Spencer v. Commissioner of Social Security

Filing 35

MEMORANDUM AND ORDER, The Commissioner's final decision denying Craig Spencer'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. Signed by Judge J. Phil Gilbert on 3/27/2017. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CRAIG ALAN SPENCER,

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Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant. 1

Civil No. 15-cv-1319-JPG-CJP

MEMORANDUM and ORDER
In accordance with 42 U.S.C. §405(g), plaintiff Craig Alan Spencer is before the Court,
represented by counsel, seeking review of the final decision of the Commissioner of Social
Security denying him Disability Insurance Benefits (DIB).
Procedural History
Plaintiff applied for benefits on April 25, 2012 alleging disability beginning on January
18, 2011. (Tr. 11). After holding an evidentiary hearing, Administrative Law Judge (ALJ) Karen
Sayon denied the application for benefits in a decision dated May 23, 2014. (Tr. 11-25). The
Appeals Council denied review, and the decision of the 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 points:

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. See, Casey v. Berryhill, __ F3d. __, 2017
WL 398309 (7th Cir. Jan. 30, 2017). She is automatically substituted as defendant in this case. See Fed. R. Civ. P.
25(d); 42 U.S.C. §405(g).

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1. The ALJ’s analysis of Plaintiff’s treating physicians’ opinions was legally insufficient
and the ALJ’s decision to reject those opinions was not supported by substantial
evidence.
2. The ALJ’s residual functional capacity (RFC) assessment was not supported by
substantial evidence because she failed to provide the basis for her conclusions.
3. The ALJ’s credibility assessment was legally insufficient.
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 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,
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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.
Craft v.Astrue, 539 F.3d 668, 674 (7th Cir. 2008)(quoted in 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 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

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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)). This Court uses the Supreme Court’s definition of substantial
evidence, i.e., “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, 921
(7th Cir. 2010), and cases cited therein.
The Decision of the ALJ
ALJ Sayon followed the five-step framework described above. She determined that
plaintiff did not engage in substantial gainful activity from his alleged onset through the date of
her opinion. She found that plaintiff had severe impairment of cervical degenerative disc disease,
status-post fusion. (Tr. 13).
The ALJ found plaintiff had the residual functional capacity to perform work at the light
level, with physical and mental limitations. (Tr. 17-23). Based on the testimony of a vocational
expert, the ALJ found that plaintiff was not able to perform his past work. (Tr. 23). However, he
was not disabled because he was able to perform other work that existed in significant numbers
in the regional and national economies. (Tr. 24).

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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 March 22, 1961 and was forty-nine years old at his alleged onset
date. (Tr. 194). He was five feet eight inches tall and weighed one hundred and seventy-five
pounds. (Tr. 205). He was insured for DIB through December 31, 2016. (Tr. 194). He completed
high school and a four year electrician apprenticeship program. (Tr. 206). He previously worked
as an electrician for twenty-six years. (Tr. 196).
Plaintiff claimed a neck compression injury, depression, and chronic pain limited his
ability to work. (Tr. 205). In June 2013, he was taking Atenolol and Benazepril for high blood
pressure; Tramadol, Aleve, and Ibuprofen for pain; and Citalopram for depression. (Tr. 292). He
stated that the Atenolol, Benazepril, and Tramadol made him dizzy and the Citalopram made him
drowsy. (Tr. 287).
Plaintiff completed a function report in July 2012. (Tr. 252-59). He lived in a house with
family. He indicated his ability to work was limited because he could not lift more than twenty
pounds or carry things for more than a short distance. He was unable to lift things above his
head, his range of motion in his neck was limited, and if he stood or walked for more than three
hours he became dizzy and nauseated. (Tr. 252).
On a daily basis, plaintiff showered, shaved, made the bed, did the dishes, took out the
trash, fed his dogs, watched television, watered plants, and took naps. His wife helped him care
for his dogs. Prior to his injuries, he was able to hike, kayak, and bow hunt. (Tr. 253). Plaintiff

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could prepare simple meals, like frozen meals or sandwiches, on a daily basis. (Tr. 254). He went
outside daily, went to church weekly, and was able to drive a car. He shopped in stores for food
and clothing about twice a week for ten or fifteen minutes at a time. He could handle his
finances. (Tr. 255). He talked on the phone every day and went out to eat or visited with friends
once a month. (Tr. 256).
Plaintiff claimed he had difficulty lifting, squatting, bending, standing, reaching, walking,
sitting, kneeling, climbing stairs, remembering, completing tasks, concentrating, and using his
hands. He indicated he could lift twenty pounds, squat for two minutes, walk for a few blocks,
sit for two hours, climb one flight of stairs, and pay attention for one hour at a time. He followed
written instructions well but had difficulty with spoken instructions. (Tr. 257). He had no
problem with authority figures. He stated that his Hydrocodone and Tramadol caused
drowsiness. (Tr. 259).
Plaintiff’s wife also completed a function report in July 2012. (Tr. 230-37). She indicated
he could not stand, walk, or lift as was required in his previous job. If he walked or stood for a
long period of time he became nauseated and would get severe headaches. She stated that
plaintiff could not turn his head or move his head to look up. He also had numbness and shaking
in his hands. (Tr. 230). Plaintiff’s wife stated that prior to his injuries he could bow hunt, go
backpacking, and sightsee. She said plaintiff would wake up with severe neck pain for several
hours in the middle of the night and as a result he rarely slept through the night undisturbed. (Tr.
231).
Plaintiff’s wife felt that plaintiff’s injuries made it difficult for him to lift, squat, stand,
bend, stand, reach, walk, sit, kneel, climb stairs, complete tasks, concentrate, use his hands, and
get along with others. (Tr. 235). She felt plaintiff no longer handled stress well and he had a

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short temper. He did not remember conversations well. (Tr. 236). Plaintiff’s wife said that after
his injury plaintiff was no longer the same person. He was very active prior to injury and after
the injury he slept and watched television for most of the day. She stated it was easy to tell he
was in constant pain. (Tr. 237).
2. Evidentiary Hearing.
Plaintiff was represented by counsel at the evidentiary hearing held on April 14, 2014.
(Tr. 33-62). At the time of the hearing plaintiff was fifty-three years old and lived by himself.
(Tr. 37). He had a driver’s license and his main issue while driving was concentrating. (Tr. 3738). He was previously an electrician and inside wireman. (Tr. 39). On several job sites he held a
supervisory position. (Tr. 40). Plaintiff attempted to return to work after his alleged onset date
but was unable to work more than ten days. (Tr. 38-39). Plaintiff received worker’s
compensation and was required to do a job search to retain those benefits. (Tr. 39).
Plaintiff had surgery on his neck in August 2011. He testified that it initially helped and
the feeling in his right arm and fingertips returned. The surgery caused his right hand to have
tremors and his motor skills to be impaired. (Tr. 40). He stated that he still had constant pain in
his neck that he rated a seven out of ten on a daily basis. He had a higher level of pain when he
tried to physically exert himself or take a long car ride. Plaintiff testified that when he attempted
physical therapy the pain was so severe that he would vomit. He could ride in a car for about
three hours before the pain became unbearable. (Tr. 41). He testified that he could walk for about
twenty minutes, stand for an hour or two, and he could not sit for a substantial amount of time.
He spent most of his day reclined with his head supported. (Tr. 42).
Plaintiff testified that the most he could lift was twenty pounds but could only do that
once. He could regularly lift or carry a gallon of milk or a twelve pack of soda. (Tr. 42). He felt

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that his medication caused his difficulties with concentration and insomnia. (Tr. 43). Plaintiff
was depressed and had suicidal thoughts on occasion. He spoke with one of his doctors about his
symptoms and had been taking an antidepressant for two years. (Tr. 44). He occasionally drank
alcohol and drank to the point of intoxication twice since 2010. (Tr. 44-45).
Plaintiff described a typical day for the ALJ. He stated that he spent a lot of time at his
parents’ house because his father had Alzheimer’s and they lived next door to him. He cooked
for his father and watched television with him. He stated that he spent a lot of time caring for his
father. He did laundry in small and short loads and cleaned “a little bit here and a little bit
there.” He did his own grocery shopping as well. Plaintiff stated that he had a small apartment it
was not hard to keep it maintained. (Tr. 45). He testified that he could do chores for ten to
fifteen minutes at a time and then would need a thirty to forty minute break to rest. (Tr. 45, 50).
During that time resting he needed to lie completely flat. (Tr. 51).
Since 2010, plaintiff took trips to the Bahamas, New Orleans, Memphis, and Chicago.
When he went to New Orleans he had to stay in bed for a day after traveling. (Tr. 46). While in
New Orleans, he attempted to go fishing with his friends but had severe pain. (Tr. 48). Plaintiff
moved out of his home with his wife in 2013 and was in the process of getting divorced. He
testified that his physical and mental limitations were the primary reason for the divorce. They
were married for thirteen years before they separated. (Tr. 49). Plaintiff indicated he was short
tempered with friends and had difficulty getting along with others. (Tr. 49-50). He had anxiety
attacks and small stressors would bother him greatly. (Tr. 51). He had difficulty staying focused
and would have to reread a page of information several times. (Tr. 54). Plaintiff testified that he
had one or two headaches daily at the base of his skull. During the hearing, plaintiff cradled his

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head in his arm to take the pressure off of his neck. (Tr. 53). He stated that in order for him to
have a job he would have to be able to lie down whenever he needed. (T. 55).
A vocational expert (VE) also testified. (Tr. 56-61). 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 perform light work with no climbing ladders, ropes, or
scaffolds, and frequent but not constant climbing of ramps and stairs. The person could
occasionally stoop, crouch, and crawl, and occasionally use vibrating tools. The individual could
also occasionally reach overhead and do work that involves simple instructions and routine tasks.
The VE testified that the person would be unable to perform plaintiff’s previous work. However,
the individual could perform jobs that exist in a significant number within the national and
regional economies. Examples of such jobs are sorter, hand packager, and inspector. (Tr. 58-59).
The VE also testified that the person could be off task for fifteen percent of the day and
retain competitive employment. If the person needed thirty minute breaks after fifteen minutes
of work no jobs would be available. (Tr. 59). Additionally, the VE testified that the individual
could not lie down on the job for any amount of time. (Tr. 59-60). The person could miss one
day of work a month and remain employed. (Tr. 60). After questioning from plaintiff’s attorney,
the VE stated that there would be available positions if the person could only occasionally
bilaterally handle and never use fine manipulation. (Tr. 60-61).
3. Medical Evidence.
In November 2010, plaintiff presented to neurosurgeon Christopher Heffner, M.D. with
muscle spasm and tightness in his neck after an injury. Plaintiff stated that in October he was at
work and at the base of a ladder when someone descended and landed on his head. (Tr. 326). He
had pain with extension of his neck and when he turned it to either side. Dr. Heffner reviewed an

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MRI plaintiff had the month before that indicated plaintiff’s cervical spine had minor
degenerative changes and bone spurring at C4-5 and C5-6. There was also mild angulation on the
MRI study. Dr. Heffner diagnosed plaintiff with cervical spondylosis and neck pain and stated
that he suspected physical therapy would help. (Tr. 326-27). Plaintiff began physical therapy that
month which he continued through June 2011. (Tr. 669-86).
Plaintiff returned to Dr. Heffner in December 2010 and stated he was doing much better
with physical therapy and had less pain. He still had irritation on the right side of his neck but it
was not severe. Dr. Heffner thought plaintiff could return to work in two weeks. (Tr. 325). When
plaintiff returned to Dr. Heffner in January 2011 he indicated that he attempted to return to work
but was not able to tolerate it well. His neck pain increased with traction. A new MRI was taken
and Dr. Heffner stated it was close to the same as his previous study with minor degenerative
changes, bone spurring, and disc bulging at C4-5 and C5-6. (Tr. 324). The MRI notes also
indicate plaintiff had multilevel foraminal stenosis especially at C3-4 and a small hemangioma2
in the C7 vertical body. (Tr. 329-30).
In February 2011, plaintiff returned to Dr. Heffner and indicated he still had pain and his
most recent physical therapy did not help. Dr. Heffner stated that he did not feel plaintiff was a
candidate for surgery and he felt he could return to work the next week. Dr. Heffner indicated
that if plaintiff did not feel he could return to work then he could refer him to another doctor. (Tr.
323). As a result, in March 2011 plaintiff began treatment with neurologist David Kennedy,
M.D. (Tr. 481-82). Dr. Kennedy evaluated plaintiff and stated that plaintiff’s range of motion in
his cervical spine was reduced by fifty percent. (Tr. 481). Dr. Kennedy’s diagnostic impression
was chronic cervical pain following injury, he wanted to begin facet injections, and he did not

2

A spinal hemangioma is a benign tumor that typically displays no symptoms.
http://www.upmc.com/Services/neurosurgery/spine/conditions/tumors-lesions/Pages/hemangioma.aspx

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think surgical intervention would be necessary. (Tr. 482). Around this time, plaintiff also sought
treatment for knee pain from his primary care physician, Dr. Brian McElheny and orthopedist
Dr. Mike Davis. (Tr. 320, 364). His record does not indicate the knee pain returned after
receiving an injection from Dr. Davis. (Tr. 364).
In April 2011, plaintiff received three cervical nerve root block injections. (Tr. 353-55).
He returned to Dr. Kennedy and stated he was better after the injections. He restarted plaintiff on
physical therapy and stated plaintiff should remain off of work. (Tr. 479). In June 2011, plaintiff
returned to Dr. Kennedy and stated he had no relief from his pain. Dr. Kennedy set plaintiff up
with a cervical myelogram to see if any operative intervention was feasible. (Tr. 477). Plaintiff
also saw Dr. McElheny that month with worsening symptoms of depression. Plaintiff had crying
spells and an anxious mood. (Tr. 361). Dr. McElheny prescribed Celexa and recommended a
graduated exercise program. (Tr. 362).
The myelogram showed significant disc abnormalities with nerve root impingement at
C4-5 and C5-6. (Tr. 368-71). Dr. Kennedy recommended a cervical discectomy with fusion. (Tr.
475). In August 2011 plaintiff underwent a complete discectomy with microdissection at C4-5
and C5-6, placement of a biomechanical spacer at C4-5 and C5-6, and fusion at C4-5 and C5-6.
(Tr. 383-84). Plaintiff was discharged two weeks after his surgery. (Tr. 396). His discharge
papers indicated he was depressed but primarily doing well. (Tr. 396-428). Plaintiff followed up
with Dr. Kennedy in September and was doing very well. (Tr. 472). When plaintiff returned to
Dr. Kennedy in November 2011 he was having pain at the base of his cervical spine and Dr.
Kennedy referred him to physical therapy. (Tr. 469). Later that month plaintiff presented at the
emergency room with a severe headache that caused him to vomit. (Tr. 439). He was given 800
mg ibuprofen and discharged. (Tr. 444).

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In December 2011 Dr. Kennedy reported that plaintiff was doing well and he continued
therapy. (Tr. 466). February 2012 imaging was normal and Dr. Kennedy noted plaintiff was
making progress in therapy but he could not return to work yet. (Tr. 463). In March 2012
plaintiff returned to Dr. Kennedy and indicated he had not improved. Plaintiff still reported pain
with most activities and Dr. Kennedy felt he had reached a plateau with regard to rehabilitation.
Dr. Kennedy ordered a functional capacity evaluation. (Tr. 460).
Plaintiff had the evaluation with physical therapist Pamela Hunter in April 2012. Ms.
Hunter indicated plaintiff had decreased strength, tremors in his hand, and an inability to tolerate
prolonged overhead position. He could not perform frequent fingering or occasional (Ten
minutes of) above-shoulder work. (Tr. 580, 582). As a result plaintiff could not return to his
work as an electrician, however he could perform light work that allowed him to move around
and change position. (Tr. 588). The evening following his FCE with Ms. Hunter plaintiff had a
severe tension headache and the FCE was discontinued early secondary to headache and
increased pain. (Tr. 599).
In September 2012 plaintiff returned to the emergency room with anxiety and chest pain.
(Tr. 530). Plaintiff returned to Dr. McElheny in November 2012 with depression. Dr. McElheny
refilled plaintiff’s Celexa prescription and wanted him to follow up in six months. (Tr. 570-71).
Plaintiff’s next records were from July 2013 with Dr. McElheny. He had a decreased range of
motion and Dr. McElheny indicated plaintiff had chronic neck pain. (Tr. 762-63). Plaintiff’s final
record was from March 2014 with Dr. McElheny. He presented with constant nagging neck pain,
anxiety, and difficulty concentrating. Dr. McElheny referred plaintiff to a chronic pain specialist.
(Tr. 775-76).

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4. Independent Medical Consultation.
In March 2011, plaintiff saw Dr. Robert Bernardi at the Olive Surgical Group for an
independent medical evaluation. (Tr. 342-47). At the time plaintiff saw Dr. Bernardi he had been
to thirty-one physical therapy sessions and stated they helped quite a bit. (Tr. 343). Plaintiff’s
cervical range of motion was limited but the range of motion in his shoulders was full. (Tr. 34445). Dr. Bernardi’s diagnoses were multilevel degenerative disc disease, multilevel foraminal
stenosis, right-sided neck pain, and probable right C6 radiculopathy. (Tr. 345). He did not think
plaintiff was capable of returning to full time work at that time but his prognosis was excellent.
(Tr. 346-47).
5. Opinion of Treating Physician.
In July 2013, Dr. McElheny completed a medical source statement to indicate plaintiff’s
capabilities. (Tr. 746-51). Dr. McElheny indicated plaintiff could occasionally lift or carry up to
twenty pounds but never more. (Tr. 746). Plaintiff could sit for four hours at a time and a total of
five hours a day, and stand or walk for three hours at a time and a total of four hours in a day.
Plaintiff would need to shift positions every fifteen to thirty minutes and would need an
unscheduled fifteen to thirty minute break every two hours. (Tr. 747). Plaintiff could
occasionally use his hands to reach, handle, feel, push, or pull and occasionally use his feet for
the operation of foot controls. (Tr. 748). Plaintiff could also occasionally perform all postural
activities. (Tr. 749). Dr. McElheny opined that plaintiff could occasionally be around
unprotected heights, moving mechanical parts, operate a motor vehicle, or be in extreme cold
and frequently be exposed to humidity, wetness, extreme heat, vibrations, dust, odors, fumes, and
pulmonary irritants. (Tr. 750). He also indicated plaintiff’s injuries would cause him to miss
more than four days of work per month. (Tr. 751).

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6. Consultative Examination.
In September 2012, plaintiff saw state agency physician Adrian Feinerman for a physical
consultative examination. (Tr. 556-61). Plaintiff had no difficulties getting on and off the exam
table, tandem walking, standing on toes, standing on heels, squatting and arising, or arising from
a chair. (Tr. 560). Dr. Feinerman indicated that upon physical examination, plaintiff could sit,
stand, walk, hear, and speak normally. Further, he was able to lift, carry, and handle objects
without difficulty. (Tr. 561).
7. RFC Assessments.
In September 2012, state agency psychologist Howard Tin evaluated plaintiff’s mental
RFC. (Tr. 71-73). He reviewed plaintiff’s records but did not examine plaintiff in person. Dr. Tin
indicated plaintiff had non-severe affective disorders. Dr. Tin opined that plaintiff had mild
difficulties in activities of daily living and maintaining social functioning. (Tr. 72). He stated that
plaintiff’s mental illnesses were not severe. (Tr. 73). In February 2013, state agency psychiatrist
Kirk Boyenga, Ph.D. reviewed the record and agreed with Dr. Tin’s assessment. (Tr. 88).
In October 2012, state agency physician Julio Pardo, M.D. evaluated plaintiff’s physical
RFC. (Tr. 73-77). He opined that plaintiff could occasionally lift or carry twenty pounds and
frequently lift or carry ten pounds. Plaintiff could sit, stand, or walk for six hours out of an
eight-hour workday. (Tr. 74). Plaintiff could frequently crawl and climb ramps or stairs and only
occasionally climb ladders, ropes, or scaffolds. (Tr. 75). Additionally, he should avoid
concentrated exposure to hazards such as machinery or heights. (Tr. 76). Dr. Pardo opined that
plaintiff was not disabled. (Tr. 77). In February 2013, state agency physician James Hinchen,
M.D. examined the record and agreed with Dr. Pardo. (Tr. 89-92).

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Analysis
Plaintiff argues that the ALJ erred in evaluating the treating physicians’ opinions,
incorrectly formed her RFC assessment, and failed to appropriately consider plaintiff’s
credibility.

As plaintiff relies, in part, on his testimony, the Court will first consider his

argument regarding the ALJ’s credibility analysis.
The credibility findings of the ALJ are to be accorded deference, particularly in view of
the ALJ’s opportunity to observe the witness. Powers v. Apfel, 207 F.3d 431, 435 (7th Cir.
2000). Social Security regulations and Seventh Circuit cases, “taken together, require an ALJ to
articulate specific reasons for discounting a claimant's testimony as being less than credible, and
preclude an ALJ from ‘merely ignoring’ the testimony or relying solely on a conflict between the
objective medical evidence and the claimant's testimony as a basis for a negative credibility
finding.” Schmidt v. Barnhart, 395 F.3d 737, 746-747 (7th Cir. 2005), and cases cited therein.
SSR 96-7p requires the ALJ to consider a number of factors in assessing the claimant’s
credibility, including the objective medical evidence, the claimant’s daily activities, medication
for the relief of pain, and “any other factors concerning the individual’s functional limitations
and restrictions due to pain or other symptoms.” SSR 96-7p, at *3.
The ALJ is required to give “specific reasons” for her credibility findings. Villano v.
Astrue, 556 F.3d 558, 562 (7th Cir. 2009). It is not enough just to describe the plaintiff’s
testimony; the ALJ must analyze the evidence. Id. See also, Terry v. Astrue, 580 F.3d 471, 478
(7th Cir. 2009)(The ALJ “must justify the credibility finding with specific reasons supported by
the record.”). If the adverse credibility finding is premised on inconsistencies between plaintiff’s
statements and other evidence in the record, the ALJ must identify and explain those
inconsistencies. Zurawski, 245 F.3d at 887.

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First, plaintiff claims that the ALJ’s credibility analysis was legally insufficient. He
argues that the ALJ failed to analyze which specific statements plaintiff made were not credible
and the extent they were not credible. Contrary to plaintiff’s suggestion, “an ALJ's credibility
findings need not specify which statements were not credible.” Shideler v. Astrue, 688 F.3d 306,
312 (7th Cir. 2012). Additionally, the ALJ did address how some of plaintiff’s statements in his
testimony were inconsistent and plaintiff acknowledges this within his brief. Plaintiff testified
that he no longer enjoyed being around people but had taken several vacations, went out to eat,
and attended church. (Tr. 19, 46, 48, 255). Plaintiff testified to a constant pain level of seven that
increased with activity but told medical providers his pain was usually a four that dropped to a
two and sometimes reached a six. (Tr. 650, 689, 745). The ALJ may rely on conflicts between
plaintiff’s testimony and the objective record, as “discrepancies between objective evidence and
self-reports may suggest symptom exaggeration.” Getch v. Astrue, 539 F.3d 473, 483 (7th Cir.
2008. That is exactly what the ALJ appropriately did in the case at hand.
Plaintiff contends that the ALJ speculated a number of her reasons for forming her
credibility assessment.

Plaintiff states that his vacations did not contradict his claimed

limitations and the ALJ needed to ask him what his activities were while on vacation. However,
as the Commissioner notes, the ALJ heard testimony about what plaintiff did on vacation.
Plaintiff stated he wore a neck brace on vacations and was only able to eat, lie in the sun, and
walk short distances. (Tr. 46, 49). The ALJ noted that plaintiff stated he had not gone fishing
since his injury but that he was on a fishing boat in New Orleans with friends. (Tr. 19). Plaintiff
claims he did not testify that he fished while on the boat. However, he did state that he
attempted to fish in his testimony. (Tr. 48). It is reasonable for the ALJ to draw a conclusion that

16

plaintiff’s claims he did not participate, at all, in any of the activities he used to find enjoyable
were not entirely consistent with the record.
The ALJ also looked at plaintiff’s activities of daily living. (Tr. 18-19). The Seventh
Circuit has held that this is appropriate to consider when evaluating credibility but that it should
be done with caution. Roddy v. Astrue, 705 F.3d 631 (7th Cir. 2013). She determined plaintiff’s
activities were not indicative of someone with the disability plaintiff claimed, as plaintiff took
care of himself, prepared meals, took care of his parents, vacationed, cared for animals, bow
hunted, and could drive and shop. The ALJ felt plaintiff’s complaints did not support the ability
to perform these tasks. (Tr. 19-20). The ALJ cannot rely solely on the activities of daily living,
but it is appropriate for her to consider the activities when forming her credibility assessment.
The Court agrees with plaintiff that the ALJ incorrectly assumed that his statements that
he could not afford treatment were inconsistent with the record because plaintiff purchased beer
daily, bought a crossbow, took vacations, and had a large worker’s compensation check. If the
ALJ had based her credibility determination on this error and plaintiff’s activities of daily living
it would warrant reversal. Ultimately, however, ALJ Sayon considered other appropriate factors
and supported her conclusion with reasons derived from evidence. The Seventh Circuit has held
that not all of the ALJ’s reasons have to be sound as long as “enough of them are.” Halsell v.
Astrue, 357 Fed. Appx. 717, 722 (7th Cir. 2009).
As a whole, plaintiff’s arguments regarding the credibility analysis miss the mark. She
discussed plaintiff’s treatment history, work history, medications, and testimony. However, she
found that based on subjective and objective information contained in the record, some of
plaintiff’s claims were not entirely credible.

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The ALJ’s credibility assessment need not be “flawless;” it passes muster as long as it is
not “patently wrong.” Simila, 573 F.3d at 517. See, SSR 96-7p. The analysis is deemed to be
patently wrong “only when the ALJ's determination lacks any explanation or support.” Elder v.
Astrue, 529 F.3d 408, 413-414 (7th Cir. 2008). Here, the analysis is far from patently wrong. It
is evident that ALJ Sayon considered some of the appropriate factors and built the required
logical bridge from the evidence to her conclusions about plaintiff’s testimony. Castile v. Astrue,
617 F.3d 923, 929 (7th Cir. 2010). Therefore, her credibility determination stands.
Next the Court will look at plaintiff’s argument that the ALJ erred in forming plaintiff’s
RFC assessment. An 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.” Id. “As we have stated
previously, an ALJ must consider the entire record, but the ALJ is not required to rely entirely on
a particular physician's opinion or choose between the opinions of any of the claimant's
physicians.” See Diaz v. Chater, 55 F.3d 300, 306 n. 2 (7th Cir.1995).
The ALJ formed her RFC by taking some of the limitations from plaintiff’s treating
physicians, some of the non-examining state agency consultant’s opinions, and added additional
limitations with the explanation that additional evidence was submitted after the consultants
reviewed the evidence. (Tr. 22). As plaintiff notes, the ALJ did not elaborate on how the more
recent evidence submitted led to the conclusions she reached.
For example, the ALJ stated that based on the FCE she limited plaintiff to occasional
reaching overhead. (Tr. 22). However, the FCE limited plaintiff to minimal reaching overhead
and Dr. Kennedy agreed with that assessment. (Tr. 582, 588, 578). No doctors found plaintiff to
be able to occasionally reach overhead. It was, as plaintiff notes, inconsistent for the ALJ to rely

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upon the FCE and apparently Dr. Kennedy’s opinion but adopt a different restriction than they
assessed. The ALJ also found that plaintiff’s hand tremors were slight and permitted plaintiff to
engage in fine and gross movements with his hands. (Tr. 19-20). Dr. Feinerman indicated
plaintiff could perform fine and gross manipulation despite tremors. (Tr. 561). However, the
most recent FCE indicated plaintiff’s ability to perform fine and gross motor skills was impacted
by the tremors and would not permit frequent fingering. (Tr. 580). The ALJ did not mention this
within her opinion.
The ALJ is required to identify medical evidence she relied upon that substantiated her
conclusions. SSR 96-8p. The Seventh Circuit has held that an ALJ must identify and explain
how the evidence on record led to her conclusions; it is not enough for the ALJ to indicate,
generally, there is evidence that supports her decisions. Young v. Barnhart, 362 F.3d 995, 1002
(7th Cir. 2004)
Plaintiff’s record also contains evidence of mental illness and headaches. (Tr. 53, 672-74,
759-60, 775-76). The ALJ found plaintiff to have a mild restriction in social functioning and
limited him to simple instructions and routine tasks as a result. (Tr. 15). There is no restriction
for interactions with others or relating to social functioning. The ALJ was required to consider
the effects of plaintiff’s non-severe depression and anxiety on the RFC assessment. Craft v.
Astrue, 539 F.3d 668 (7th Cir. 2008). The ALJ also noted plaintiff’s reported headache pain but
found the claims inconsistent since plaintiff reported headaches to his physical therapists but not
his treating physicians. (Tr. 19, 672, 673, 674, 685). However, plaintiff claimed his headaches
were brought on by activity. His treating sources did not ask him to engage in physical activities
and it would follow that he told his physical therapists about his headaches when he was doing
physical activities.

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The ALJ is required to consider how all of plaintiff’s impairments, both severe and nonsevere, impacted her RFC assessment. Craft, 539 F.3d at 668. Her failure to do so is error and
requires remand. Reconsideration of plaintiff’s RFC assessment will also require a “fresh look”
at the medical opinions. Pierce v. Colvin, 739 F.3d 1046, 1051 (7th Cir. 2014). It is therefore
unnecessary to analyze plaintiff’s other point in detail. The Court nevertheless makes the
following observations with regard to the weighing of the medical opinions.
Plaintiff’s final argument is that the ALJ failed to appropriately consider the opinions of
plaintiff’s treating physicians. A treating doctor’s medical opinion is entitled to controlling
weight only where it is supported by medical evidence and is not inconsistent with other
substantial evidence in the record. Clifford v. Apfel, 227 F.3d 863 (7th Cir. 2000); Zurawski, 245
F.3d 881. The version of 20 C.F.R. §404.1527(c)(2) in effect at the time of the ALJ’s decision
states:
Generally, we give more weight to opinions from your treating sources, since
these sources are likely to be the medical professionals most able to provide a
detailed, longitudinal picture of your medical impairment(s) and may bring a
unique perspective to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of individual examinations, such
as consultative examinations or brief hospitalizations. If we find that a treating
source's opinion on the issue(s) of the nature and severity of your impairment(s) is
well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in your case
record, we will give it controlling weight. [Emphasis added]
It must be noted that, “while the treating physician’s opinion is important, it is not the
final word on a claimant’s disability.” Books v. Chater, 91 F.3d 972, 979 (7th Cir. 1996)(internal
citation omitted). It is the function of the ALJ to weigh the medical evidence, applying the
factors set forth in §404.1527. Supportability and consistency are two important factors to be
considered in weighing medical opinions. See, 20 C.F.R. §404.1527(c). In a nutshell, “[t]he
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regulations state that an ALJ must give a treating physician's opinion controlling weight if two
conditions are met: (1) the opinion is supported by ‘medically acceptable clinical and laboratory
diagnostic techniques[,]’ and (2) it is ‘not inconsistent’ with substantial evidence in the record.”
Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010), citing §404.1527(d).
The ALJ here analyzed the opinions on record and felt that Dr. McElheny’s treatment
notes did not support his ultimate findings, and some of Dr. Kennedy’s determinations were also
unsubstantiated. She felt that Dr. Kennedy’s opinion that plaintiff would need to alternate
sitting, standing, and walking was not supported by the record, primarily because Dr. Feinerman
found plaintiff to be able to sit, stand, and walk normally. As plaintiff notes, the Seventh Circuit
has held that a claimant’s ability to walk fifty feet in a doctor’s office does not equate to the
ability to sit, stand, and walk for six hours out of a workday. Scott v. Astrue, 647 F.3d 734, 740
(7th Cir. 2011).
Further, the ALJ felt Dr. McElheny relied on plaintiff’s subjective allegations too
heavily. The ALJ appropriately found plaintiff less than credible and therefore the subjective
allegations of plaintiff would not be an adequate standalone basis for a doctor’s opinion.
However, it is important to note that a doctor is allowed to rely upon their patient’s reported
symptoms, and doctors generally do not prescribe medications if they believe the patient is
exaggerating. Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004); Adaire v. Colvin, 778
F.3d 685, 688 (7th Cir. 2015).
The Court wishes to stress that this Memorandum and Order should not be construed as
an indication that the Court believes that Mr. Spencer is disabled or that he 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.

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Conclusion
The Commissioner’s final decision denying Craig Spencer’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: 3/27/2017
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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