O'Brien v. Colvin

Filing 21

MEMORANDUM Opinion and Order Signed by the Honorable Mary M. Rowland on 10/31/2017. Mailed notice. (dm, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PATRICK M. O’BRIEN,
Plaintiff,
v.
BERRYHILL, 1

NANCY A.
Acting
Commissioner of Social Security,

No. 17 C 0272
Magistrate Judge Mary M. Rowland

Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Patrick O’Brien filed this action seeking reversal of the final decision of
the Commissioner of Social Security denying his applications for Disability
Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Titles II
and XVI of the Social Security Act (Act). 42 U.S.C. §§ 405(g), 423 et seq. The parties
have consented to the jurisdiction of the United States Magistrate Judge, pursuant
to 28 U.S.C. § 636(c), and filed cross motions for summary judgment. For the
reasons stated below, the case is remanded for further proceedings consistent with
this Opinion.
I. THE SEQUENTIAL EVALUATION PROCESS
To recover Disability Insurance Benefits, a claimant must establish that he or
she is disabled within the meaning of the Act. 2 York v. Massanari, 155 F. Supp. 2d

Nancy A. Berryhill is substituted for her predecessor, Carolyn W. Colvin, pursuant to
Federal Rule of Civil Procedure 25(d).
1

The regulations governing the determination of disability for DIB are found at 20
C.F.R. § 404.1501 et seq. The SSI regulations are set forth at 20 C.F.R. § 416.901 et seq.
2

973, 977 (N.D. Ill. 2001). A person is disabled if he or she is unable to perform “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.” 20
C.F.R. § 404.1505(a). In determining whether a claimant suffers from a disability,
the Commissioner conducts a standard five-step inquiry:
1.

Is the claimant presently unemployed?

2.

Does the claimant have a severe medically determinable
physical or mental impairment that interferes with basic workrelated activities and is expected to last at least 12 months?

3.

Does the impairment meet or equal one of a list of specific
impairments enumerated in the regulations?

4.

Is the claimant unable to perform his or her former occupation?

5.

Is the claimant unable to perform any other work?

20 C.F.R. §§ 404.1509, 404.1520; see Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir.
2000). “An affirmative answer leads either to the next step, or, on Steps 3 and 5, to
a finding that the claimant is disabled. A negative answer at any point, other than
Step 3, ends the inquiry and leads to a determination that a claimant is not
disabled.” Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985). “The burden of
proof is on the claimant through step four; only at step five does the burden shift to
the Commissioner.” Clifford, 227 F.3d at 868.

The standard for determining DIB is virtually identical to that used for SSI. Craft v. Astrue,
539 F.3d 668, 674 n.6 (7th Cir. 2008) (“Although the Code of Federal Regulations contains
separate sections for DIB and SSI, the processes of evaluation are identical in all respects
relevant to this case.”). Accordingly, this Court cites to both DIB and SSI cases.

2

II. PROCEDURAL HISTORY
Plaintiff protectively applied for DIB and SSI on January 3, 2013, alleging he
became disabled on August 14, 2012. (R. at 17). These claims were denied initially
and upon reconsideration, after which Plaintiff filed a timely request for a hearing.
(Id. at 17, 186–87). On August 14, 2015, Plaintiff, represented by counsel, testified
at a hearing before Administrative Law Judge (ALJ) Margaret Carey. (Id. at 39–
109). The ALJ also heard testimony from Gary Wilhelm, a vocational expert (VE),
and Richard O’Brien, Plaintiff’s father. (Id.).
The ALJ denied Plaintiff’s request for benefits on September 25, 2015. (R. at 17–
28). Applying the five-step sequential evaluation process, the ALJ found, at step
one, that Plaintiff had not engaged in substantial gainful activity since his alleged
onset date of August 14, 2012. (Id. at 19). At step two, the ALJ found that Plaintiff
had the following severe impairments: fibromyalgia; traumatic brain injury; and
mood disorder/affective disorder. (Id.). At step three, the ALJ determined that
Plaintiff does not have an impairment or combination of impairments that meet or
medically equal the severity of any of the listings enumerated in the regulations.
(Id.).
The ALJ then assessed Plaintiff’s Residual Functional Capacity (RFC) 3 and
determined that Plaintiff has the RFC to perform light work, as defined in 20 C.F.R.
§ 404.1567(b) and 416.967(b), except that he is limited to:
Before proceeding from step three to step four, the ALJ assesses a claimant’s residual
functional capacity. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). “The RFC is the maximum
that a claimant can still do despite his mental and physical limitations.” Craft v. Astrue,
539 F.3d 668, 675-76 (7th Cir. 2008).
3

3

frequent climbing of ladders, ropes, and scaffolds, ramps and stairs,
stooping, kneeling crouching, and crawling; occasional overhead
reaching; simple and routine tasks with occasional decision making
and occasional changes in the work environment; no more than
superficial interaction with the public; can be around coworkers on a
daily basis, but is limited to no more than occasional interaction and
thus cannot perform tandem tasks or tasks where one production step
depends on another; and will be isolated with only occasional
interaction with supervisors.
(R. at 21–22). The ALJ determined at step four that Plaintiff was unable to perform
any past relevant work. (Id. at 26). At step five, based on Plaintiff’s RFC, his
vocational factors, and the VE’s testimony, the ALJ found that there are jobs that
exist in significant numbers in the national economy that Plaintiff can perform,
including marker-retail and housekeeper. (Id. at 27). Accordingly, the ALJ
concluded that Plaintiff was not under a disability, as defined by the Act, from the
alleged onset date through the date of the ALJ’s decision. (Id. at 28).
The Appeals Council denied Plaintiff’s request for review on November 16, 2016.
(R. at 1–6). Plaintiff now seeks judicial review of the ALJ’s decision, which stands as
the final decision of the Commissioner. Villano v. Astrue, 556 F.3d 558, 561–62 (7th
Cir. 2009).
III. STANDARD OF REVIEW
Judicial review of the Commissioner’s final decision is authorized by § 405(g) of
the SSA. In reviewing this decision, the Court may not engage in its own analysis of
whether the plaintiff is severely impaired as defined by the Social Security
Regulations. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Nor may it

4

“reweigh evidence, resolve conflicts in the record, decide questions of credibility, or,
in general, substitute [its] own judgment for that of the Commissioner.” Id. The
Court’s task is “limited to determining whether the ALJ’s factual findings are
supported by substantial evidence.” Id. (citing § 405(g)). Evidence is considered
substantial “if a reasonable person would accept it as adequate to support a
conclusion.” Indoranto v. Barnhart, 374 F.3d 470, 473 (7th Cir. 2004); see Moore v.
Colvin, 743 F.3d 1118, 1120–21 (7th Cir. 2014) (“We will uphold the ALJ’s decision
if it is supported by substantial evidence, that is, such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”) (citation
omitted). “Substantial evidence must be more than a scintilla but may be less than
a preponderance.” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). “In addition
to relying on substantial evidence, the ALJ must also 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).
Although this Court accords great deference to the ALJ’s determination, it “must
do more than merely rubber stamp the ALJ’s decision.” Scott v. Barnhart, 297 F.3d
589, 593 (7th Cir. 2002) (citation omitted). “This deferential standard of review is
weighted in favor of upholding the ALJ’s decision, but it does not mean that we
scour the record for supportive evidence or rack our brains for reasons to uphold the
ALJ’s decision. Rather, the ALJ must identify the relevant evidence and build a
‘logical bridge’ between that evidence and the ultimate determination.” Moon v.
Colvin, 763 F.3d 718, 721 (7th Cir. 2014). Where the Commissioner’s decision “lacks

5

evidentiary support or is so poorly articulated as to prevent meaningful review, the
case must be remanded.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
IV. DISCUSSION
Plaintiff contends that the ALJ’s decision contains errors of law and is not
supported by substantial evidence because the ALJ (1) improperly assessed
Plaintiff’s subjective symptoms and credibility; (2) improperly evaluated the medical
opinion evidence; and (3) failed to account for all of Plaintiff’s limitations in
formulating his RFC. (Dkt. 16 at 6–22).
A. The ALJ’s Evaluation of Plaintiff’s Subjective Symptom Statements
Because an RFC assessment will often “depend heavily on the credibility of [a
claimant’s] statements concerning the ‘intensity, persistence and limiting effects’ of
[his] symptoms,” the Court first addresses Plaintiff’s argument that the ALJ
improperly analyzed his symptom statements. See Bjornson v. Astrue, 671 F.3d 640,
645 (7th Cir. 2012). The Social Security Administration determined that it would no
longer assess the “credibility” of a claimant’s statements, but would instead focus on
determining the “intensity and persistence of [the claimant’s] symptoms.” Social
Security Regulation (SSR) 4 16-3p, at *2. “The change in wording is meant to clarify
that administrative law judges aren’t in the business of impeaching claimants’
character; obviously administrative law judges will continue to assess the credibility
SSRs “are interpretive rules intended to offer guidance to agency adjudicators. While
they do not have the force of law or properly promulgated notice and comment regulations,
the agency makes SSRs binding on all components of the Social Security Administration.”
Nelson v. Apfel, 201 F.3d 799, 803 (7th Cir. 2000); see 20 C.F.R. § 402.35(b)(1). While the
court is “not invariably bound by an agency’s policy statements, the Court “generally
defer[s] to an agency’s interpretations of the legal regime it is charged with
administrating.” Liskowitz v. Astrue, 556 F.3d 736, 744 (7th Cir. 2009).
4

6

of pain assertions by applicants, especially as such assertions often cannot be either
credited or rejected on the basis of medical evidence.” Cole v. Colvin, 831 F.3d 411,
412 (7th Cir. 2016) (emphasis in original).
The regulations describe a two-step process for evaluating a claimant’s own
description of his or her impairments. First, the ALJ “must consider whether there
is an underlying medically determinable physical or mental impairment(s) that
could reasonably be expected to produce the individual’s symptoms, such as pain.”
SSR 16-3p, at *2; see also 20 C.F.R. § 416.929. “Second, once an underlying physical
or mental impairment(s) that could reasonably be expected to produce the
individual's symptoms is established, we evaluate the intensity and persistence of
those symptoms to determine the extent to which the symptoms limit an
individual’s ability to perform work-related activities . . . .” SSR 16-3p, at *2.
In evaluating the claimant’s subjective symptoms, “an ALJ must consider
several factors, including the claimant’s daily activities, [his] level of pain or
symptoms, aggravating factors, medication, treatment, and limitations, and justify
the finding with specific reasons.” Villano, 556 F.3d at 562 (citations omitted); see
20 C.F.R. § 404.1529(c); SSR 16-3p. An ALJ may not discredit a claimant’s
testimony about his symptoms “solely because there is no objective medical evidence
supporting it.” Villano, 556 F.3d at 562 (citing 20 C.F.R. § 404.1529(c)(2)); see
Johnson v. Barnhart, 449 F.3d 804, 806 (7th Cir. 2006) (“The administrative law
judge cannot disbelieve [the claimant’s] testimony solely because it seems in excess
of the ‘objective’ medical testimony.”). Even if a claimant’s symptoms are not

7

supported directly by the medical evidence, the ALJ may not ignore circumstantial
evidence, medical or lay, which does support claimant’s credibility. Lopez ex rel.
Lopez v. Barnhart, 336 F.3d 535, 539–40 (7th Cir. 2003). Indeed, SSR 16-3p, like
former SSR 96-7p, requires the ALJ to consider “the entire case record, including
the objective medical evidence; an individual’s statements about the intensity,
persistence, and limiting effects of symptoms; statements and other information
provided by medical sources and other persons; and any other relevant evidence in
the individual’s case record.” SSR 16-3p, at *4.
The Court will uphold an ALJ’s subjective symptom evaluation if the ALJ gives
specific reasons for that finding, supported by substantial evidence. Moss v. Astrue,
555 F.3d 556, 561 (7th Cir. 2009). The ALJ’s decision “must contain specific reasons
for a credibility finding; the ALJ may not simply recite the factors that are
described in the regulations.” Steele, 290 F.3d at 942 (citation omitted). “Without an
adequate explanation, neither the applicant nor subsequent reviewers will have a
fair sense of how the applicant’s testimony is weighed.” Id.
In this case, the Court finds that the reasons provided by the ALJ for rejecting
Plaintiff’s subjective symptom statements are legally insufficient and not supported
by substantial evidence, warranting remand on this issue. See Ghiselli v. Colvin,
837 F.3d 771, 778–79 (7th Cir. 2016).
First, the ALJ failed to explain how Plaintiff’s ability to complete limited daily
activities undermines his allegations of pain or equates to an ability to perform fulltime work. While it is permissible for an ALJ to consider a claimant’s daily

8

activities when assessing a Plaintiff’s subjective symptom statements, the Seventh
Circuit has repeatedly instructed that ALJs are not to place “undue weight” on
those activities. Moss, 555 F.3d at 562; see also Punzio v. Astrue, 630 F.3d 704, 712
(7th Cir. 2011) (“[The claimant’s] ability to struggle through the activities of daily
living does not mean that [the claimant] can manage the requirements of a modern
work-place”). Further, when an ALJ does analyze a claimant’s daily activities, the
analysis “must be done with care.” See Roddy v. Astrue, 705 F.3d 631, 639 (7th Cir.
2013).
Here, the ALJ stated that “the activities reported by the claimant (as set forth
above) suggests a higher level of functioning than alleged by the claimant.” (R. at
24). These activities include, inter alia: taking care of personal hygiene needs,
preparing simple meals, using a computer, taking care of the cat, doing minor
household chores, driving, and gardening. (Id. at 20). But absent from the ALJ’s
opinion is an explanation as to how Plaintiff’s ability to perform these limited tasks
undermines his complaints of debilitating pain. See Jelinek v. Astrue, 662 F.3d 805,
812 (7th Cir. 2011) (“[An ALJ] must explain perceived inconsistencies between a
claimant’s activities and the medical evidence.”); Ghiselli, 837 F.3d at 778 (finding
error when ALJ did not “identify a basis for his conclusion that the life activities
[claimant] reported were inconsistent with the physical impairments she claimed”).
Likewise, these limited activities do not demonstrate that Plaintiff can perform fulltime work. See Bjornson, 671 F.3d at 647 (“The critical differences between
activities of daily living and activities in a full-time job are that a person has more

9

flexibility in scheduling the former than the latter, can get help from other persons .
. . and is not held to a minimum standard of performance, as she would be by an
employer.”) (collecting cases); Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir.
2004) (ALJ failed to consider the difference between a person being able to engage
in sporadic physical activities and [his] being able to work eight hours a day five
consecutive days of the week).
Significantly, the ALJ ignored Plaintiff’s numerous qualifications when
performing daily activities, and did not consider that many activities require
assistance from a family member. For instance, in a May 2013 Function Report,
Plaintiff reported that he could perform some household chores such as cleaning
and laundry, but indicated that he is in pain when he performs these chores and
that “it seems or takes forever.” (R. at 314). He could pour food in a bowl for his cat,
but required assistance with cleaning the litter box. (Id. at 313). Plaintiff testified
that he had not been able to work in the garden for the past two years because it
became too painful. (Id. at 79, 314). His father and sister do most of the housework.
(Id. at 79, 86, 303–05, 314). Plaintiff is able to drive, but does so as little as possible
due to pain. (Id. at 50–51). He frequently relies on his father to drive him to
appointments. (Id. at 86). “An ALJ cannot disregard a claimant’s limitations in
performing household activities.” Moss, 555 F.3d at 562. The ALJ did not discuss
any of these qualifications in her analysis of Plaintiff’s subjective allegations. While
an ALJ need not discuss or give great weight to every piece of evidence in the

10

record, she “must confront the evidence that does not support [her] conclusion and
explain why it was rejected.” Indoranto, 374 F.3d at 474.
Next, despite finding Plaintiff’s fibromyalgia to be a severe impairment, the ALJ
emphasized the lack of objective findings as a basis for discrediting Plaintiff’s
testimony. (R. at 22–23). The ALJ’s reasoning reflects a lack of appreciation for the
subjective nature of fibromyalgia. Because fibromyalgia “often produce[s] pain and
other symptoms out of proportion to the ‘objective’ medical evidence, it is crucial
that the disability adjudicator evaluate credibility with great care and a proper
understanding of the disease[ ].” Johnson v. Colvin, No. 13 C 1023, 2014 WL
2765701, at *1 (E.D. Wis. June 18, 2014). Indeed, “[t]here are no laboratory tests for
the presence or severity of fibromyalgia.” Sarchet v. Chater, 78 F.3d 305, 306 (7th
Cir. 1996). Here, the ALJ did not explain how a finding of normal range of motion,
normal gait, 5/5 motor strength, and a neurological examination within normal
limits is inconsistent with the debilitating pain associated with fibromyalgia. There
is no evidence indicating that fibromyalgia causes limitations in strength, range of
motion, or an inability to walk. See Sarchet, 78 F.3d at 307 (“Since swelling of the
joints is not a symptom of fibromyalgia, its absence is no more indicative that the
patient’s fibromyalgia is not disabling than the absence of headache is an indication
that a patient’s prostate cancer is not advanced.”). On the contrary, fibromyalgia is
characterized by widespread pain, not by an inability to walk or a decrease in range
of motion. 5
See <www.mayoclinic.org/diseases-conditions/fibromyalgia> (last visited October 10,
2017).
5

11

Also problematic is the ALJ’s boilerplate statement that Plaintiff’s testimony
was “not entirely credible.” (R. at 22). The Seventh Circuit has repeatedly stressed
that finding a claimant’s testimony “not entirely credible,” as the ALJ did here,
without any indication as to which statements are not credible and what exactly
“not entirely” is meant to signify, tells the reviewing court little or nothing. See
Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010) (“The statement by a trier of fact
that a witness’s testimony is ‘not entirely credible’ yields no clue to what weight the
trier of fact gave the testimony.”); Chase v. Astrue, 458 F. App’x 553, 558 (7th Cir.
2012) (holding that the ALJ’s “fail[ure] to specify which statements are or are not
credible . . . leaves us with no basis to review” the ALJ’s credibility and RFC
determinations); Martinez v. Astrue, 630 F.3d 693, 696 (7th Cir. 2011) (the ALJ’s
finding that the claimant’s testimony was “not entirely credible” provides “no
explanation of which of [the claimant’s] statements are not entirely credible or how
credible or noncredible any of them are.”). While an ALJ need not address every
symptom allegation, she must provide sufficient details as to allow the Court to
trace the path of her reasoning. See Steele, 290 F.3d at 942; Scott, 297 F.3d at 595.
The ALJ’s failure to do so here leaves the Court unable to discern which of
Plaintiff’s statements the ALJ credited and which she did not.
In sum, the ALJ failed to “build and accurate and logical bridge from the
evidence to her conclusion.” Steele, 290 F.3d at 941 (internal quotation omitted).
This prevents the Court from assessing the validity of the ALJ’s findings and
providing meaningful judicial review. See Scott, 297 F.3d at 595. While the Court

12

does not hold that the ALJ should have accepted Plaintiff’s allegations, the
foundation underlying her assessment was inadequate. On remand, the ALJ shall
reassess Plaintiff’s subjective symptom statements with due regard for the full
range of medical evidence, following the requirements of SSR 16-3p.
B. The ALJ Did Not Properly Evaluate the Treating Physician’s Opinion
Plaintiff next contends that the ALJ improperly assessed the treating source
opinion evidence. In particular, Plaintiff argues that the ALJ erred in failing to
accord controlling weight to the opinions of his treating physician, Dr. Rodos. By
rule, “in determining whether a claimant is entitled to Social Security disability
benefits, special weight is accorded opinions of the claimant’s treating physician.”
Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825 (2003). The opinion of a
treating source is entitled to controlling weight if the opinion “is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence.” 20 C.F.R. § 404.1527(d)(2); accord
Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008). A treating physician typically
has a better opportunity to judge a claimant’s limitations than a nontreating
physician. Books v. Chater, 91 F.3d 972, 979 (7th Cir. 1996); Grindle v. Sullivan,
774 F. Supp. 1501, 1507–08 (N.D. Ill. 1991). “More weight is given to the opinion of
treating physicians because of their greater familiarity with the claimant’s
conditions and circumstances.” Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir.
2003). Therefore, an ALJ “must offer ‘good reasons’ for discounting a treating
physician’s opinion,” and “can reject an examining physician’s opinion only for

13

reasons supported by substantial evidence in the record; a contradictory opinion of a
non-examining physician does not, by itself, suffice.” Campbell v. Astrue, 627 F.3d
299, 306 (7th Cir. 2010) (citing 20 C.F.R. § 404.1527(d)(2); other citation omitted).
Furthermore, even where a treater’s opinion is not given controlling weight, an
ALJ must still determine what value the assessment does merit. Scott v. Astrue, 647
F.3d 734, 740 (7th Cir. 2011); Campbell, 627 F.3d at 308. In making that
determination, the regulations require the ALJ to consider a variety of factors,
including: (1) the nature and duration of the examining relationship; (2) the length
and extent of the treatment relationship; (3) the extent to which medical evidence
supports the opinion; (4) the degree to which the opinion is consistent with the
entire record; (5) the physician’s specialization if applicable; and (6) other factors
which validate or contradict the opinion. 20 C.F.R. § 404.1527(d)(2)–(6). In sum,
“whenever an ALJ does reject a treating source’s opinion, a sound explanation must
be given for that decision.” Punzio, 630 F.3d at 710 (citing 20 C.F.R. §
404.1527(d)(2)).
In March 2013, Dr. Rodos completed a Mental Disorders Report and a
Fibromyalgia RFC Questionnaire. (R. at 25). On the Mental Disorders Report, Dr.
Rodos indicated a diagnosis of Bipolar II Disorder. (Id. at 371). He opined that
Plaintiff’s illness restricted his daily activities, but had not impacted his ability to
sustain concentration and attention to the extent that it resulted in frequent failure
to complete tasks. (Id.). Dr. Rodos further opined that, as a result of the affective
disorder, Plaintiff’ had no restriction of activities of daily living, mild limitation in

14

maintaining

social

functioning,

and

moderate

limitation

in

maintaining

concentration, persistence, or pace. (Id. at 373). He indicated that Plaintiff would be
absent from work approximately three times a month as a result of his illness, and
that he would sometimes need to lie down at unpredictable intervals during a work
shift. (Id. at 371, 378).
On the Fibromyalgia RFC Questionnaire, Dr. Rodos indicated that Plaintiff met
the American Rheumatological Society’s criteria for fibromyalgia, and noted that
Plaintiff had the following signs and symptoms of fibromyalgia: multiple tender
points, nonrestorative sleep, lack of endurance, and impaired concentration. (R. at
423). Dr. Rodos opined that emotional factors contributed to the severity of
Plaintiff’s symptoms and his functional limitations. (Id.). He indicated that
Plaintiff’s concentration and attention are often impacted by his fatigue and pain,
and that Plaintiff was moderately limited in his ability to deal with work stress.
(Id.). Plaintiff would be absent approximately three times a month. (Id. at 424). On
both forms, Dr. Rodos concluded that Plaintiff did not retain the functional ability
to work in a competitive environment, in even a sedentary occupation, on a full-time
eight hours a day, five days a week basis. (Id. at 378).
The Court finds the ALJ improperly discounted the March 2013 medical
opinions of Dr. Rodos. 6 It is undisputed that Dr. Rodos is Plaintiff’s treating

The ALJ also considered Dr. Rodos’ September 2011 opinion that Plaintiff was unable
to perform his job duties and was disabled until December 30, 2011, but gave the opinion
“little weight” because the work restriction was only temporary and therefore was not a
reflection of Plaintiff’s long-term functioning. (R. at 482, 25). The Court finds no error in the
ALJ’s treatment of this opinion. See Stepp v. Colvin, 795 F.3d 711, 719 (7th Cir. 2015)
(“Because this assessment and the anticipated date of [Plaintiff’s] return to work both
6

15

physician. The ALJ herself recognized that “Dr. Rodos had a treating relationship
with [Plaintiff] and examined him on multiple occasions.” (R. at 25). However, the
ALJ gave insufficient reasons to discount Dr. Rodos’ medical opinions as a treating
physician.
The ALJ offered three reasons for giving Dr. Rodos’ opinions “some weight.” (R.
at 25). First, the ALJ concluded that “the limitations assessed by Dr. Rodos are not
entirely consistent with each other or the overall record.” (R. at 25). The ALJ noted
that, on the Mental Disorders Report, Dr. Rodos answered “yes” to the question of
whether the illness restricts daily activities, but later indicated that Plaintiff’s
affective disorder did not result in a restriction of activities of daily living. (R. at 25,
371, 373). True, Dr. Rodos’ answers to these two questions appear to be
contradictory, and the ALJ was entitled to take this inconsistency account in
assessing Dr. Rodos’ opinions. See Clifford, 227 F.3d at 871 (internal inconsistencies
may provide good cause to deny controlling weight to a treating physician’s opinion
so long as the ALJ provides an adequate explanation). However, the Court is not
prepared to conclude that such a minor inconsistency is fatal to the credibility of Dr.
Rodos’ other opinions or his ultimate conclusions regarding the nature and severity
of Plaintiff’s condition and his related functional limitations. See Stage v. Colvin,
812 F.3d 1121, 1126 (7th Cir. 2016). Furthermore, the ALJ’s conclusory assertion
that inconsistencies existed between Dr. Rodos’ opinions and “the overall record” is
insufficient. “If the ALJ concludes that the treating physician’s opinion is
predated the alleged onset of [Plaintiff’s] disability . . . we do not find the assessment
particularly probative of [Plaintiff’s] condition during the adjudicative period.”).

16

inconsistent with other evidence, she must explain the inconsistency.” Frobes v.
Barnhart, 467 F. Supp. 2d 808, 8189 (N.D. Ill. 2006). The ALJ did not do so here.
The ALJ also determined that “the objective medical evidence in the record does
not support all of the limitations assessed by Dr. Rodos,” as physical and mental
examinations “have generally not revealed significant functional limitations.” (Id. at
25). The Court finds this rationale equally unpersuasive. First, the ALJ offers no
explanation as to which of the limitations assessed are supported by the objective
evidence and which limitations are unsupported. Moreover, “the ALJ’s analysis
reveals an all-too-common misunderstanding of mental illness. The very nature of
bipolar disorder is that people with the disease experience fluctuations in their
symptoms, so any single notation that a patient is feeling better or has had a ‘good
day’ does not imply that the condition has been treated.” Scott, 647 F.3d at 740; see
also Punzio, 630 F.3d at 710; Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010);
Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir. 2008). The fact that a few mental status
examinations “have generally not revealed significant problems” is not clearly
inconsistent with Dr. Rodos’ opinions. Similarly, as explained above, fibromyalgia’s
symptoms are entirely subjective, and there are no laboratory tests for the presence
or severity of fibromyalgia. See Sarchet, 78 F.3d at 306. Thus, the lack of significant
physical abnormalities during examinations does not necessarily undermine Dr.
Rodos’ opinions.
Finally, the ALJ further discounted Dr. Rodos’ opinions on the basis that Dr.
Rodos did not provide an adequate explanation for why Plaintiff was unable to

17

work. (R. at 25). However, Dr. Rodos noted that Plaintiff suffered from pain,
exacerbated by movement, overuse, and stress, and emotional factors, and that he
also suffered from non-restorative sleep and fatigue. (Id. at 423). He noted that
Plaintiff needed to lie down during the day, at unpredictable intervals. (Id. at 424).
He also noted that Plaintiff’s symptoms would cause him to miss work about three
times each month. (Id. at 378, 424).
Even assuming that the ALJ provided “good reasons” for not affording Dr. Rodos’
opinions controlling weight, she was still required to address the factors listed in 20
C.F.R. § 404.1527 to determine what weight to give the opinion. SSR 96-2p. SSR 962p states that treating source medical opinions “are still entitled to deference and
must be weighed using all of the factors provided in 20 C.F.R. § 404.1527.” (Id.). 20
C.F.R. § 404.1527(c); Yurt v. Colvin, 758 F.3d 850, 860 (7th Cir. 2014); Moss, 555
F.3d at 561. In this case, although the ALJ acknowledged that Dr. Rodos had a
treating relationship with Plaintiff and had examined him on multiple occasions, it
is not clear to the Court that the ALJ adequately considered several of the
regulatory factors, including the nature and extent of the treatment relationship,
the supportability of the decision, the consistency of the opinion with the record as a
whole, or whether Dr. Rodos had a relevant specialty. The ALJ’s failure to
“sufficiently account [ ] for the factors in 20 C.F.R. § 404.1527,” Schreiber v. Colvin,
519 F. App’x 951, 959 (7th Cir. 2013), prevents the Court from assessing the
reasonableness of the ALJ’s decision. For these reasons, the ALJ did not offer
substantial evidence for rejecting the opinions of Dr. Rodos, which is an error

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requiring remand.
On remand, the ALJ shall reevaluate the weight to be afforded to the opinions of
Dr. Rodos. If the ALJ finds “good reasons” for not giving the opinions controlling
weight, see Campbell, 627 F.3d at 306, the ALJ shall explicitly “consider the length,
nature, and extent of the treatment relationship, frequency of examination, the
physician’s specialty, the types of tests performed, and the consistency and
supportability of the physician’s opinion,” Moss, 555 F.3d at 561, in determining
what weight to give the opinion.
C. Other Issues
Because the Court is remanding to reevaluate Plaintiff’s subjective symptom
statements and the weight to be given to Dr. Rodos’ opinion, the Court chooses not
to address Plaintiff’s other arguments at this time. However, on remand, after
determining the weight to be given the treating physician’s opinions, the ALJ shall
then reevaluate Plaintiff’s physical and mental impairments and RFC, considering
all of the evidence of record, including Plaintiff’s testimony, and shall explain the
basis of his findings in accordance with applicable regulations and rulings. Finally,
with the assistance of a VE, the ALJ shall determine whether there are jobs that
exist in significant numbers that Plaintiff can perform.
D. Remedy
Plaintiff requests a reversal of the Commissioner’s decision with an order to
award benefits or, in the alternative, a reversal with a remand for further
proceedings. When reviewing a denial of disability benefits, a court may “affirm,

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reverse, or modify the Social Security Administration’s decision, with or without
remanding the case for further proceedings.” Allord v. Astrue, 631 F.3d 411, 415
(7th Cir. 2011) (citing 42 U.S.C. § 405(g)). The court may reverse with an
instruction to award benefits only if “all factual issues have been resolved and the
record can yield but one supportable conclusion.” Briscoe ex. re. Taylor v. Barnhart,
425 F.3d 345, 355 (7th Cir. 2005) (citation omitted). That is not the case here, and it
is not the purview of this Court to gather or reweigh evidence. Therefore, remand
for further proceedings is the appropriate remedy.
V. CONCLUSION
For the reasons stated above, Plaintiff’s motion for summary judgment [16] is
GRANTED. Defendant’s Motion for Summary Judgement [17] is DENIED.
Pursuant to sentence four of 42 U.S.C. § 405(g), the ALJ’s decision is reversed, and
the case is remanded to the Commissioner for further proceedings consistent with
this Opinion.

Dated: October 31, 2017

E N T E R:

MARY M. ROWLAND
United States Magistrate Judge

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