was all the doctors
could do, but he was not on it at the time of his testimony. (R. 39-40.) Claimant
explained that he is currently seeing a lung specialist at Oak Forest Hospital, as well as
a gastrointestinal doctor, and a doctor at UIC. (R. 49.) He testified that he is currently
on a thyroid medication and arthritis medication; however, the medications are not
working. (R. 49-50.)
Claimant noted that he also has sinus headaches and takes over-the-counter
medication. (R. 53-54.) Additionally, he sees an eye doctor, as his doctors think there
might be sarcoidosis in his eyes. (R. 54.) Claimant stated that he has problems
sleeping because of his legs and shortness of breath. (Id.) Claimant commented that
the last doctor he saw stated that the problems he has been having with his stomach

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are likely related to sarcoidosis and that nothing regarding the cramping has shown up
in the blood work. (R. 56.)
Claimant testified that he lives with his wife and also lived with his wife’s uncle for
some time. (R. 41.) He explained that his wife’s uncle was disabled, and he was
informed that he could receive some money for taking care of the uncle, mainly by
making his meals. (Id.) Claimant stated that he only made a few hundred dollars a year
making meals, and that was the only employment he had until the uncle passed away.
(R. 41-42.)
Claimant prefers cold weather because humid and hot air causes difficulties
breathing. (R. 51.) He further explained that he has chronic pain in his feet and legs
and cramping in his legs that never goes away. (Id.) The pain becomes greater the
more he walks or if he sits for long periods of time. (R. 52.) The only way to relieve the
pain is by lying on the couch and putting his legs up. (Id.) Claimant stated that the
longest he can sit for any one time is about an hour or two. (Id.) He does not like to be
on his legs for more than an hour. (R. 53.) He occasionally goes grocery shopping at
smaller stores and will put the items away before needing to lie down. (Id.)
Claimant remarked that he can walk around the block, but by the end, his legs
will cramp up. (R. 53.) The greatest weight he feels comfortable carrying is a gallon of
milk. (Id.) He testified that he washes dishes, pays bills, and throws out the trash. (R.
54-55.) He will mow the grass when it is cooler outside because he has a small lawn;
however, he gets sweaty and has to sit down for a while. (R. 55.) He also testified that
he does not have problems caring for himself, and he will sometimes sit in his yard to

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read, but he does not do much for fun. (Id.) He cannot exercise because he will just
feel worse. (R. 56.)
The questioning then turned back to Claimant’s stomach problems. Claimant
stated that on a bad day, he would urgently have to get to the restroom between three
and six times. (R. 56-57.) Claimant also stated that he gets fatigued easily and that in
general, some days are worse for him than others. (R. 57.) He can get up in the
morning with his wife on certain days, but he cannot get out of bed other days. (R. 5758.) He will not eat before going out in case he needs to use the bathroom urgently.
(R. 58.) The hearing concluded with Claimant stating to the ALJ that he is depressed,
but that it is his illness that is bringing the depression. (R. 67.)
D. Vocational Expert’s Testimony
Vocational Expert Jacqueline Bethell (“the VE”) testified at the June 2, 2014
hearing. (R. 59.) The VE classified Claimant’s job at Kraft as a dry food products mixer
and, according to the Dictionary of Occupational Title (“DOT”), that work is semi-skilled
and heavy exertion. (R. 60.) Next, she classified Claimant’s past position as a packing
machine operator as unskilled and medium exertion. (Id.) The VE opined that
Claimant’s work as a truck driver was semi-skilled and medium exertion. (R. 60-61.)
The ALJ asked the VE to assume a hypothetical individual with the past jobs she
just described that is limited to light work as defined in the regulations. (R. 61.) The
ALJ added additional restrictions of no concentrated exposure to humidity and wetness;
atmospheric conditions like dust, fumes, odors and gases or weather (outside in both
the heat and cold); and extremes of cold and/or heat, such as freezers and blast
furnaces. (Id.) Additionally, the ALJ stated there would be no climbing ladders, ropes

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and scaffolding; and balancing, stooping, kneeling, crouching and crawling would be
occasionally, which is defined as zero to one-third of the working day. (R. 62.) The ALJ
then asked if, given those limitations, whether such a hypothetical individual could
perform any of the past jobs that the VE described. (Id.)
The VE responded that such an individual would not be able to perform
Claimant’s past work. (Id.) The ALJ then asked the VE whether in her opinion, there
would be any other work available for such an individual. (Id.) She responded in the
affirmative and explained that such an individual would be able to work as a counter
clerk of which there are approximately 2,600 positions in the state of Illinois and 72,000
positions in the nation. (Id.) Moreover, such an individual would be able to work as a
marker/labeler. (Id.) There are 2,000 positions in the state of Illinois and 35,000
positions in the nation. (R. 63.) Finally, such an individual would be able to work as a
call-out clerk. (Id.) There are 2,900 positions in the state of Illinois and 64,600 positions
in the nation. (Id.)
The ALJ then asked the VE to reduce the exertion level down to sedentary work,
but have everything else remain the same from the first hypothetical. (Id.) The ALJ
asked if there would be any past work for such a hypothetical person. (Id.) The VE
responded in the negative. (Id.) The ALJ then asked if there would be any other
occupations available for such a hypothetical person. (Id.) The VE stated that there
would be; specifically, such an individual could work as a document preparer. (R. 64.)
There are 11,100 positions in Illinois and 242,000 positions in the nation. (Id.)
Moreover, such an individual could work as a circuit board assembler, of which there
are 7,000 positions in Illinois and 154,100 positions in the nation. (Id.)

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The ALJ then added an additional limitation of five additional times off task, in
addition to breaks and lunch, of fifteen minutes duration. (R. 64-65.) The VE stated
that the off-task tolerances would rule out work for such an individual altogether. (Id.)
II. LEGAL ANALYSIS
A. Standard of Review
This Court will affirm the ALJ’s decision if it is supported by substantial evidence
and free from legal error. 42 U.S.C. § 405(g); Steele v. Barnhart, 290 F.3d 936, 940
(7th Cir. 2002); Stepp v. Colvin, 795 F.3d 711, 718 (7th Cir. 2015); Sims v. Barnhart,
309 F.3d 424, 428 (7th Cir. 2002). Substantial evidence is more than a scintilla of
evidence; it is “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Diaz, 55 F.3d 300, 305 (7th Cir. 1995) (quoting Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). We must consider
the entire administrative record, but will not “re-weigh evidence, resolve conflicts, decide
questions of credibility, or substitute our own judgment for that of the Commissioner.”
Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003) (citing Clifford v. Apfel, 227 F.3d
863, 869 (7th Cir. 2000)); McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011). This
Court will “conduct a critical review of the evidence” and will not let the Commissioner’s
decision stand “if it lacks evidentiary support or an adequate discussion of the issues.”
Lopez, 336 F.3d at 539 (quoting Steele, 290 F.3d at 940).
In addition, while the ALJ “is not required to address every piece of evidence,” he
“must build an accurate and logical bridge from the evidence to [his] conclusion.”
Clifford, 227 F.3d at 872. At a minimum, the ALJ must “sufficiently articulate [his]
assessment of the evidence to assure us that the ALJ considered the important

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evidence ... [and to enable] us to trace the path of the ALJ’s reasoning.” Carlson v.
Shalala, 999 F.2d 180, 181 (7th Cir. 1993) (per curiam) (quoting Stephens v. Heckler,
766 F.2d 284, 287 (7th Cir. 1985)).
B. Analysis under the Social Security Act
In order to qualify for disability insurance benefits or supplemental security
income, a claimant must be “disabled” under the Social Security Act (the “Act”). A
person is disabled under the Act if “he or she has an inability to engage in any
substantial gainful activity by reason of a medically determinable physical or mental
impairment which can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 423(d)(1)(A). In determining whether a claimant is disabled, the
ALJ must consider the following 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 he can perform
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). The
claimant has the burden of establishing a disability at steps one through four. Zurawski,
245 F.3d at 885–86. If the claimant reaches step five, the burden then shifts to the
Commissioner to show that “the claimant is capable of performing work in the national
economy.” Id. at 886.
The ALJ followed this five-step analysis. At step one, the ALJ found that
Claimant was not engaged in substantial gainful activity and had not been engaged in
substantial gainful activity during the period from his alleged onset day of March 29,

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2007, through his date last insured of March 31, 2013. (R. 20.) At step two, the ALJ
found that Claimant had the following severe impairments: sarcoidosis and asthma. (R.
21.) 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 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 22.) At step four,
the ALJ found that Claimant had the residual functional capacity (“RFC”) to lift and/or
carry twenty pounds occasionally, and ten pounds frequently; stand and/or walk about
six hours in an eight-hour work day; and sit about six hours in an eight-hour work day.
(Id.) Claimant could never climb ladders, ropes or scaffolds, but could occasionally
climb ramps and stairs; and could occasionally balance, stoop, kneel, crouch and crawl.
(Id.) In addition, Claimant could not have more than concentration exposure to humidity
and wetness; atmospheric conditions, such as dusts, fumes, odors, and gases; weather
conditions, such as being outdoors on extremely hot or cold days; or extremes of cold
and heat, such as being exposed to freezers or blast furnaces. (Id.) The ALJ also
found that Claimant is unable to perform past relevant work. (R. 27.) However, at step
five, the ALJ found that considering Claimant's age, education, work experience, and
RFC, there were jobs that existed in significant numbers in the national economy that
Claimant could have performed. (Id.) As a result, the ALJ found that Claimant has not
been under a disability from March 29, 2007, the alleged onset date, through March 31,
2013, the date last insured. (R. 28).
Claimant argues that the ALJ erred in determining his RFC and erred in
assessing his credibility and alleged limitations. Specifically, it is Claimant’s position
that the ALJ did not provide an evidentiary basis for the RFC assessment. Further,

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Claimant contends that the ALJ improperly evaluated Claimant’s limitations for a
number of reasons. The Court addresses Claimant’s arguments in further detail below.
C. The ALJ Did Not Properly Evaluate Claimant’s Limitations.
Claimant claims that the ALJ failed to give legally sufficient reasons for
discrediting Claimant’s alleged limitations. Since the ALJ issued his decision in this
case, the SSA has issued new guidance on how the agency assesses the effects of a
claimant’s alleged symptoms. SSR 96-7p and its focus on “credibility” has been
superseded by SSR 16-3p in order to “clarify that subjective symptom evaluation is not
an examination of the individual’s character.” See SSR 16-3p, 2016 WL 1119029, at *1
(effective March 16, 2016). As SSR 16-3p is simply a clarification of the
Administration’s interpretation of the existing law, rather than a change to it, it can be
applied to Claimant’s case. See Qualls v. Colvin, No. 14 CV 2526, 2016 WL 1392320,
at *6 (N.D. Ill. Apr. 8, 2016); Hagberg v. Colvin, No. 14 CV 887, 2016 WL 1660493, at *6
(N.D. Ill. Apr. 27, 2016). While the Court will rely on the new guidelines under SSR 163, the Court is also bound by case law concerning former SSR 96-7p. Farrar v. Colvin,
No. 14 CV 6319, 2016 WL 3538827, at *5 (N.D. Ill. June 29, 2016).
Under SSR 16-3, the ALJ must first determine whether the Claimant has a
medically determinable impairment that could reasonably be expected to produce his
symptoms. SSR 16-3p, 2016 WL 1119029, at *2. Then, the ALJ must evaluate the
“intensity, persistence and functionally limiting effects of the individual’s symptoms to
determine the extent to which the symptoms affect the individual’s ability to do basic
work activities.” Id. An individual’s statements about the intensity and persistence of
the pain may not be disregarded because they are not substantiated by objective

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medical evidence. Id. at *5. In determining the ability of the Claimant to perform workrelated activities, the ALJ must consider the entire case record, and the decision must
contain specific reasons for the finding. Id. at *4, 9.
The ALJ is obligated to consider all relevant medical evidence and may not
cherry-pick facts to support a finding of non-disability while ignoring evidence that points
to a disability finding. Goble v. Astrue, 385 Fed.Appx. 588, 593 (7th Cir. 2010).
However, the ALJ need not mention every piece of evidence so long as he builds a
logical bridge from the evidence to his conclusion. Id.
Here, the ALJ found that although Claimant alleged disability in March 2007, he
was able to perform some level of work activity. Specifically, the ALJ references
Claimant’s care to his wife’s uncle for a period of time. The ALJ also noted that
although Claimant reported difficulty walking, he was able to care for his personal
hygiene, perform certain household chores, and mow his lawn.
While the ALJ listed certain activities that Claimant was able to do, the ALJ failed
to acknowledge the full scope of the actual activities and accompanying limitations. For
example, Claimant did care for his uncle when the uncle lived in his home, but Claimant
said that the care was limited to making some meals. Further, although Claimant
testified that he was able to perform certain household activities, he also stated that he
often needed to lie down after mowing his small lawn or doing some chores and could
only go to a grocery store if it was small. The ALJ did not acknowledge the breaks that
Claimant frequently referenced needing to take when performing certain tasks, instead
focusing on the actual tasks performed. See Scrogham v. Colvin, 765 F.3d 685, 700
(7th Cir. 2014) (citing Clifford, 227 F.3d 863 at 872 (To the extent that the ALJ relied on

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evidence of Mr. Scrogham’s daily activities to determine that he was capable of
returning to work, those activities did not constitute “substantial evidence that [he] does
not suffer disabling pain,” and they “do not establish that [he] is capable of engaging in
substantial physical activity.”)); Punzio v. Astrue, 630 F.3d 704, 712 (7th Cir. 2011)
(Claimant’s ability to struggle through activities of daily living did not mean that she
could manage working.); Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir. 2005) (The ALJ
improperly equated the ability to do household chores with working in the standard labor
market.).
Therefore, the ALJ improperly accorded certain aspects of Claimant’s ability to
perform select household chores with the ability to work. The ALJ also selectively
discussed certain activities from Claimant’s testimony without acknowledging the full
scope of the household work. The ALJ is not permitted to “cherry pick” from Claimant’s
testimony about his capabilities to support a denial of benefits. See Scott v. Astrue, 647
F.3d 734, 740 (7th Cir. 2011); Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010).
While the ALJ’s consideration of these limitations along with the activities may not have
altered the ALJ’s final decision, the fact remains that there was a selective discussion of
the evidence on the record and remand is required.
D. The ALJ Did Not Properly Evaluate Claimant’s Residual Functional
Capacity.
Claimant argues that the ALJ failed to accurately evaluate his RFC, as the ALJ
rejected the medical opinions in the record and instead chose to arrive at his own
conclusion regarding Claimant’s limitations. The ALJ found, among other things, that
Claimant had the RFC to lift and/or carry twenty pounds occasionally, and ten pounds

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frequently; stand and/or walk about six hours in an eight-hour work day; and sit about
six hours in an eight-hour work day.
In assessing Claimant’s RFC, the ALJ noted that Claimant did not submit any
treating source opinions and specifically stated: “no treating source has specifically
provided an opinion that the claimant was unable to perform basic work activities prior
to March 31, 2013.” (R. 25-26.) Claimant contends that because there were no treating
source opinions to review, the ALJ must have substituted his own opinion for that of a
medical professional. Based on the record before this Court, we find that the ALJ was
in the proper position to make an RFC determination, but we agree that the ALJ did not
sufficiently address all of Claimant’s limitations such that the RFC assessment was
appropriate.
The determination of RFC is not a medical assessment, but an administrative
assessment of what work-related activities a claimant can perform despite his or her
limitations. See 20 C.F.R. § 404.1545(a); Diaz v. Charter, 55 F.3d 300, 306 n. 2 (7th
Cir. 1995); Dixon v. Massanari, 270 F.3d at 1178. The determination of RFC is an issue
reserved to the Social Security Administration (“the Administration”); and in determining
what a claimant can do despite his limitations, the Administration must consider the
entire record. Diaz, 55 F.3d at 306 n.2; 20 C.F.R. § 404.1545(a). This consideration
necessarily includes all medical evidence, but also nonmedical evidence, such as the
claimant’s statement of what he or she is able to do. Id. As discussed above, the ALJ
did not properly consider Claimant’s testimony about his limitations.
Further, the ALJ found that Claimant could stand and/or walk for six hours in an
eight-hour day and sit for six hours in an eight-hour day. Claimant’s record, however,

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contains numerous references to fatigue, leg pain, cramping, and a burning sensation in
his feet. (R. 254, 298, 303, 312, 342.) He also testified about not being able to walk
more than a block before experiencing cramping in his legs. (R. 53.) The ALJ noted
that although Claimant’s cramping in the legs and feet could be related to sarcoidosis,
his circulation and nerve tests were normal. The ALJ, however, is not a physician
qualified to make a determination about what a normal circulation and nerve test may
mean for sarcoidosis symptoms in the legs. See Myles v. Astrue, 582 F.3d 672, 677
(7th Cir. 2009) (The ALJ may not make an independent medical determination.);
McCristal v. Astrue, No. 9 CV 7044, 2011 WL 2648591, at *10 (N.D. Ill. July 5, 2011)
(The ALJ could not use his own lay opinions to fill in evidentiary gaps in the record.).
Here, the ALJ improperly determined Claimant’s abilities to stand and/or walk for long
periods of time notwithstanding the numerous medical records citing to pain in the legs
and fatigue and Claimant’s testimony about needing to take breaks. The ALJ did not
build a logical bridge from the medical evidence about Claimant’s leg pains to the ALJ’s
standing and sitting determination. On remand, the ALJ is to consider the whole record
when reaching an RFC determination, properly taking into consideration Claimant’s
subjective symptoms.
III. CONCLUSION
For the aforementioned reasons, Claimant’s motion for summary judgment is
granted and the Commissioner’s motion for summary judgment is denied. This case is
remanded to the Social Security Administration for further proceedings consistent with
this opinion. It is so ordered.

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ENTERED:
__________________________
Michael T. Mason
United States Magistrate Judge

Dated: July 25, 2017

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