Mitchell v. Colvin

Filing 25

MEMORANDUM Opinion and Order; Plaintiff's motion for summary judgment is granted, the government's motion is denied, and this case is remanded for further proceedings. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 9/8/2015: (yxp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
DARLENE G. MITCHELL
Plaintiff,
v.
CAROLYN COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 13 CV 50209
Magistrate Judge Iain D. Johnston

MEMORANDUM OPINION AND ORDER
Plaintiff Darlene Mitchell brings this action under 42 U.S.C. § 405(g), seeking remand of
the denial of social security disability benefits. As explained below, the decision is remanded not
because of a specific singular egregious error by the ALJ but rather by several smaller errors.
Each error, standing alone, would not be sufficient to remand this case, but, collectively, the
errors require remand.
BACKGROUND
On November 9, 2011, a hearing was held before an administrative law judge (“ALJ”).
The hearing was brief. The hearing lasted just 30 minutes. The only two witnesses were plaintiff
and a vocational expert. No medical expert was called.
Plaintiff was then 55 years old, single, living in a townhouse with a roommate. She was
five feet, five inches tall and weighed 280 pounds and last worked on June 15, 2007. The ALJ
asked plaintiff about her ailments. She testified (among other things) that she had breathing
problems (using an inhaler and a CPAP while sleeping); carpal tunnel syndrome in both hands;
hypertension and borderline diabetes; conjunctivitis in her eyes; and pain coming up her legs
from tendonitis and arthritis in her left knee and ankle. R. 50-56.

She testified that she could walk about a block with a cane, but then gets tired and short
of breath. She could stand for about 15 or 20 minutes, but then her lower back starts hurting and
her knees “want to give out.” R. 57. She was a little unsure as to how long she could sit at one
time, but she did not believe she could do so for eight hours. She had difficulty climbing stairs,
and could lift a gallon of milk if she used both hands. She had difficulty bending, stooping and
reaching. Her carpal tunnel made it difficult to reach up and caused her pain when she did so.
She could use her left hand better than her right, but she still has some difficulty with the left
hand. R. 57-60.
She took a while to get to sleep and usually slept six or seven hours. During the day, she
would lay on her bed and watch television. She had a license and occasionally drove. She
prepared meals in the microwave, did dishes (although standing caused pain), did laundry, made
her bed, swept, and vacuumed. Her neighbors helped her take out the trash. R. 61-63.
The last time she went to church was six months before the hearing. Occasionally, she
went to her nephew’s Pee-Wee football games. Her sister typically dropped her off close to the
gate. She did not have regular access to the internet. Although she had an email account, the last
time she looked at it was months before the hearing . R. 63-65.
Plaintiff’s attorney then asked questions. Plaintiff discussed how she had worked for
many years and liked working and only stopped because of her “shortness of breath and not
being able to stand.” R. 66. Also, her arms were not able to do the job of a typist. She worked in
several different jobs, but her longest stint was for Lucent (and its predecessors), a job she held
for 23 years. R. 66-67, 481.
Her attorney asked her how long she could sit still before she would have to start moving
around because of the pain. She was not able to give a precise amount of time: “I don’t know.

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I’ve never timed it. I try to be still, you know, I try not to [move] because I know it probably
irritates other people, [] but I’m used to laying down. That’s what I do. You know, at home that’s
what I do.” R. 68. As for sleeping, she does not feel rested when she wakes up and the lack of
sleep makes it hard for her to remember things. She has “sudden pains” in her shoulder and
numbness in both hands. She feels uncomfortable or in pain or numb all the time, which makes it
hard to concentrate. R. 70-71.
The vocational expert testified that plaintiff had worked at Lucent as a telephone order
clerk (sedentary, semi-skilled), worked a month at a welding company doing dictation
(sedentary, skilled), worked as a sales clerk at Marshalls (light, semi-skilled), and worked at
Walgreens (light, semi-skilled). Of these past jobs, the vocational expert concluded that plaintiff
could only work one: telephone order clerk. If plaintiff needed to lie down for 20% of the day,
then it would eliminate competitive employment.
On February 28, 2012, the ALJ issued her decision. At Step Two, the ALJ found that the
following impairments were severe: “degenerative joint disease in left knee and ankle, and
degenerative changes in right knee; restrictive lung disease/obstructive sleep apnea; history of
carpal tunnel syndrome status post surgery; and obesity.” R. 23. The ALJ found plaintiff’s back
problems, eye problems, hypertension, and borderline diabetes were not severe and that her
depression did not meet a Section 12 listing. The ALJ found that plaintiff had the residual
functional capacity (“RFC”) to do sedentary work: she could “occasionally climb ramps and
stairs, balance, stoop, crouch, kneel, and crawl;” she could use her right hand “frequently to
handle, finger and feel;” she could “reach overhead frequently with [her] right upper extremity”
and the work “must include a sit/stand option to sit 1 hour, stand for 2 minutes.” R. 26-27. The
RFC does not appear to incorporate any limitations to account for memory problems.

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DISCUSSION
A reviewing court may enter judgment “affirming, modifying, or reversing the decision
of the [Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C.
§ 405(g). If supported by substantial evidence, the Commissioner’s factual findings are
conclusive. Id. Substantial evidence exists if there is enough evidence that would allow a
reasonable mind to determine that the decision’s conclusion is supportable. Richardson v.
Perales, 402 U.S. 389, 399-401 (1971). Accordingly, the reviewing court cannot displace the
decision by reconsidering facts or evidence, or by making independent credibility
determinations. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). However, the Seventh Circuit
has emphasized that review is not merely a rubber stamp. Scott v. Barnhart, 297 F.3d 589, 593
(7th Cir. 2002) (a “mere scintilla” is not substantial evidence). If the Commissioner’s decision
lacks evidentiary support or adequate discussion, then the court must remand the matter. Villano
v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). Moreover, a reviewing court must conduct a critical
review of the evidence before affirming the Commissioner’s decision. Eichstadt v. Astrue, 534
F.3d 663, 665 (7th Cir. 2008). Indeed, even when adequate record evidence exists to support the
Commissioner’s decision, the decision will not be affirmed if the Commissioner does not build
an accurate and logical bridge from the evidence to the conclusion. Berger v. Astrue, 516 F.3d
539, 544 (7th Cir. 2008).
It is important to recognize plaintiff’s basis for remand. Plaintiff challenges the RFC
analysis, arguing that the ALJ failed to fully consider the combined limitations for several
ailments. Arnett v. Astrue, 676 F.3d 586, 591 (7th Cir. 2012) (“An ALJ must evaluate all relevant
evidence when determining an applicant’s RFC, including evidence of impairments that are not
severe.”). Consequently, this Court must focus on the consequence of the alleged errors

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collectively. However, this Court will consider these arguments individually in the order
presented by plaintiff, keeping in mind that the ALJ was required to also consider them
collectively.
Obesity. Plaintiff first argues that the ALJ failed to consider her obesity. The ALJ
discussed obesity in two paragraphs. The first paragraph states the following:
Social Security Ruling 02-1p provides guidance regarding a diagnosis of obesity
in the adjudication of disability claims. This ruling points out that the combined
effects of obesity with other impairments can be greater than the effects of each of
the impairments considered separately. It points out that obesity is a risk factor
that increases an individual’s chances of developing impairments in most body
systems. It commonly leads to, and often complicates, chronic diseases of the
cardiovascular, respiratory, and musculoskeletal body systems. The combined
effects of obesity with other impairments may be greater than might be expected
without obesity. For example, someone with obesity and arthritis affecting a
weight-bearing joint may have more pain and limitation than might be expected
from the arthritis alone.
R. 26. Both sides agree that this provision guides the inquiry here. In a later paragraph, the ALJ
discussed obesity as it specifically relates to plaintiff:
With regard to obesity, the claimant participated in treatment at Doctor’s Choice
Weight Loss beginning September 1995 through March 1997 with an initial
weight of 237 pounds and a BMI of 42.8%. Progress notes from February 1997
show her weight was 204 pounds. Medical records from February 2007 document
claimant’s height at 5’5” and a weight of 270 pounds. Her weight was 265 pounds
in June 2008. Progress notes from January 2010 show claimant was 5’5” and
weighed 280 pounds. At the physical CE on December 14, 2010, claimant
weighed 264 pounds and [was] assessed with morbid obesity.
R. 29 (citations omitted).
In these two paragraphs, the ALJ provided no analysis. The first paragraph is merely the
legal standard. The second paragraph merely lists her weight at various times. There simply is
no reasoning to reach a conclusion.
In several recent cases, the Seventh Circuit has strongly criticized ALJs for failing to
explicitly analyze a plaintiff’s obesity. Goins v. Colvin, 764 F.3d 677, 681 (7th Cir 2014)
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(remanding: “Like most obese people, plaintiff can walk. Her obesity is not disabling in itself.
But it is an added handicap for someone who has degenerative disc disease, a narrowed spinal
canal, bronchitis, and a Chiari I malformation. Pain and numbness in the legs caused by spinal
disease are bound to be aggravated by obesity.”). In Browning v. Colvin, 766 F.3d 702 (7th Cir.
2014), the Seventh Circuit found a number of errors in the ALJ’s analysis, one of which was the
failure to analyze obesity. The Seventh Circuit’s explanation is worth quoting at length:
There is more that’s wrong with the administrative law judge’s decision,
including his failure, which continues to be endemic in the Social Security
Administration’s disability adjudications despite our frequent criticisms of it
(most recently in [Goins]), to consider the bearing of obesity, even when not itself
disabling, on a claimant’s ability to work. In determining disability an
administrative law judge must consider the combined effects of the applicant’s
impairments. A regulation of the Social Security Administration, 20 C.F.R. §
404.1523, states that “we will consider the combined effect of all of your
impairments without regard to whether any such impairment, if considered
separately, would be of sufficient severity.” []
The administrative law judge acknowledged that the plaintiff’s obesity was a
factor in her leg pain, but did not discuss its bearing on her ability to do sedentary
work. Remember that she’s almost morbidly obese. This might make it difficult
for her to sit for long periods of time, as sedentary work normally requires.
Presumably she could get up from her work table from time to time, but that
might be painful given her obesity—the sheer weight she must lift—and her leg
pain, which is aggravated by standing, since standing requires her legs to support
her great weight. We don’t want to play doctor ourselves; but the likely
difficulties that morbidly obese persons (and the plaintiff is almost morbidly
obese) face even in doing sedentary work are sufficiently obvious to have
required the administrative judge to instruct the consulting physician to consider
the potential effect of the plaintiff’s obesity on her ability to do sedentary work.
Id. at 706-07 (emphasis in original). 1

1

In Browning, the claimant was five feet six inches tall and weighed 240 pounds,
resulting in a body mass index that—as the Seventh Circuit noted several times—was “very
close” to the morbidly obese category. 766 F.3d at 704. In Goins, the claimant was five feet six
inches tall and weighed 250 pounds. 764 F.3d at 679. Here, plaintiff at the time of the hearing
was five feet five inches tall and weighed 280 pounds, putting her in the morbidly obese
category.
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The government acknowledges that the ALJ failed to provide an explicit analysis. But the
government argues that this failure was harmless because the ALJ relied on Dr. Karri, who
explicitly considered plaintiff’s obesity. In some cases, the Seventh Circuit has held that an
ALJ’s failure to discuss obesity is harmless when “the ALJ indirectly took obesity into account
by adopting limitations suggested by physicians who were aware of or discussed [the claimant’s]
obesity.” Arnett, 676 F.3d at 593 (citing Prochaska v. Barnhart, 454 F.3d 731, 736-37 (7th Cir.
2006) and Skarbeck v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004)). However, in reviewing the
pages in Dr. Karri’s reports that the government relies on (R. 692, 721), this Court notes that
they merely include a listing of plaintiff’s current weight, which does not suggest that obesity
was explicitly considered. Here, many of the same considerations that the Seventh Circuit
discussed in Browning are present, such as the possible effect plaintiff’s weight may have had on
her ability to sit for long periods and also on her ability to alleviate such problems by getting up
to stand. 2 It is possible on remand, as the government now suggests for the first time on appeal,
that the ALJ will conclude that the limitations due to plaintiff’s obesity are already sufficiently
accounted for. Perhaps that is so, but on this record, the Court is not so confident that it is willing
to apply the harmless error doctrine. If, on remand, the ALJ believes that the RFC’s limitations
incorporate plaintiff’s obesity, then the ALJ should explain her reasoning. See Arnett, 676 F.3d at
593 (“If the ALJ thought Arnett’s obesity has not resulted in limitations on her ability to work,
he should have explained how he reached that conclusion.”). Again, the ALJ’s erroneous obesity

2

The Court is a bit uncomfortable coming close to the line of “playing doctor” in this
regard. But because the Seventh Circuit asserts that this point is “sufficiently obvious,” so its
concern is somewhat assuaged. A reader of numerous Social Security appeal decisions may
wonder how often the prohibition for even courts to play doctor is seemingly ignored. But again,
in conducting this analysis, this Court is merely applying the Seventh Circuit’s analysis.
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analysis, standing alone, would not be sufficient to require remand. But in conjunction with the
other errors identified below, remand is necessary.
Depression. Plaintiff argues that the ALJ failed to fully consider her depression. It is
undisputed that the ALJ considered plaintiff’s depression at Step Two, finding that she had no
limitations in the four paragraph B criteria needed for a Section 12 listing. The ALJ found that
plaintiff was able to conduct a broad range of daily activities and interacted socially. Plaintiff is
not challenging this portion of the ALJ’s ruling. 3
Instead, she argues that the ALJ in the RFC analysis did not account for a specific
manifestation of her depression – namely, memory problems. She notes that the two agency
psychologists—Drs. Peggau and NieKamp—found she had at least some memory problems.
This Court agrees with plaintiff that the ALJ failed to properly address this issue. In the
narrative portion of the ALJ’s decision, the entirety of plaintiff’s memory problems consists of
the following: “[H]er memory seemed intact with respect to immediate and remote recall of
factual information and events although she had some problem with the serial 7 test.” R. 24.
With regard to plaintiff’s memory problems caused by depression, the record is far more
compelling. To summarize, in May 2008, plaintiff was interviewed by Dr. John L. Peggau who

3

The Court notes that the ALJ held that plaintiff had no limitation in daily activities
because “she is able to tend to personal care, clean the house, do laundry and sweeping, cook
simple meals, shop, handle funds, go to church, read a book, watch television, do Facebook and
email, and watch kids play football (Pee-Wee).” R. 25. The evidence suggests that some of the
activities were actually performed relatively infrequently. For example, plaintiff testified that the
last time she attended church was six months ago. She testified that she has no access to a
computer nor any internet connection (not even on her phone) and that “it’s been over months”
since she last checked her email. R. 63-65. It was unclear whether she ever used Facebook. The
only evidence this Court could find was an ambiguous, indirect question which plaintiff may
have believed was asking about internet usage in general. R. 65.This Court could find no
reference in any of the written forms completed by plaintiff that she used Facebook. With no
internet access, it seems unlikely she was doing so on any consistent basis. However, the ALJ
twice mentioned plaintiff’s Facebook usage to support the ruling.
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diagnosed her with dysthymic disorder and rated her GAF as 65. R. 483. He noted that plaintiff
was unable to complete the serial sevens subtraction test and was “well below average” in both
immediate and delayed recall. R. 482. In December 2010, plaintiff was interviewed by Dr.
David NieKamp, who diagnosed her with moderate depression and anxiety and rated her GAF as
50. R. 732. Dr. NieKamp stated that her memory “seemed intact with respect to immediate and
remote recall of factual information and events,” but at the same time he noted that she had
problems with the serial sevens test, which he stated was “likely due to interference from her
depression and anxiety.” R. 731-32.
Comparing the ALJ’s brief mention of memory problems at Step Two with the medical
records discussed above reveals a significant conflict. In her summary of Dr. Peggau’s report, the
ALJ only obliquely referred to the issue, stating only that “[r]eportedly, claimant had memory
problems,” but omitting that Dr. Peggau found that plaintiff failed the serial sevens test and was
well below average in both short-term and long-term memory. R. 24. In her summary of Dr.
NieKamp’s report, the ALJ acknowledged that he found plaintiff had problems with the serial
sevens test, but the ALJ omitted the doctor’s explanation that this was attributable to her
depression. Id. Aside from this summary of the two reports, the ALJ never analyzed the alleged
memory problems. Moreover, and importantly, there is no evidence that the ALJ considered or
incorporated plaintiff’s undisputed memory problems into the RFC.
Nor did the ALJ acknowledged evidence directly from plaintiff. In two Function Reports
(Exs. 4E and 14E), reports which the ALJ elsewhere relied on (R. 25), plaintiff stated that she
had problems with memory and focus. See R. 283 (she “easily forget[s],” “loses focus,” is
“unable to concentrate,” her “mind wanders,” and she is “unable to understand some
instruction”); R. 221 (she could remember “more things” before her impairment). At the hearing,

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she testified that because of her memory problems she has to write things down and that after she
leaves the hearing she “may not be able to tell you what you said to me.” R. 69-70.
In sum, because the ALJ never explicitly analyzed this issue in determining plaintiff’s
RFC, the Court cannot be sure that the ALJ fully considered it—or even considered it at all. The
Court recognizes that the evidence is varied with Dr. NieKamp viewing plaintiff’s memory
problems as less serious than Dr. Peggau apparently viewed them. Still, Dr. NieKamp believed
that the problem with the serial sevens tests was attributable to her depression, which is the
argument plaintiff is now making. As plaintiff points out, the question of her memory is
important because the ALJ found that she was able to do semi-skilled work with no limitations.
The ALJ failed to build a logical bridge from the evidence in the record regarding plaintiff’s
memory problems to her RFC. See Young v. Barnhart, 362 F.3d 995, 1002 (7th Cir. 2004) (“If
the ALJ meant to capture all of [claimant’s] . . . problems within this RFC, he has failed to build
the ‘accurate and logical bridge from the evidence to his conclusion so that, as a reviewing court,
we may assess the validity of the agency’s ultimate findings and afford meaningful judicial
review.’”).
Carpal Tunnel Syndrome. Plaintiff argues that the ALJ failed to fully consider her
carpal tunnel limitations. Although the ALJ considered this issue to some extent, the Court
agrees with plaintiff that the ALJ did not properly consider the evidence supporting plaintiff.
The ALJ stated in the credibility portion of the opinion: “The claimant had right carpal
tunnel surgery but good recovery and full use of the right hand per the consultative physician
(Exhibit 20F). There are no documented left hand disorder or limitations of significance per
Exhibit 20F and 23F.” R. 27. In the RFC portion of the opinion, the ALJ summarized the
evidence—specifically, noting that in 2007, electrodiagnostic testing first confirmed that she

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carpal tunnel syndrome in both arms, although it was more prominent in the right one; that
similar tests were performed in February 2010 showing that there had no improvement; and that
she had carpal tunnel surgery on the right wrist in March 2010 followed by physical therapy. R.
28. After summarizing this evidence, the ALJ noted that later in the year, in September and
December 2010, plaintiff was seen by the agency’s consultative examiner, Dr. Roopa Karri, who
noted on one occasion that plaintiff’s grip strength was normal and on the other occasion it was
4/5 in both hands. Dr. Karri also noted that plaintiff could make a fist and tie her shoes. R. 28-29.
Based on the reports from these two visits with Dr. Karri, the ALJ concluded that the surgery on
the right wrist was successful and that plaintiff had no problems with the left wrist.
The ALJ’s conclusion fails to acknowledge significant contrary evidence. To start with,
plaintiff has consistently complained about the pain, numbness, and limitations in both wrists. In
written submissions, she described these problems. See R. 229 (“left arm pains all the time
[when reaching overhead] and at night it hurts worst, will have to use the right hand to help lift
my arm or move it”); R. 277 (“I have to keep my hand down by my waist [when sleeping] to
prevent numbness.”). At the hearing in November 2011, she testified that she still had numbness
and pain in both hands, although the pain in the left arm was not as severe as in the right wrist. R.
70.
Although the ALJ relied on the consultative examiner’s reports, the ALJ did not give
much attention to the medical records submitted by Dr. Steven Milos, who performed the surgery
on her right wrist. In 2010, Dr. Milos viewed the electrodiagnostic tests from 2007 and ordered
that they be repeated. The new tests confirmed that that plaintiff still had bilateral carpal tunnel
syndrome. Dr. Milos wrote that plaintiff “continues to have symptoms in both hands.” R. 580.
He also performed in-office tests to confirm the diagnosis, including a nerve compression test

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and a test known as Phalen’s maneuver. Dr. Milos found that the results for the left hand were
“similar” to those for the right hand, and he recommended surgery on both wrists: “We will start
with the right side since that is the most severe and then allow her six weeks of therapy before
we proceed switch the left.” R. 581. 4
After surgery, plaintiff continued to experience pain in both hands. Eight days after the
surgery, plaintiff saw a physical therapist who noted:
She presents with complaints of pain with a pain scale of 9/10 in the right wrist.
She reports sometimes pain goes up to her forearm and shoulder and describes a
shooting pain just like a ‘thunderous shot’ on her fingers. Condition started four
years ago and pain aggravated with her work. Condition worsens when keeping
her hands up as well. She reports she also had the same condition in the left wrist
and still undecided yet if she will undergo surgery.
R. 586. A report a month later indicates some improvement but still pain. R. 585. Unfortunately,
at this point, the record does not contain any follow-up visits and there is no objective evidence
to confirm, one way or another, whether plaintiff’s pain improved. In short, there is no evidence
from the records of Dr. Milos that the surgery was successful.
Although the ALJ relied on two reports from Dr. Karri in late 2010 to suggest that the
surgery was successful, these reports are not nearly as compelling as the ALJ made them out to
be. In both reports, Dr. Karri noted that plaintiff was still reporting pain, numbness, and tingling
in both hands, that she felt the surgery did not work because her right hand was “not better,” and
that she still felt she needed surgery on the left hand. R. 692. Also, in the “impressions” section
at the end of the reports, Dr. Karri listed bilateral carpal tunnel syndrome as one of plaintiff’s
ongoing problems. Dr. Karri never indicated in these two reports that she doubted plaintiff’s
claim that the pain continued in both wrists. It is true that she observed that plaintiff had normal
4

He also noted that, since 2007, plaintiff had tried conservative treatments such as antiinflammatories, bracing, exercises, and therapy and that they did not work (the bracing actually
making symptoms worse). R. 578.
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grip strength on one occasion and 4/5 strength on the other, but Dr. Karri never indicated that
this one test meant that the surgery was successful, nor that she doubted plaintiff’s claims about
pain. 5
Standing alone, the ALJ’s error regarding plaintiff’s carpal tunnel syndrome would not be
sufficient for remand. However, in conjunction with the other errors, remand is necessary.
Boils. Plaintiff argues that the ALJ failed to consider that she had painful boils
(sometimes referred to as absecces) in her groin and other areas that caused pain while sitting
and that would sometimes burst creating an embarrassing smell and making it harder for her to
go to work. To support this claim, plaintiff in her opening brief cited to the following: (i) an
undated form completed by plaintiff: “I cannot sit very long because of the boils” (R. 203); (ii) a
September 17, 2007 progress note from Dr. Denise A. McGuffin: “BOILS: returned in 7/07. in
groin and vaginal area. uncomfortable to sit since then and sometimes hard to walk.”) (R. 600);
(iii) plaintiff testified that while sitting she must keep moving to avoid pain (R. 58); (iv) a March
24, 2008 form completed by plaintiff: “not able to stand or walk for any length of time and the
odor when the [boils] burst – smells” (R. 225); (v) an April 17, 2008 phone interview with
plaintiff’s sister: “recurrent boils since childhood” which seemed to “have some genetic
etiology” and which worsened the last two or three years whereas before they were only episodic
(R. 240); and (vi) Dr. Karri’s September 9, 2010 report: “Boils in the axillary areas” (R. 694).
The ALJ discussed none of this evidence and, in fact, never mentioned boils or absecces
at all in her opinion. The issue also never came up at the hearing. The government argues that the

5

As noted, Dr. Milos performed a test known as Phelan’s maneuver and median
compression nerve test. It is not clear exactly what role grip strength plays in the carpal tunnel
diagnosis, and how it relates to the diagnostic tests used by Dr. Milos.
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ALJ was justified in ignoring this issue because, essentially, plaintiff dropped the ball. At the
hearing, the ALJ did not ask plaintiff about her boils, but she did ask the following question:
Q.

All right. Is there anything else you want to tell me today?

A.

As far as?

Q.

Medical problems, complaints, something we didn’t touch on?

A.

No. Seem[s] like you touched on basically everything.

R. 65-66. Plaintiff’s counsel then asked additional questions, but he also never referred to boils,
nor did plaintiff ever raise the issue on her own. 6
In light of these facts, it is hard to fault the ALJ for not discussing the issue. A likely
explanation is that the ALJ concluded that even if plaintiff previously had problems with boils,
she was not currently experiencing problems. This would not be an unreasonable assumption
based on the record. The evidence summarized above suggests that the problem, although
potentially serious at times, was episodic and treatable with antibiotics, and plaintiff’s evidence
all pre-dates the hearing by at least a year. 7 There is also evidence in the record suggesting that
the boils may not have been an issue at the time of the hearing. See, e.g., R. 722-23 (Dec. 14
2010 report from Dr. Karri which no longer lists boils in the list of problems and which states:
“SKIN: no evidence of rash or neoplasia.”); see also R. 746. Still, all things considered, it would
have been better if the ALJ clarified matters at hearing. The Court recognizes that this ailment,
like obesity, is one that is potentially difficult for a claimant to discuss at a hearing. The Court
therefore encourages the ALJ on remand to specifically ask plaintiff about them. In sum, if this

6

After the hearing, plaintiff’s counsel (different from current counsel) filed a 17-page
brief to the Appeals Council. Ex. 24E. This brief listed at least 18 impairments (R. 338), but
insofar as this Court can tell, never once mentioned boils or abscesses.
7
Plaintiff testified at the hearing that she had a problem sitting, but she never indicated
that it was caused by boils.
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were the only issue, this Court would not order a remand. But given that the case will be
remanded on other grounds, the ALJ should address it explicitly.
Back Pain. Plaintiff argues that the ALJ erroneously found that plaintiff did not have a
back impairment. The Court finds that the ALJ’s explanation is sufficient. The ALJ discussed
this issue at Step Two and explained that, as part of an emergency room visit in September 2010,
doctors found no problems with plaintiff’s back after conducting a musculoskeletal examination.
The ALJ also noted that plaintiff had not received treatment or diagnosis of a back disorder.
Plaintiff does not discuss this evidence nor challenge the ALJ’s reasoning on these points.
Instead, plaintiff points to two earlier pieces of evidence: (i) a statement in a June 2008 report by
consultative examiner Towfig Arjmand that plaintiff had reduced range of motion “of some
joints, including the knee, ankle, wrist, and lumbar spine” (R. 514) and (ii) a June 14, 2007 CT
scan stating, among other things, that there was degenerative change in the thoracic spine (R.
388). There is nothing in these reports, however, suggesting that these observations (which were
two years earlier than the evidence relied on by the ALJ) were considered significant by these
doctors. For example, Dr. Arjmand did not find that the limited range of motion translated into
any significant postural limitations. There is no evidence that any doctor accorded significance to
the CT scan, one that was focused on possible lung problems. As the ALJ noted, plaintiff never
pursued any treatment nor received any formal diagnosis. For these reasons, the Court finds that
the ALJ’s failure to discuss this evidence does not support a remand. See Curvin v. Colvin, 778
F.3d 645, 650 (7th Cir. 2015) (the ALJ does not have to discuss every piece of evidence in the
written opinion).
Credibility Determination. Plaintiff finally argues that the ALJ’s credibility
determination is “indecipherable,” and “cryptic.” The ALJ stated, generally, that plaintiff’s

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testimony was “credible but not persuasive.” R.27. The ALJ then referred to several issues,
including that plaintiff started using a cane recently but that it was not prescribed, that the
treatment for her joint pain was over-the-counter Tylenol, and that there was no documentation
that she had a left hand disorder.
This Court agrees with plaintiff that this explanation is not clear. Indeed, the Court has
given a great deal of thought as to what the ALJ could have meant by stating that plaintiff was
“credible but not persuasive.” 8 At a basic level, this Court cannot tell whether the ALJ believed
plaintiff’s testimony. On the one hand, the ALJ stated that her testimony was credible. But then
the ALJ cited to certain facts—such as the “recent” use of a case—suggesting she may have
believed plaintiff was exaggerating her limitations. This makes it difficult to tell whether, and to
what extent, the ALJ discounted her testimony (and if the ALJ discounted the testimony, why
she would say plaintiff was credible). The ALJ also stated in this credibility discussion that there
was no documented disorder of the left hand. R. 27. However, as discussed above, this
conclusion is not supported by the evidence from Dr. Milos. A mistaken belief about the facts
cannot serve as a basis for an adverse credibility determination. See Pierce v. Colvin, 739 F.3d
1046, 1050 (7th Cir. 2014) (remanding because the ALJ’s credibility determination “misstated
some important evidence and misunderstood the import of other evidence”); Allord v. Barnhart,
455 F.3d 818, 821 (7th Cir. 2006) (an ALJ may not base a credibility determination on “errors of
fact or logic”).
*

*

8

*

If this phrase were contained in a discussion going to the weight of the evidence, then
one could read this phrase to mean that the ALJ believed plaintiff (i.e., she was credible) but
even believing the testimony, plaintiff had not met her burden of proof (i.e., she was not
persuasive). But because this phrase is specifically located in the discussion of credibility, the
phrase is nonsense. If plaintiff were “credible,” then she was believable, which would make her
persuasive.
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To conclude, the RFC analysis on remand should consider all these issues in
combination. Plaintiff’s testimony is central to these issues. This is not a case where there is one
clear ailment. Plaintiff’s case rests more on the accumulated impact of multiple ailments and
whether she could, even with a sit-stand option of one minute every hour, consistently sit and
concentrate for eight hours in a semi-skilled job and also whether she could regularly show up
for work. Her testimony on these points was not always clear. Specifically, it was not clear how
long she could sit, whether her weight would make the sit-stand option feasible (a concern the
Seventh Circuit raised in Browning), and whether she would need to lie down for any significant
periods. In both her testimony and written submissions, she stated that she spent good portions of
the day lying down. It is not clear whether this was by choice or was to alleviate pain. See R. 61
(stating that she lies down during the day “[b]ecause I get tired of sitting up”). Given that the
vocational expert testified that she could not work if she had to lie down 20% of the day, this is
an issue that should be also be addressed on remand.
CONCLUSION
For all the above reasons, plaintiff’s motion for summary judgment is granted, the
government’s motion is denied, and this case is remanded for further proceedings.

Date: September 8, 2015

By:
___________________________
Iain D. Johnston
United States Magistrate Judge

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