Knorr v. Acting Commissioner of Social

Filing 22

MEMORANDUM AND OPINION. The Commissioner's final decision 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 11/17/2015. (klm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TRUDY KNORR,

)
)
)
)
)
)
)
)
)
)
)

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

Case No. 14-cv-1378-CJP 1

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Trudy Knorr is before the
Court, represented by counsel, seeking review of the final decision of the
Commissioner of Social Security denying her Disability Insurance Benefits
(DIB).
Procedural History
Plaintiff applied for DIB on November 28, 2011. In her application she
alleged disability beginning on July 10, 2010. (Tr. 19, 21). After holding an
evidentiary hearing, Administrative Law Judge (ALJ) Anne Sharrard denied the
application in a decision dated September 16, 2013. (Tr. 12-23). Plaintiff’s
request for review was denied by the Appeals Council, and the decision of the

This case was assigned to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. §636(c). See, Doc. 12.
1

1

ALJ became the final agency decision. (Tr. 1). Administrative remedies have
been exhausted and a timely complaint was filed in this Court.
Issues Raised by Plaintiff
Plaintiff raises the following point:
1. The ALJ failed to properly consider fibromyalgia at Step two of the
sequential evaluation.
Applicable Legal Standards
To qualify for DIB, a claimant must be disabled within the meaning of
the applicable statutes. 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.
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
2

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); Schroeter v.
Sullivan, 977 F.2d 391, 393 (7th Cir. 1992).
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 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
3

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 plaintiff 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, 402 U.S. 389, 401 (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 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,
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921 (7th Cir. 2010), and cases cited therein.
The Decision of the ALJ
ALJ Sharrard followed the five-step analytical framework described above.
She determined that plaintiff had not been engaged in substantial gainful
activity since the alleged onset date. The ALJ found that plaintiff had severe
impairments of cervical and lumbar degenerative disc disease, neuropathy,
migraine headaches, depression, and anxiety. (Tr. 21). The ALJ further
determined that these impairments do not meet or equal a listed impairment.
(Tr. 23).
The ALJ found that plaintiff had the residual functional capacity (RFC) to
perform work at the light level with physical limitations and mental limitations.
(Tr. 25). Based on the testimony of a vocational expert (VE), the ALJ found that
plaintiff was unable to perform her past relevant work. However, she was not
disabled because she was able to do other work that existed in significant
numbers in the regional and national economies. (Tr. 37-38).
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 the plaintiff.
1. Agency Forms
Plaintiff was born on November 11, 1962 and was forty-eight years old at
her alleged onset date. She was insured for DIB through September 30, 2012.
(Tr. 211). She was five feet eight inches tall and weighed one hundred and
5

eighty-three pounds. (Tr. 215). She completed two years of college in 1995 but
had no specialized training. (Tr. 216). She previously worked as a barn
manager at a stable, machine operator at a plastic manufacturer, a clerk at a
convenient store, a gas station attendant, a crew member at McDonalds, and a
customer service agent at a call center. (Tr. 217).
According to plaintiff, her arthritis, seizures, peripheral neuropathy,
borderline diabetes, bulging discs, hypothyroidism, carpal tunnel, anxiety, and
migraines limited her ability to perform work. (Tr. 215). Plaintiff took Synthroid
for hypothyroidism, Wellbutrin and Zoloft for anxiety, Vicodin and ibuprofen for
pain, and Flexeril for muscle spasms. She claimed ibuprofen and Vicodin
caused her to have an upset stomach and Wellbutrin caused mood swings. (Tr.
249).
Plaintiff submitted a function report in February 2012. (Tr. 226-33). She
stated that constant pain and side effects from her medications limited her
ability to work. (Tr. 226). She lived with her two sons who helped her with the
laundry, meal preparation, and cleaning. On a daily basis, she took her son to
school, performed household duties, napped, took occasional trips to the store,
made dinner, and went back to bed. (Tr. 227). She typically prepared simple
meals three or four times per week. (Tr. 228). Plaintiff was able to drive and
went to the store once a week. (Tr. 229). She could handle her finances. (Tr.
229-30).
Plaintiff stated her pain causes her to be irritable and depressed. (Tr. 231).
She rarely went out with friends and could no longer ride horses. (Tr. 230-31).
6

She claimed she had difficulty lifting, squatting, bending, standing, reaching,
walking,

sitting,

kneeling,

climbing

stairs,

using

her

hands,

seeing,

remembering, completing tasks, getting along with others, and concentrating.
(Tr. 231). Plaintiff stated she avoided interaction with authority figures and had
difficulty handling stress. (Tr. 232). She also stated her Vicodin, Flexeril, Zoloft,
and Wellbutrin all caused sleepiness. (Tr. 233).
2. Evidentiary Hearing
Plaintiff was represented by counsel at the evidentiary hearing on July 31,
2013. (Tr. 56). She was fifty years old and weighed one hundred and seventysix pounds. (Tr. 59, 62). At the time of the hearing she lived with her exhusband, but she was in the process of moving to live with her daughter, son,
and three grandchildren. (Tr. 61). She had an associate’s degree in general
studies and completed several years of college before having to drop out due to
her father’s declining health. (Tr. 63, 94). She received child support and
maintenance from her ex-husband and had a medical card. (Tr. 64-67).
Previously, plaintiff worked as a respiratory therapist, plastic press molder, fast
food worker, and stable hand. (Tr. 98). She also occasionally worked at a barn
in exchange for her horse’s boarding and feed costs. (Tr. 65).
Plaintiff stated that she typically had pain all over her body and frequently
dropped things. (Tr. 69-70). The most she was able to carry was a gallon of
milk. (Tr. 71). Plaintiff also stated that her vision had deteriorated as a result of
fibromyalgia. Glasses were no longer helpful and she had difficulty driving at
night. (Tr. 70-71). Plaintiff stated her arthritis was spreading from her thoracic
7

spine into her ribs and lower back. (Tr. 77). At the time of the hearing, she was
taking Robaxin as a muscle relaxer, Meloxicam as an anti-inflammatory,
Percocet and Vicodin for pain, Effexor for depression, and Topamax for
migraines. (Tr. 73). She also took synthyroid for hypothyroidism. (Tr. 72). The
only pill she did not take daily was Percocet because it made her unable to
concentrate. She also stated that she experienced the side effects of nausea,
loss of appetite, irritable bowels, and mood swings from her other medications.
Plaintiff was unable to try different medications because Medicaid would not
cover their costs. (Tr. 74).
Plaintiff thought she could sit for about fifteen to twenty minutes and she
could stand for about five to ten minutes at a time. She could walk half a block
before needing to rest and could only lift her arms to shoulder height. (Tr. 75,
78). Her hands were stiff in the morning and she could not perform fine motor
skills for the first half of the day. (Tr. 78). Changes in the weather made her
pain worse. (Tr. 80). Her memory was poor and she was only able to
concentrate when she had a “low pain day.” (Tr. 86). She also testified that she
had panic attacks and did not sleep well. (Tr. 86, 99).
A vocational expert (VE) also testified. The ALJ asked the VE a hypothetical
that comported with the ultimate RFC assessment, that is, a person with
plaintiff’s age and work history who was able to perform work at the light level.
The person would require a sit or stand option at will, and could never climb
ladders, ropes, or scaffolds. The person could occasionally climb ramps, stairs,
and occasionally balance, stoop, kneel, crouch, and crawl. Additionally, the
8

person could never reach overhead bilaterally and was limited to frequent
fingering and handling bilaterally. The person would be limited to simple,
routine, and repetitive tasks in a low stress job with only occasional changes.
Finally, the person would need to only have occasional interaction with coworkers and brief and superficial interactions with the general public. (Tr. 104).
The VE testified that this person could not perform any of plaintiff’s past
relevant work. (Tr. 105). However, she could do jobs that exist in significant
numbers in the national economy. Examples of such jobs are usher, charge
account clerk, and document preparer. (Tr. 108-09). The VE testified that if the
individual were to miss more than one day a month on average it would
preclude employment. (Tr. 110). Additionally, if the person was off task fifteen
percent of the time she would not be able to maintain employment. (Tr. 111).
3. Medical Evidence
Plaintiff’s records with her primary care physician Dr. Marjorie Guthrie
begin in January 2008 when plaintiff presented with insomnia and back pain.
She stated that she had joint pain in several places but her back pain was the
most painful. (Tr. 503). Plaintiff was seen several times by Dr. Guthrie prior to
her alleged onset date with widespread pain and fatigue. (Ex., Tr. 487, 475,
462, 455, 447, 444, 423, 410).
In July 2010, plaintiff presented to Dr. Guthrie reporting joint pain in her
back, shoulders, and knees. (Tr. 400). Plaintiff returned to Dr. Guthrie in
December 2010 reporting fatigue and depression. (Tr. 389). Thereafter, plaintiff
returned to Dr. Guthrie over ten times prior to her date last insured. She
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consistently reported fatigue, diffuse pain, depression, anxiety, and headaches.
(Tr. 332, 342, 347, 352, 366, 375, 620, 624, 630, 632, 696). Dr. Guthrie
repeatedly diagnosed plaintiff with osteoarthritis not otherwise specified,
migraines, depression, anxiety, neuropathy, and hypothyroidism. Ibid.
Dr. Guthrie performed a variety of tests to determine the etiology of
plaintiff’s widespread chronic pain. Her bloodwork was typically normal and
there were no definitive signs of arthritis on her X-rays. (Tr. 521-29, 666-69).
Dr. Guthrie gave plaintiff steroid shots for hip pain and prescribed several
different medications to try to reduce plaintiff’s pain, depression, and anxiety.
(Ex., Tr. 366-89, 332, 352, 375, 630). In September 2012, Dr. Guthrie referred
plaintiff to a rheumatologist to rule out lupus as a cause of plaintiff’s pain. (Tr.
696).
In February 2013, five months after plaintiff’s date last insured, plaintiff
was seen by rheumatologist Dr. Jonathan Miner. After running several tests,
he determined plaintiff’s symptoms were consistent with fibromyalgia. He also
diagnosed plaintiff with possible carpal tunnel syndrome, and possible
Raynaud phenomenon. (Tr. 724-26).
Plaintiff reported to St. Joseph’s Hospital Emergency Room in November
2011 with a severe headache, facial numbness, and blurred vision. (Tr. 288).
Plaintiff returned to St. Joseph’s Emergency Room in February 2012 reporting
severe chest pain for three days. (Tr. 554-58). On a follow up with Dr. Guthrie
this chest pain was attributed to anxiety. (Tr. 624). In October 2012, plaintiff
once again returned to St. Joseph’s Emergency Room, but presented with
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bilateral flank pain. (Tr. 673). Initially the doctors thought this could be kidney
pain, but after tests the etiology was unknown. (Tr. 677)
4. Opinions of Treating Physician
Dr. Guthrie completed two assessments of plaintiff’s capabilities. (Tr. 53334, 733-39). In January 2012, Dr. Guthrie completed a medical source
statement that indicated plaintiff could lift or carry five pounds frequently and
ten pounds occasionally. (Tr. 533). She opined that plaintiff could stand or
walk for fifteen minutes at a time for no more than two hours out of an eight
hour day. Plaintiff could sit continuously for thirty minutes at a time but could
only sit for less than an hour total in a workday. Dr. Guthrie stated plaintiff
could not push or pull more than five to ten pounds. (Tr. 533). She also opined
that plaintiff could never climb or balance, and could only occasionally stoop,
kneel, crouch, crawl, reach, handle, finger, and feel. She felt plaintiff needed to
avoid all exposure to vibration, hazards, and heights, and avoid moderate
exposure to extreme heat and cold, weather, wetness, and dust. Finally, Dr.
Guthrie stated that plaintiff would need to lie down or recline to alleviate pain
every fifteen to thirty minutes for fifteen to thirty minutes at a time. (Tr. 534).
Dr. Guthrie’s second assessment was a fibromyalgia residual functional
capacity questionnaire in July 2013. This was ten months after plaintiff’s date
last

insured.

(Tr.

733-39).

She

indicated

plaintiff

met

the

American

Rheumatological criteria for fibromyalgia but her prognosis was fair. Dr.
Guthrie referred to her medical records for evidence of frequent visits,
medication changes, and tests. (Tr. 733). She opined that plaintiff had multiple
11

tender points, nonrestorative sleep, chronic fatigue, morning stiffness, muscle
weakness, subjective swelling, irritable bowel syndrome, Temporomandibular
Joint Dysfunction, numbness and tingling, Sicca symptoms, Raynaud’s
phenomenon,

breathlessness,

anxiety,

panic

attacks,

depression,

hypothyroidism, carpal tunnel syndrome, and chronic fatigue syndrome. (Tr.
735).
Dr. Guthrie’s assessment indicated plaintiff had bilateral pain in most areas
of her body that was a five to eight out of ten on a pain scale. (Tr. 735-36). She
felt plaintiff’s experience of pain would often interfere with attention and
concentration but that she was still capable of low stress jobs. (Tr. 736). She
thought plaintiff would be absent from work about four times a month due to
her impairments or treatments. (Tr. 739).
5. Consultative Examination
In February 2012, plaintiff had a physical consultative examination with
state agency physician, Dr. Raymond Leung. (Tr. 536-39). Plaintiff indicated
she had diabetes, hypertension, neuropathy, carpal tunnel syndrome, low back
pain, hypothyroidism, seizures, and migraine headaches. (Tr. 536-37).
Plaintiff’s speech and hearing were within normal limits but she had difficulty
picking up a penny from the table with her hands. (Tr. 537). The majority of
plaintiff’s examination was unremarkable. (Tr. 538). However, plaintiff had
decreased sensation to light touch and pinprick in her hands and feet. She also
had mild to moderate decreased vibratory sensation in the feet. Her reflexes
were 2+ and equal. Dr. Leung’s impressions were hypertension, diabetes
12

mellitus,

neuropathy

in

her

hands

and

feet,

lumbar

disc

disease,

hypothyroidism, seizures, and migraine headaches. (Tr. 540).
6. RFC Assessment
In March 2012, state agency physician Dr. Lenore Gonzalez completed a
physical residual functional capacity (RFC) assessment. (Tr. 605-11). She
opined that plaintiff could occasionally lift or carry twenty pounds, and
frequently lift or carry ten pounds. Additionally, plaintiff could sit, stand, or
walk for about six hours out of an eight hour workday. (Tr. 605). Dr. Gonzalez
stated that plaintiff could occasionally climb ramps, stairs, ladders, ropes,
scaffolds, and could occasionally balance, stoop, kneel, crouch, and crawl. (Tr.
606). Plaintiff was limited to frequent handling and fingering bilaterally and
had no visual limitations. (Tr. 607).
Analysis
Plaintiff contends the ALJ erred in failing to find fibromyalgia a severe
impairment. Plaintiff argues that the effects of fibromyalgia, such as fatigue
and the location and intensity of pain, were not properly considered as a result
of the ALJ’s omission and that this error warrants reversal.
1. Step Two Error
At step two of the sequential evaluation the ALJ must determine whether
a claimant has an impairment or combination of impairments that is severe.
20 C.F.R. §404.1520(a)(4)(ii). The Seventh Circuit has held that in order for
an impairment to be considered severe it “must significantly limit an

13

individual's ability to perform basic work activities.” Moore v. Colvin, 743 F.3d
1118, 1121 (7th Cir. 2014).
The

Social

Security

Administration

(SSA)

created

guidance

for

establishing if a person has the medically determinable impairment of
fibromyalgia in SSR 12-2p. In 12-2p, the SSA states that a person will be
found to have fibromyalgia “if the physician diagnosed [fibromyalgia] and
provides the evidence we describe in section II.A or section II.B, and the
physician’s diagnosis is not inconsistent with the other evidence in the person’s
case record.”
Section II.A requires “a history of widespread pain . . . for at least three
months,” “[a]t least 11 positive tender points on physical examination,” and
“[e]vidence that other disorders that could cause the symptoms or signs were
excluded.” Section II.B requires a “a history of widespread pain . . . for at least
three months,” “repeated manifestations of six or more [fibromyalgia]
symptoms, signs, or co-occurring conditions, especially manifestations of
fatigue, cognitive or memory problems, waking unrefreshed, depression,
anxiety disorder, or irritable bowel syndrome,” and “[e]vidence that other
disorders that could cause the symptoms or signs were excluded.”
The ALJ referred to SSR 12-2p and concluded that plaintiff’s fibromyalgia
was not a severe impairment because she was not diagnosed with the disorder
until five months after her date last insured. Further, the ALJ reasoned that
plaintiff

did

not

display

evidence

of

tender

point

sites

or

repeated

manifestations of fibromyalgia like symptoms prior to the date last insured. (Tr.
14

23). The Commissioner states that plaintiff “offered no evidence indicating that
her February 2013 diagnosis related back to the period on or before the
expiration of her September 30, 2012 date last insured.”
As plaintiff notes, the Seventh Circuit has stated that “the critical date is
the date of onset of disability, not the date of diagnosis.” Lichter v. Bowen,
814 F.2d 430, 435 (7th Cir. 1987). Additionally, the SSA has provided
guidance for impairments that may not have a precise onset date in SSR 8320. SSR 83-20, at *3 states in relevant part, “the established onset date must
be fixed based on the facts and can never be inconsistent with the medical
evidence of record.” And, “[c]onvincing rationale must be given for the date
selected.”
Here, both the Commissioner and ALJ erred by stating there is no
evidence of repeated manifestations of fibromyalgia like symptoms prior to the
date last insured. Plaintiff’s history with Dr. Guthrie indicates difficulty with
fatigue (Tr. 343, 363, 367, 375, 383, 389, 624), waking unrefreshed after a full
night of sleep (Tr. 383, 389), anxiety (Tr. 333, 343, 366, 620), and depression
(Tr. 333, 343, 366, 431, 389, 444). These are the exact symptoms that SSR 122p states are indicative that a claimant has the severe impairment of
fibromyalgia. In addition, the Mayo Clinic advises that people with fibromyalgia
often have headaches and sleep disorders. 2 Plaintiff reported to both the
emergency room and Dr. Guthrie complaining of headaches (Tr. 283, 288, 343,

2

See, http://www.mayoclinic.org/diseases-conditions/fibromyalgia/basics/symptoms/con20019243, explaining how widespread pain, fatigue, cognitive disorders, and depression,
headaches, and pain were common symptoms of fibromyalgia.

15

347, 352), and repeatedly stated she had difficulty sleeping. (Tr. 343, 383,
455).
These symptoms all occurred prior to her date last insured; however
plaintiff was not referred to a rheumatologist until a few weeks before her DIB
ended. Seemingly, ALJ Sharrard entirely discounted plaintiff’s symptoms of
fibromyalgia because she was not properly diagnosed in time. The ALJ also
discounted plaintiff’s frequent reports of arthritic pain since there were no
clinical or diagnostic techniques diagnosing arthritis. (Tr. 22). This would make
sense in light of fibromyalgia, as the constant achiness plaintiff experienced is
consistent with fibromyalgia symptoms and “[t]here are no laboratory tests for
the presence or severity of fibromyalgia.” Sarchet v. Chater, 78 F.3d 305,
306 (7th Cir. 1996).
Plaintiff had widespread pain that was diagnosed as “osteoarthritis not
otherwise specified” for years. (Ex., Tr. 333, 343, 366, 620, 696). The
widespread general “arthritic” pain with a lack of positive signs in testing was
potentially indicative of plaintiff’s onset of fibromyalgia. The ALJ’s failure to
contemplate it as such, as well as not discussing plaintiff’s other symptoms in
line with SSR 12-2p’s requirements, is error. The Court notes that determining
the onset date can be difficult in a case such as this. However, that does not
excuse the ALJ from fixing a date that is supported by the evidence and setting
forth a convincing rationale for her determination.
As an aside, SSR 83-20 also provides that the ALJ “should” consult a
medical expert if the date of onset must be inferred. Plaintiff argues that it was
16

mandatory for ALJ Sharrard to consult an expert. However, the Seventh Circuit
has held that “should” does not mean “must” or “shall.” Eichstadt v. Astrue,
534 F.3d 663, 667 (7th Cir. 2008). Where the medical evidence is complete,
the ALJ is not required to consult a medical expert. Henderson v. Apfel, 179
F.3d 507, 513. See, also, Pugh v. Bowen, 870 F.2d 1271, 1278 n. 9 (7th
Cir.1989). Accordingly, this Court does not hold that ALJ Sharrard erred in
failing to consult a medical expert regarding the date of onset. However, the
Court notes that the ALJ certainly could have consulted a medical expert on
the issue. Perhaps, since determining the date of onset is difficult in a case
such as this, the ALJ would be wise to do so on remand.
2. RFC Assessment
A

step

two

error,

however,

is

not

necessarily

reversible.

The

Commissioner cites to Castile v. Astrue which states that “[a]s long as the
administrative law judge (ALJ) determines that the claimant has one severe
impairment, the ALJ will proceed to the remaining steps of the evaluation
process. 20 C.F.R. § 404.1523. Therefore, the step two determination of
severity is merely a threshold requirement.” 617 F.3d 923, 926-27 (7th Cir.
2010). In citing this opinion, the Commissioner argues that since the ALJ
found other severe impairments the failure to find fibromyalgia to be severe is
of “no consequence.” The Commissioner is incorrect.
While the Commissioner correctly cites the Seventh Circuit’s opinion in
Castile, she fails to acknowledge the Seventh Circuit has also held that the
severity of an applicant’s conditions is not only analyzed in the second step of
17

the opinion. Importantly, “[i]t also affects the ALJ’s determination of residual
functional capacity, for example, and thus, no matter what happens at step
two, a correct assessment remains important.” Farrell v. Astrue¸ 692 F.3d
767, 773 (7th Cir. 2012). Consequently, while a step two error may not be
reversible by itself, the ALJ must cure the error by properly evaluating all the
evidence when making the RFC assessment. See Arnett v. Astrue, 676 F.3d
586, 592 (7th Cir. 2012).
“Therefore, failure to evaluate the limitations caused by the impairments
that were found to be non-severe in step two is reversible error, and a step two
error thus raises a red-flag for such reversible error during an ALJ's RFC
assessment.” Cole v. Colvin, 2015 U.S. Dist. LEXIS 53907 at *15 (S.D. Ind.
Apr. 1, 2015). Here, if ALJ Sharrard failed to incorporate the limitations
caused by plaintiff’s fibromyalgia into her RFC assessment then reversal is
warranted.
The ALJ barely mentions plaintiff’s well documented fatigue stating that
“Dr. Guthrie felt her fatigue was due to pain.” (Tr. 22). Fatigue is a common
symptom of fibromyalgia and one that plaintiff complained of frequently. (Tr.
343, 363, 367, 375, 383, 389, 624). She stated that she regularly needed to
rest and had difficulty remembering and concentrating as a result of her
fatigue and pain. (Tr. 86, 227, 231). Additionally, as mentioned above, the ALJ
entirely discounted plaintiff’s “arthritic” pain due to her lack of diagnostic
testing. (Tr. 22). As a result, the ALJ failed to include any limitations regarding
her diffuse pain into the RFC analysis. Therefore, the ALJ’s failure to properly
18

evaluate the limiting effects of plaintiff’s fatigue and aching pain is a reversible
error.
The Court wishes to stress that this Memorandum and Order should not
be construed as an indication that the Court believes that plaintiff is disabled
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
Plaintiff’s motion for summary judgment is granted. The Commissioner’s
final decision denying Trudy Knorr’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: November 17, 2015.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

19