Rinderer v. Colvin

Filing 32

MEMORANDUM AND OPINION. The final decision of the Commissioner is reversed and remanded pursuant to sentence four of 42 U.S.C. §405(g). The Clerk of Court is directed to enter judgment in favor of plaintiff. Signed by Magistrate Judge Clifford J. Proud on 6/11/2015. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DOLLATINE E. RINDERER,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

Civil No. 14-cv-828-CJP 1

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Dollatine E. Rinderer seeks
judicial review of the final agency decision denying her application for Disability
Insurance Benefits (DIB) and Supplemental Security Income (SSI) benefits
pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for benefits in July, 2010, alleging disability beginning on
May 30, 2009. (Tr. 24). After holding an evidentiary hearing, ALJ William L.
Hafer denied the application on September 25, 2012. (Tr. 24-34). The Appeals
Council denied review, and the decision of the ALJ became the final agency
decision.

(Tr. 9).

Administrative remedies have been exhausted and a timely

complaint was filed in this Court.
Issues Raised by Plaintiff
This case was referred to the undersigned for final disposition on consent of the parties, pursuant
to 28 U.S.C. §636(c). See, Doc. 24.

1

1

Now represented by counsel, plaintiff raises the following points:
1.

Plaintiff was not represented at the agency level, and the ALJ failed to
fully and fairly develop the record.

2.

The ALJ failed to address plaintiff’s sleep apnea.

3.

The ALJ failed to account for limitations arising from plaintiff’s
migraine headaches, neuropathy in her hands, knee pain, obesity, and
need to use a cane.
Applicable Legal Standards

To qualify for DIB or SSI, a claimant must be disabled within the meaning of
the applicable statutes. 2 For these purposes, “disabled” means the “inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. §423(d)(1)(A).
A “physical or mental impairment” is an impairment resulting from
anatomical, physiological, or psychological abnormalities which are demonstrable
by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C.
§423(d)(3).

“Substantial gainful activity” is work activity that involves doing

significant physical or mental activities, and that is done for pay or profit. 20
C.F.R. § 404.1572.
2

The statutes and regulations pertaining to Disability Insurance Benefits (DIB) are found at 42
U.S.C. § 423, et seq., and 20 C.F.R. pt. 404. The statutes and regulations pertaining to SSI are
found at 42 U.S.C. §§ 1382 and 1382c, et seq., and 20 C.F.R. pt. 416. As is relevant to this case, the
DIB and SSI statutes are identical. Furthermore, 20 C.F.R. § 416.925 detailing medical
considerations relevant to an SSI claim, relies on 20 C.F.R. Pt. 404, Subpt. P, the DIB regulations.
Most citations herein are to the DIB regulations out of convenience.

2

Social Security regulations set forth a sequential five-step inquiry to
determine whether a claimant is disabled. The Seventh Circuit Court of Appeals
has explained this process as follows:
The first step considers whether the applicant is engaging in
substantial gainful activity. The second step evaluates whether an
alleged physical or mental impairment is severe, medically
determinable, and meets a durational requirement. The third step
compares the impairment to a list of impairments that are considered
conclusively disabling. If the impairment meets or equals one of the
listed impairments, then the applicant is considered disabled; if the
impairment does not meet or equal a listed impairment, then the
evaluation continues. The fourth step assesses an applicant's residual
functional capacity (RFC) and ability to engage in past relevant work. If
an applicant can engage in past relevant work, he is not disabled. The
fifth step assesses the applicant's RFC, as well as his age, education,
and work experience to determine whether the applicant can engage in
other work. If the applicant can engage in other work, he is not
disabled.
Weatherbee v. Astrue, 649 F.3d 565, 568-569 (7th Cir. 2011).
Stated another way, it must be determined: (1) whether the claimant is
presently unemployed; (2) whether the claimant has an impairment or combination
of impairments that is serious; (3) whether the impairments meet or equal one of
the listed impairments acknowledged to be conclusively disabling; (4) whether the
claimant can perform past relevant work; and (5) whether the claimant is capable of
performing any work within the economy, given his or her age, education and work
experience. 20 C.F.R. § 404.1520; Simila v. Astrue, 573 F.3d 503, 512-513 (7th
Cir. 2009).
If the answer at steps one and two is “yes,” the claimant will automatically be
found disabled if he or she suffers from a listed impairment, determined at step
three. If the claimant does not have a listed impairment at step three, and cannot
3

perform his or her past work (step four), the burden shifts to the Commissioner at
step five to show that the claimant can perform some other job. Rhoderick v.
Heckler, 737 F.2d 714, 715 (7th Cir. 1984). See also, Zurawski v. Halter, 245
F.3d 881, 886 (7th Cir. 2001) (Under the five-step evaluation, an “affirmative
answer leads either to the next step, or, on Steps 3 and 5, to a finding that the
claimant is disabled…. If a claimant reaches step 5, the burden shifts to the ALJ to
establish that the claimant is capable of performing work in the national
economy.”).
This Court reviews the Commissioner’s decision to ensure that the decision
is supported by substantial evidence and that no mistakes of law were made. It is
important to recognize that the scope of review is limited. “The findings of the
Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g). Thus, this Court must
determine not whether Ms. Rinderer was, in fact, disabled at the relevant time, but
whether the ALJ’s findings were supported by substantial evidence and whether
any errors of law were made. See, Books v. Chater, 91 F.3d 972, 977-78 (7th Cir.
1996) (citing Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995)).
The Supreme Court has defined “substantial evidence” as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 91 S. Ct. 1420, 1427 (1971).

In reviewing for “substantial

evidence,” the entire administrative record is taken into consideration, but this
Court does not reweigh evidence, resolve conflicts, decide questions of credibility,
or substitute its own judgment for that of the ALJ. Brewer v. Chater, 103 F.3d
4

1384, 1390 (7th Cir. 1997). However, while judicial review is deferential, it is not
abject; this Court does not act as a rubber stamp for the Commissioner. See,
Parker v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010), and cases cited therein.
The Decision of the ALJ
ALJ Hafer followed the five-step analytical framework described above. He
determined that plaintiff had worked part-time since the alleged onset date, but her
work did not rise to the level of substantial gainful employment. She was insured
for DIB through June 30, 2015. He found that plaintiff had severe impairments of
degenerative arthritis of the knees, obesity, migraine headaches, and peripheral
neuropathy. He further determined that plaintiff’s impairments do not meet or
equal a listed impairment.
The ALJ found that plaintiff had the residual functional capacity (RFC) to
perform work at the sedentary exertional level, with a number of physical
limitations. Based on the testimony of a vocational expert, the ALJ found that
plaintiff was not able to do her past relevant work. She was, however, not disabled
because she was able to do other jobs which exist in significant numbers in the local
and national economies.
The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order. The following summary of the record
is directed to the points raised by plaintiff and is confined to the relevant time
period.
1.

Agency Forms
5

Plaintiff was born in 1966, and was 42 years old on the alleged onset date.
(Tr. 145).
Plaintiff worked in the past as a front desk clerk in a hotel, a manager at a pay
day loan company, and a team leader for a retail demonstration company. She
completed two years of college. (Tr. 151).
Plaintiff submitted a Function Report in September, 2010, in which she
stated that she lived with her daughter, who did most of the household chores.
Plaintiff did some dusting, laundry and dishes, but she took breaks when she
needed to. Neuropathy caused swelling in her feet and numbness in her hands.
She had migraine headaches about 4 times a month. When she had a migraine,
she became sick to her stomach and had to lie down for several hours. She said
that she had difficulty with activities such as sitting, standing, walking, and using
her hands. She had surgery on her left knee in July, 2009, and still wore a brace
on her left knee. She sometimes used a cane when she walked. (Tr. 170-183).
In December, 2010, plaintiff reported that her neuropathy had gotten worse,
and she was having more frequent migraine headaches. (Tr. 208). In January,
2011, plaintiff reported that, on some days, she had trouble walking without a cane
and a brace on her left knee. She had started having tremors in her hands and
legs. Her feet and hands were swollen. She took a number of medications which
made her sleepy. (Tr. 226-233).
In June, 2011, plaintiff reported that she had lost her insurance coverage.
The pain in her knees and swelling in her feet were worse, and her doctor told her
this would happen until she was able to get her medications. (Tr. 247).
6

2.

Evidentiary Hearing

Ms. Rinderer was not represented by an attorney at the evidentiary hearing
on September 12, 2012.

The ALJ explained to her that she had a right to

representation. She told him that she had tried to find a lawyer, but no one would
take her case because she had been unable to continue seeing a doctor or getting
medications. She had no money for doctors. She was working 6 to 18 hours a
week and was “[b]arely able to keep a roof over [her] head if it wasn’t for a friend. .
. .” (Tr. 57-62).
Plaintiff was 6’ tall and weighed about 295 pounds. She was working for a
company as an “event specialist,” which meant that she demonstrated products or
handed out samples of food in stores. Without medications, by the end of the day,
she was hurting so badly that she could barely walk. She had not been able to get
prescription pain medication since she lost her medical card (i.e., Medicaid
coverage) in February, 2011. (Tr. 64-67).
She was also out of migraine medication. She had been to the emergency
room in Chester, Illinois, for a migraine a couple of months before the hearing.
(Tr. 68). She had numbness and swelling in her feet because of neuropathy.

Her

neuropathy was diagnosed in 2003. She had been able to work while she was
taking medication (Neurontin and Lyrica.) (Tr. 71). She had a CPAP machine for
sleep apnea, but, when she lost her medical card, she had to give the CPAP machine
back.

She had more migraine headaches since she was not using the CPAP

machine. She was able to sleep only 3 or 4 hours a night. (Tr. 73). She had to
use a cane 4 or 5 times a month because, when her feet were swollen, she would
7

lose her balance. (Tr. 74).
In response to a question from the ALJ, Ms. Rinderer said she “probably
could” do a sedentary type job. She added, “The only problem is the neuropathy is
not just in my feet, it’s in my hands and it comes to points where I have difficulty
writing.” The ALJ then asked why she could not do a job that did not have “lots of
writing.” She answered that she had applied for jobs, but had “not even gotten a
call back.” She said she thought she could do such a job, but she had not been
able to find an employer willing to give her “a shot.” (Tr. 71-72).
A vocational expert (VE) also testified. The ALJ asked the VE a hypothetical
question which comported with the ultimate RFC assessment, that is, a person of
plaintiff’s age and work history who was able to do work at the sedentary exertional
level, limited to no more than 2 hours standing/walking, only occasional climbing of
stairs, stooping, crouching, kneeling, and crawling, with no climbing of ladders,
ropes or scaffolds.

She should never work at unprotected heights or around

dangerous machinery. The VE testified that this person could not do plaintiff’s
past work.
economy.

However, she could do other jobs in the national and regional
Examples of such jobs are hand packer (DOT 920.687-030) and

production worker assembler (DOT 559.687-034).

(Tr. 75-76).

Ms. Rinderer

questioned how many of those jobs were available in southern Illinois. (Tr. 77).
The ALJ asked Ms. Rinderer whether there was anything else she wanted to
say. She again stated that she had neuropathy in her hands and it “gets to the
point that my hands will draw up even into, like almost a clutch or a claw.” She
described the feeling as a “charley horse,” but more painful. (Tr. 77-78).
8

3.

Medical Treatment

Plaintiff received primary health care from the Marissa Medical Clinic. On
April 8, 2009, she was seen for chronic left knee pain. The doctor suspected
arthritis. She was taking medication for migraine headaches. She had been seen
in the emergency in the last week for a migraine. (Tr. 306). On April 28, 2009,
she said that she was doing product demonstrations at work and was on her feet a
lot. Her knee was giving out and she was falling. The doctor injected her knee.
(Tr. 305). On May 20, 2009, she complained of numbness and tingling going down
her arms into her hands. She had previously been diagnosed with peripheral
neuropathy. The doctor increased the dosage of Lyrica. (Tr. 304).
In September, 2009, she was seen at Marissa Medical Clinic for right knee
pain. (Tr. 298). In December, 2009, she complained of her left knee swelling and
“going out.” The doctor ordered physical therapy to help with her knee pain and
with weight loss. (Tr. 290-291). In January, 2010, she complained of a migraine
headache for 2 days. (Tr. 288). In June, 2010, it was noted that she needed a
sleep apnea machine. She had a body mass index of 40. (Tr. 284-285).
In November, 2009. Plaintiff was seen by Dr. Barta, a neurologist, for
migraine headaches. She had a history of migraine headaches since the age of 21.
She had recently had a lot of stress in her life, and had been having daily headaches.
She had been taking Topamax. Dr. Barta noted that she had decreased sensation
in her lower extremities in a stocking pattern.

She increased the dosage of

Topamax and ordered a CT scan of the brain. She noted that plaintiff’s peripheral
neuropathy was stable on Lyrica. (Tr. 277-278). The CT scan was normal. (Tr.
9

525). In January, 2010. Plaintiff told a physical therapist that her headaches had
increased in frequency since September, 2009, and that she was having 1 headache
a week that lasted for 3 or 4 days. (Tr. 441). Another neurologist in Dr. Barta’s
office saw her in April, 2010, for increased migraine headaches. He continued
Topamax and substituted Imitrex for Maxalt. He also continued Lyrica for her
neuropathy. (Tr. 276).
Plaintiff went to the emergency room for migraine headaches on March 4,
2010, and April 14, 2010.

(Tr. 356-358, 428-429).

She again went to the

emergency room for a migraine headache a week later. (Tr. 365-367).

She went

to the emergency room on July 7, 2010, for a migraine headache that had started
on July 3. (Tr. 375-377).
Ms. Rinderer was treated by Dr. Tony Chien, an orthopedic specialist, for her
knee pain. On May 29, 2009, she complained of left knee pain and “giving way,”
present since March of 2007, but gradually worsening. Dr. Chien noted effusion in
the left knee. A 2007 MRI showed a small tear of the medial meniscus. Dr. Chien
recommended arthroscopic surgery.

(Tr. 410-412).

The surgery was done in

July, 2009. (Tr. 483-484). At a postoperative visit in September, 2009, plaintiff
complained of a pressure sensation over her left knee and stiffness of the left knee.
She also complained of pain, catching, and giving way of her right knee. Dr. Chien
noted effusion in both knees. Her gait was normal. He ordered an MRI of the
right knee to rule out internal derangement. (Tr. 407-408). The MRI showed
severe erosive patellofemoral chondromalacia of the right knee. Dr. Chien gave
her a corticosteroid injection in October, 2009. In March, 2010, she continued to
10

have pain in both her knees. X-rays showed joint space narrowing and osteophyte
formation in both knees.

Dr. Chien gave her corticosteroid injections in both

knees. (Tr. 401). She returned to him July, 2010, complaining of constant dull
aching pain with intermittent sharp pain in both knees, worse in the left knee. Her
pain was worse with activity and she had been unable to find a desk job. On exam,
she had an antalgic gait.

There was pain with palpation in both knees, and

effusion in both knees. Dr. Chien wrote that he had “a lengthy discussion with the
patient regarding her treatment options. The patient is still too young to have total
knee arthroplasty.”

He again gave her corticosteroid injections in both knees.

(Tr. 399-400).
In October, 2010, plaintiff was seen by Dr. Stephen Burger, a neurologist, for
worsening neuropathic pain and paresthesias in her arms and feet, along with
worsening migraine headaches. He said that there were “no interval changes in her
neurological exam.”

He increased the dosage of Topamax to address her

headaches, and increased the dosage of Lyrica to address her neuropathic pain.
(Tr. 586). She returned in December, 2010, complaining of tremors. Dr. Burger
wrote that he did not “necessarily see any difference in her examination” and that
“[p]erhaps, she has a mild resting tremor.” He did not think any new medical
intervention was needed. (Tr. 585).
Analysis
“While a claimant bears the burden of proving disability, the ALJ in a Social
Security hearing has a duty to develop a full and fair record.” Nelms v. Astrue, 553
F.3d 1093, 1098 (7th Cir. 2009). Where, as here, the claimant is unrepresented,
11

the ALJ’s duty is “enhanced” such that the ALJ is required to “‘scrupulously and
conscientiously [ ] probe into, inquire of, and explore for all the relevant facts.’ ”
Ibid., citing Thompson v. Sullivan, 933 F.2d 581, 585 (7th Cir.1991). Further,
social security proceedings at the agency level are not adversarial proceedings. 20
C.F.R. §404.900(b).

See also, Richardson v. Perales, 91 S. Ct. 1420, 1428

(1971)(“We bear in mind that the agency operates essentially, and is intended so to
do, as an adjudicator and not as an advocate or adversary.

This is the

congressional plan.”)
Now represented by counsel, plaintiff argues that the ALJ failed in his duty to
develop the record.
The entire transcript of the evidentiary hearing is only 24 pages long. Aside
from the discussion regarding plaintiff’s right to representation, plaintiff’s
testimony was 11 pages long. (Tr. 63-74). Plaintiff argues that the ALJ gave short
shrift to her attempts to explain that she had pain and limited ability to use her
hands because of neuropathy. The Court agrees.
Ms. Rinderer referenced her difficulties in using her hands at two points in
her testimony. The first time, the ALJ’s response was to ask her why she could not
do a sedentary job that did not include a lot of writing. (Tr. 71-72). The second
mention was at the end of the hearing. After the ALJ asked the VE a hypothetical
question that did not include any limitations in the use of her hands, the ALJ asked
plaintiff if there was anything else she would like to say. Ms. Rinderer volunteered
testimony indicating that her hands “draw up” and it feels like they have “charley
horses,” but more painful.

Rather than ask any follow-up questions, the ALJ
12

ended the hearing. (Tr. 77-78).
The ALJ and the Commissioner’s brief point out that plaintiff testified that
she could do a sedentary job. See, Tr. 31 & Doc. 29, pp. 11-12. Ms. Rinderer did
testify that she “probably could” do a sedentary job, but she also pointed out that
neuropathy caused problems using her hands and it “comes to points where I have
difficulty writing.” The ALJ did not ask any follow-up questions about the kinds of
problems that plaintiff experienced with using her hands. If she had problems
using her hands to write, it is reasonable to suspect that she had problems using
her hands for other functions as well.
In addition, the ALJ failed to follow-up on plaintiff’s testimony that she had
recently been to the emergency room for migraine headaches.

This was

particularly important because she lost her Medicaid coverage in February, 2011,
and was no longer able to go the doctor or get prescription medications. (Tr.
67-68). The ALJ should have questioned plaintiff about whether she had any
other emergency room visits after she lost her Medicaid coverage and should have,
at the very least, obtained a copy of the record for the emergency room visit that
occurred a couple of months before the hearing. See, Nelms, 553 F.3d at 1099,
criticizing the ALJ for failing to probe plaintiff’s recent medical treatment and to
obtain recent medical records.
The Commissioner suggests that the ALJ sufficiently questioned plaintiff at
the hearing because he asked her at the end whether there was anything else she
wanted to say. Doc. 29, p. 11. However, this argument improperly puts the onus
on the unrepresented claimant to identify what information is relevant. Again, it
13

was the ALJ’s duty to fully and fairly develop the record.
Plaintiff argues that the failure to enquire more fully into her ability to use her
hands was harmful because a person with limited use of her hands could not do the
jobs testified to by the VE.

The Commissioner counters this argument by

suggesting that the ALJ was justified in finding that plaintiff had no limitations with
respect to using her hands. She points out that the ALJ found that plaintiff’s
neuropathy is “stable with medication.” Doc. 29, p. 12. Of course, this argument
ignores the fact that the evidence shows that Ms. Rinderer has been unable to afford
prescription medication since she lost her insurance coverage in February, 2011.
She also points to the opinions of the state agency consultants, but Dr. Oh’s report
was written before plaintiff lost her insurance, and Dr. Kim’s report, written in
March, 2011, gives no indication that he was aware that she could no longer obtain
prescription medication for neuropathy. See, Tr. 569-576, 623-625.
Plaintiff is correct that the jobs identified by the VE require either constant or
frequent use of the hands.

The VE identified two jobs: “hand packer” and

“production worker assembler.”

For hand packer, he gave a DOT number of

920.687-030. That number corresponds to a hand bander, which is described by
the DOT as a person who “wraps trademark bands around cigars.” Per the DOT,
that job requires constant reaching, handling and fingering.

For production

worker assembler, the VE gave a DOT number of 559.687-034. That number
corresponds to an egg processor. The DOT description of that job is as follows:
Removes virus-bearing fluid from fertile chicken eggs for use in
manufacturing vaccines, such as influenza vaccine: Saws end off egg,
using electric saw, and removes fetal membrane, using tweezers to
14

break sac containing viral fluid. Siphons fluid into sterilized and
labeled bottles for further processing. Sterilizes tweezers by dipping
them into antiseptic solution after each egg has been harvested.
Per the DOT, that job requires frequent reaching and handling. If, as she testified,
plaintiff has trouble using her hands to write, it is difficult to understand how she
could do jobs that require either constant handling and fingering or frequent
handling. In any event, the VE was not asked to assume that plaintiff had any
limitations in using her hands.
The Seventh Circuit has recently questioned the reliance of ALJs and VEs on
the Dictionary of Occupational Titles at step five of the sequential analysis. “A
further problem is that the job descriptions used by the Social Security
Administration come from a 23–year–old edition of the Dictionary of Occupational
Titles, which is no longer published, and mainly moreover from information from
1977 – 37 years ago. No doubt many of the jobs have changed and some have
disappeared. We have no idea how vocational experts and administrative law judges
deal with this problem.” Browning v. Colvin, 766 F.3d 702, 709 (7th Cir. 2014).
In Browning, as here, the VE testified that the hypothetical person could do
the job of hand packer, and gave a DOT number of 920.687-030. The Seventh
Circuit pointed out that there is no occupational title designated as “hand packer”
in the DOT, and that the closest category appears to be “hand packager.”
Browning, 766 F.3d at 708. A copy of the job description of hand packager is
attached as an appendix to the Browning decision; the job of hand packager is
performed at the medium exertional level and is obviously not suitable for a person
with an RFC of a limited range of sedentary work.
15

Browning also questioned the basis for the VE’s testimony as to the number
of jobs available in the local, regional and national economy. “There is no official
source of number of jobs for each job classification in the Dictionary of
Occupational Titles, and while there are unofficial estimates of jobs in some
categories, the vocational experts do not in general, and the vocational expert in this
case did not, indicate what those data sources are or vouch for their accuracy.”
Browning, 766 F.3d at 709.
Here, the VE testified that there are about 2,000 “hand packer” jobs in
Illinois, and about 32,000 in the nation. He testified that there are about 1,000
“production worker assembler” jobs in Illinois and about 14,000 in the nation.
Ms. Rinderer expressed some skepticism as to these numbers at the hearing. The
VE told her that “These are statewide numbers, you know.”

The ALJ then

observed that the ALJ had also given numbers for the national economy. The
ALJ did not question the VE at all as to the basis of the numbers. See, Tr. 77.
The ALJ did ask the VE whether he was “aware of any conflict” between his
testimony and the data in the DOT, and the VE replied “no.” However, “the DOT
does not contain information on which to base an estimate of the number of
available jobs of a particular kind.” Voigt v. Colvin, 781 F.3d 871, 879 (7th Cir.
2015). See also, Browning, 766 F.3d at 709.
The Commissioner bears the burden at step 5 of the sequential analysis of
establishing that the claimant can perform jobs that exist in the economy.
Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001).

In view of the fact that

plaintiff was unrepresented, the Court cannot say on this record that the evidence
16

was sufficient to support the Commissioner’s conclusion at step 5.
The Court also agrees that the ALJ failed to sufficiently explain his
conclusions regarding whether any limitations were caused by plaintiff’s migraine
headaches and, if so, how his RFC assessment accounted for those limitations.
RFC is “the most you can still do despite your limitations.”

20 C.F.R.

§1545(a). In assessing RFC, the ALJ is required to consider all of the claimant’s
“medically determinable impairments and all relevant evidence in the record.”
Ibid.
As was noted above, the ALJ did not follow up on plaintiff’s testimony that
she had been to the emergency room a few months before the hearing for a migraine
headache, and did not obtain those records. In analyzing the medical evidence, the
ALJ failed to note that plaintiff went to the emergency room for migraine headaches
on four occasions between March 4, 2010, and July 7, 2010.
365-367, 375-377, 428-429).

(Tr. 356-358,

Plaintiff still had Medicaid coverage during this

period. Thus, the emergency room visits during this period suggest that, even
while she was taking prescription medication, her migraines were not under
control. While he is not required to discuss every piece of evidence in the record,
the ALJ is not permitted to cherry-pick the record, ignoring evidence that
undermines his conclusion. Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir.
2014).
Further, the ALJ twice mentioned that CT scans of plaintiff’s head were
normal. See, Tr. 29, 30. However, diagnostic tests like MRI studies and CT scans
are performed to rule out other causes of headaches, such as tumors, and negative
17

results do not mean that the patient does not have migraine headaches or that the
headaches are not severe. Moon v. Colvin, 763 F.3d 718, 722 (7th Cir. 2014),
citing “Migraines: Tests and Diagnosis,”http:// www.mayoclinic.org/diseases
-conditions/migraine-headache/basics/tests-diagnosis/con–20026358.
This is not to say that the ALJ was required to find that Ms. Rinderer had
limitations arising from migraine headaches.

He was, however, required to

“explain his analysis of the evidence with enough detail and clarity to permit
meaningful appellate review.” Scrogham, 765 F.3d at 695, citing Briscoe ex rel.
Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). The ALJ found that Ms.
Rinderer’s migraine headaches were a severe impairment, but the Court is left in
the dark as to what limitations, if any, arose from those headaches or how the RFC
assessment accommodated those limitations.

“If a decision ‘lacks evidentiary

support or is so poorly articulated as to prevent meaningful review,’ a remand is
required.” Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012), citing Steele v.
Barnhart, 290 F.3d 936, 940 (7th Cir. 2002). See also, Stewart v. Astrue, 561
F.3d 679, 684 (7th Cir. 2009) (“[A] a denial of benefits cannot be sustained where
an ALJ failed to articulate the bases of his assessment of a claimant's impairment.”)
Lastly, the ALJ’s reliance on plaintiff’s ability to work part-time is
questionable. Plaintiff testified that she worked 6 to 18 hours a week and that,
without prescription pain medication, she was barely able to walk by the end of the
day. (Tr. 66). She testified that she had to work because she needed the income
and that she would be barely able to “keep a roof over [her] head” without the help
of a friend. (Tr. 66). The ALJ ignored this testimony. “The fact that [plaintiff]
18

pushed herself to work part-time and maintain some minimal level of financial
stability, despite her pain, does not preclude her from establishing that she was
disabled.” Roddy v. Astrue, 705 F.3d 631, 638 (7th Cir. 2013).
Because of the ALJ’s errors, this case must be remanded. The Court wishes
to stress that this Memorandum and Order should not be construed as an
indication that the Court believes that Ms. Rinderer was disabled during the
relevant period or that she should be awarded benefits. On the contrary, the Court
has not formed any opinions in that regard, and leaves those issues to be
determined by the Commissioner after further proceedings.
Conclusion
The Commissioner’s final decision denying Dollatine E. Rinderer’s
application for social security disability benefits is REVERSED and REMANDED to
the Commissioner for rehearing and reconsideration of the evidence, pursuant to
sentence four of 42 U.S.C. §405(g).
The Clerk of Court is directed to enter judgment in favor of plaintiff.
IT IS SO ORDERED.
DATE:

June 11, 2015.

s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

19