Fike v. Commissioner of the Social Security Administration

Filing 28

OPINION AND ORDER REVERSING the decision of the Commissioner. The case is REMANDED to the Commissioner for further proceedings in accordance with this Opinion. The Clerk is directed to enter judgment in favor of Pla Cecil W Fike and against Dft Commissioner of Social Security. Signed by Magistrate Judge Roger B Cosbey on 4/10/2012. (lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
CECIL W. FIKE,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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CAUSE NO. 1:11-CV-00168

OPINION AND ORDER
Plaintiff Cecil W. Fike appeals to the district court from a final decision of the
Commissioner of Social Security denying his application under the Social Security Act (the
“Act”) for a period of disability and Disability Insurance Benefits (“DIB”).1 (Docket # 1.) For
the following reasons, the Commissioner’s decision will be REVERSED, and the case will be
REMANDED for further proceedings in accordance with this Opinion.
I. PROCEDURAL HISTORY
Fike applied for DIB in May 2008, alleging that he became disabled a few days earlier,
on April 28, 2008. (Tr. 13, 117.) The Commissioner denied his application initially and upon
reconsideration, and Fike requested an administrative hearing. (Tr. 59-75.) Administrative Law
Judge (“ALJ”) Yvonne Stam conducted a hearing on January 8, 2010, at which Fike, who was
represented by counsel, and a vocational expert testified. (Tr. 27-56.)
On April 12, 2010, the ALJ rendered an unfavorable decision to Fike, concluding that he

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All parties have consented to the Magistrate Judge. (Docket # 12); see 28 U.S.C. § 636(c).

was not disabled because, despite the limitations caused by his impairments, he could perform a
significant number of light work jobs in the economy. (Tr. 13-22.) The Appeals Council denied
Fike’s request for review, making the ALJ’s decision the final decision of the Commissioner.
(Tr. 1-3); see 20 C.F.R. § 404.981.
Fike filed a complaint with this Court on May 20, 2011, seeking relief from the
Commissioner’s final decision. (Docket # 1.) Fike alleges three flaws with the ALJ’s decision:
(1) that the ALJ erred by failing to discuss the opinions of his treating orthopaedic surgeons, Dr.
Chaykowski and Dr. Mackel; (2) that the ALJ erred by failing to make a credibility
determination; and (3) that the assigned residual functional capacity (“RFC”)—indicating that he
can “frequently” perform repetitive right-arm work—is not supported by substantial evidence.2
(Docket # 22.)
II. FACTUAL BACKGROUND3
A. Fike’s Background
At the time of the ALJ’s decision, Fike was fifty-two years old, had a high school
education, and possessed work experience as a laborer in a woodworking company. (Tr. 114,
152, 156.) In his DIB application, Fike alleged that he was disabled as a result of nerve damage
in his hands, a heart condition, diabetes, high blood pressure, and high cholesterol. (Tr. 151.)
At the hearing, Fike testified that he lives with his wife. (Tr. 31.) In a typical day, he

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Fike also initially argued that the ALJ erred by failing to find at least a twelve-month closed period of
disability between September 2004 and April 2006. (Pl.’s Br. 25-28.) Fike, however, abandoned this argument in his
reply brief (Docket # 27), and wisely so, since the record reflects that he engaged in substantial gainful activity
during that time period (Resp. Br. 6-7 (citing Tr. 141)).
3

In the interest of brevity, this Opinion recounts only the portions of the 439-page administrative record
necessary to the decision.

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watches television for three to four hours and helps his wife with household tasks such as
washing dishes, cooking, and sweeping the floor. (Tr. 37-39.) He also drives a car, although his
arms hurt while doing so. (Tr. 39.)
As to his physical capacity, Fike estimated that he could lift fifteen to twenty pounds, but
stated that lifting causes him arm pain. (Tr. 35.) He reported that he experiences pain in his legs
and feet when walking, sitting, or standing; on a ten-point scale, he rated his foot pain between a
“seven” and “nine” on a bad day and “four” and “six” on an average day (Tr. 35); he articulated
that medications do not help much to reduce his pain (Tr. 42). He thought that he could walk
fifty feet before needing to stop and that he could stand or sit for ten to fifteen minutes at a time.
(Tr. 35-36.) He complained that his hands swell up and ache after he performs tasks such as
frying meat in a skillet or changing antifreeze in a car, rating his upper extremity pain between a
“six” and an “eight” on bad day and a “three” and a “five” on an average day (Tr. 39-40, 46-47);
his right hand bothers him more than his left (Tr. 47). He also reported that he becomes short of
breath with exertion and that he gets headaches every two to three days. (Tr. 44.)
B. Medical Evidence Prior to Fike’s Allege Onset Date
Fike underwent bilateral carpal tunnel releases in 1984 when he was twenty-seven years
old. (Tr. 398.) In 2001, he underwent an angioplasty. (Tr. 17, 398.) He is also a diabetic. (Tr.
397.)
In March 2005, Fike was examined by Dr. Thomas Lazoff due to experiencing burning,
tingling, stiffness, and pain in both of his hands and wrist, to a greater extent in the right than the
left. (Tr. 316.) He reported that his symptoms became quite severe in October 2004, but
lessened when he was off work for many weeks; the symptoms returned, however, when he went

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back to work. (Tr. 316.) Dr. Lazoff thought that his symptoms were similar to the carpal tunnel
syndrome he had years earlier; indeed, an EMG revealed carpal tunnel syndrome, moderate on
the right and mild on the left. (Tr. 347.) Dr. Lazoff prescribed medication for nerve pain and
referred Fike to a hand surgeon. (Tr. 347.)
On March 10, 2005, Dr. Jerry Mackel saw Fike for the continued burning, tingling,
stiffness, weakness, and pain in his hands. (Tr. 316.) Fike said that he was experiencing a “great
deal of weakness” in his hands and that he can hardly move his fingers after performing two to
three hours of any repetitive activity such as spray painting or playing his bass. (Tr. 316.)
Because of Fike’s history, Dr. Mackel was somewhat hesitant to consider exploring the nerve
surgically. (Tr. 315.) Instead, he administered local injections and prescribed medication, a wrist
splint, and range of motion exercises. (Tr. 315.)
Fike returned to Dr. Mackel at the end of the month, reporting that he had experienced
some pain relief after the injections but still had severe burning and numbness on the dorsum of
his wrist and down his ring and fifth fingers. (Tr. 312.) He told Dr. Mackel that his symptoms
were better when he was off work, but when he works for even a short period of time, the
burning, swelling, stiffness, and pain increase. (Tr. 312.) Fike said that he was thinking of
retiring from his current job and going into different work that would be less likely to aggravate
his hands. (Tr. 312.) Dr. Mackel did not believe that surgery was advisable and instead
recommended that Fike wear an isotoner glove while driving in an effort to control the swelling,
burning, and pain. (Tr. 312.) He assigned Fike a work restriction of no use of the right arm and
referred him back to Dr. Lazoff. (Tr. 312, 314.)
Fike returned to Dr. Lazoff in April 2005, reporting that he had noted no improvement in

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his symptoms from the treatment prescribed by Dr. Mackel. (Tr. 308.) Dr. Lazoff increased
Fike’s medication and referred him for further diagnostic testing. (Tr. 308.)
On May 4, 2005, Fike visited Dr. Theodore Chaykowski, a colleague of Dr. Mackel’s.
(Tr. 397-98.) He diagnosed Fike with right moderate carpal tunnel syndrome and right volar
wrist ganglion in the carpel tunnel, which was confirmed by an EMG and MRI. (Tr. 397-98.)
Dr. Chaykowski, in contrast to Dr. Mackel, recommended that Fike undergo a right carpal tunnel
release and excision of the ganglion; he could not, however, assure Fike that the surgery would
relieve his symptoms. (Tr. 397.) He maintained Fike’s work restriction of “no work with the
right upper extremity.” (Tr. 397.)
On June 14, 2005, Fike underwent the right carpal tunnel release and wrist ganglion
excision surgery. (Tr. 391.) On July 11, 2005, Fike’s wrist was still “stiff and swollen,” and he
had “some wrist pain.” (Tr. 386.) Dr. Chaykowski noted that Fike’s rehabilitation would “take
longer” because of the presence of a ganglion. (Tr. 386.) He renewed Fike’s work restrictions
and instructed him to wear a right wrist splint at night. (Tr. 386.) By August 22, 2006, the
incision was “well healed”; however, Fike’s fingers and wrist were “sore and stiff,” and he had
intermittent numbness and tingling in his palm and fingers. (Tr. 384.) Nevertheless, Fike was
willing to try and return to work, and Dr. Chaykowski released him to return to work with no
restrictions. (Tr. 383.)
Three months later, on September 12, 2005, Fike returned to Dr. Chaykowski, reporting
that he is “hardly able to use his hand” by the end of a workday. (Tr. 380.) He still had pain and
intermittent tingling in his hand and felt that he could not handle the amount of work that his
employer was expecting him to perform. (Tr. 380.) Dr. Chaykowski ordered repeat

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electrodiagnostic studies and renewed Fike’s restriction of no work with the right arm. (Tr. 38081.)
On September 29, 2005, Fike told Dr. Chaykowski that he continued to have pain and
swelling in his right hand with burning and shooting pain radiating into his forearm at the same
intensity he had before surgery. (Tr. 378.) The electrodiagnostic study showed continued
median neuropathy with no substantial change in comparison to his pre-operative study. (Tr.
214.)
Fike returned to Dr. Chaykowski on October 10, 2005, reporting that his symptoms had
not improved. (Tr. 374.) Dr. Chaykowski contemplated repeating the carpal tunnel surgery, but
thought that there was less than a fifty percent chance that the surgery would be helpful. (Tr.
374.) He further opined:
[Fike] has done repetitive work with his right upper extremity for 20 some years
and this finally caught up to him. Because it is he cannot do the usual things
required of him at work and there is a good chance that he may never be able to.
Unless a different job description is available he will not be able to return to work
in that setting.
(Tr. 374.)
On October 24, 2005, Fike reported the same symptoms to Dr. Chaykowski as he did two
weeks earlier. (Tr. 370.) Fike, however, declined to undergo another surgery because of the
“relatively small chance of success with the surgery.” (Tr. 370.) Dr. Chaykowski suggested
assigning Fike a permanent work restriction of “no repetitive use of the right arm,” but noted
that, fortunately, Fike had been offered a new position involving primarily supervisory
responsibilities. (Tr. 370.) Dr. Chaykowski assigned Fike a five percent upper extremity
impairment and a three percent whole person impairment, opining that the impairment was

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“expected to be permanent and nonprogressive.” (Tr. 370.)
On April 19, 2006, Fike returned to Dr. Chaykowski, reporting that after any use of his
right hand at home or work, it swells, becomes painful, and turns blue. (Tr. 367.) Dr.
Chaykowski noted that Fike was having difficulty tolerating his job activities even though he had
been assigned a permanent work restriction of no repetitive work with the right arm. (Tr. 367.)
Dr. Chaykowski maintained this work restriction and opined that it would be better if Fike
sought an alternate type of work; he noted that no further treatment was planned for Fike. (Tr.
367.)
Nevertheless, Fike continued to work for two more years, that is, until early 2008. (Tr.
269.) He then filed an application for disability.
C. Medical Evidence After Fike’s Alleged Onset Date
On July 29, 2008, H.M. Bacchus examined Fike on behalf of the State Agency. (Tr. 26970.) He found normal gait and station and full range of motion. (Tr. 270.) Muscle strength and
tone in the upper extremities was 4/5 and in the lower extremities 5/5; grip strength was 4/5 on
the right and 3/5 on the left. (Tr. 270.) Fine finger manipulations were slow and appeared to
fatigue with repetition, and Dr. Bacchus noted sensory dullness in Fike’s distal fingers. (Tr. 270.)
He opined that with continued cardiac stability and control of his hypertension, Fike appeared
“to retain the functional capacity to perform light duties with limited fine finger manipulation.”
(Tr. 270.)
On August 8, 2008, Dr. M. Ruiz, a state agency physician, reviewed Fike’s record and
opined that he could lift ten pounds frequently and twenty pounds occasionally; stand, walk, or
sit for about six hours in an eight-hour workday; perform unlimited reaching, pushing, or

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pulling; frequently climb ramps or stairs, balance, stoop, kneel, or crouch; and occasionally
crawl or climb ladders, rope, or scaffolds. (Tr. 273-80.) He also found that Fike could perform
frequent handling, fingering, and feeling with his right hand, and occasional handling, fingering,
and feeling with his left. (Tr. 276.) Dr. Ruiz’s opinion was affirmed by a second state agency
physician in November 2008. (Tr. 298.)
Also in August 2008, Fike saw Dr. Emilio Vazquez, reporting that his legs ached badly
and that he could barely walk the majority of the time. (Tr. 286-87.) Dr. Vazquez ordered
laboratory testing, which was negative with respect to the anti-nuclear antibody and rheumatoid
factor. (Tr. 283-84.)
On September 6, 2008, Dr. Subhash Reddy of The Heart Center Medical Group penned a
letter noting Fike’s history of coronary artery disease, hyperlipidemia, diabetes, hypertension,
and stent placement in his left coronary artery. (Tr. 289.) He stated that Fike’s ongoing chest
pain rendered him “unable to perform his routine activities.” (Tr. 289.) Dr. Reddy further opined
that, because of Fike’s multiple health problems, he “strongly believe[d] that [Fike] should be
disabled.” (Tr. 289.)
In October 2008, Fike was examined by Dr. Paul Later, a neurologist, for complaints of
pain in his arms and legs. (Tr. 296.) Blood work, including Lyme titer, was normal; an EMG did
not indicate any electro-physiologic abnormality, myopathy, or neuropathy. (Tr. 409-24.) The
following month, Dr. Later suggested Fike undergo further evaluation for seronegative arthritis.
(Tr. 419.)
In November 2009, Fike was seen at St. Martin’s Healthcare for problems with his upper
extremities, loss of fine finger function, leg and foot pain, and leg numbness. (Tr. 434-39.)

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Examination showed numerous tender areas with a diagnostic impression of polymyalgia or
fibromyalgia. (Tr. 434-49.) The following month, Fike reported feeling numb from the waist
down and severe tingling in his legs and feet after standing or walking for one to two hours. (Tr.
434-39.) Physical examination did not reveal significant abnormalities; monofilament testing
showing decreased sensation in only one area out of six on his left foot and none on the right.
(Tr. 434-39.) Fike was prescribed medication. (Tr. 434-49.)
III. STANDARD OF REVIEW
Section 405(g) of the Act grants this Court “the power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the decision of the
[Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
The Court’s task is limited to determining whether the ALJ’s factual findings are supported by
substantial evidence, which means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005)
(citation omitted). The decision will be reversed only if it is not supported by substantial
evidence or if the ALJ applied an erroneous legal standard. Clifford v. Apfel, 227 F.3d 863, 869
(7th Cir. 2000).
To determine if substantial evidence exists, the Court reviews the entire administrative
record but does not re-weigh the evidence, resolve conflicts, decide questions of credibility, or
substitute its judgment for the Commissioner’s. Id. Rather, if the findings of the Commissioner
are supported by substantial evidence, they are conclusive. Jens v. Barnhart, 347 F.3d 209, 212
(7th Cir. 2003). Nonetheless, “substantial evidence” review should not be a simple rubber-stamp
of the Commissioner’s decision. Clifford, 227 F.3d at 869.

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IV. ANALYSIS
A. The Law
Under the Act, a claimant is entitled to DIB if he establishes an “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 has lasted or can be expected to last for a
continuous period of not less than 12 months . . . .” 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A). A
physical or mental impairment is “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
The Commissioner evaluates disability claims pursuant to a five-step evaluation process,
requiring consideration of the following issues, in sequence: (1) whether the claimant is currently
unemployed; (2) whether the claimant has a severe impairment; (3) whether the claimant’s
impairment meets or equals one of the impairments listed by the Commissioner, see 20 C.F.R. §
404, Subpt. P, App. 1; (4) whether the claimant is unable to perform his past work; and (5)
whether the claimant is incapable of performing work in the national economy.4 Dixon v.
Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001); 20 C.F.R. § 404.1520. An affirmative answer
leads either to the next step or, with respect to steps three and five, to a finding that the claimant
is disabled. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001). A negative answer at any
point other than step three stops the inquiry and leads to a finding that the claimant is not
disabled. Id. The burden of proof lies with the claimant at every step except the fifth, where it

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Before performing steps four and five, the ALJ must determine the claimant’s RFC, that is, what tasks the
claimant can do despite his limitations. 20 C.F.R §§ 404.1520(e), 404.1545(a). The RFC is then used during steps
four and five to help determine what, if any, employment the claimant is capable of. 20 C.F.R. § 404.1520(e).

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shifts to the Commissioner. Clifford, 227 F.3d at 868.
B. The ALJ’s Decision
On April 12, 2010, the ALJ rendered her decision. (Tr. 15-28.) She found at step one of
the five-step analysis that Fike had not engaged in substantial gainful activity after his alleged
onset date and at step two that he had the following severe impairments: diabetes mellitus,
coronary artery disease, and limited motion in his hands and fingers. (Tr. 15.) At step three, the
ALJ determined that Fike’s impairment or combination of impairments was not severe enough to
meet or equal a listing. (Tr. 16.)
Before proceeding to step four, the ALJ assigned Fike the following RFC:
[T]he claimant has the residual functional capacity to perform a limited range of
light work. He can lift and/or carry ten pounds frequently and twenty pounds
occasionally; sit or stand/walk for about six hours during an eight hour workday;
perform unlimited pushing and pulling maneuvers with his upper and lower
extremities; occasionally crawl and climb ladders, rope, and scaffolds; frequently
balance, stoop/kneel, crouch and climb ramps and stairs; occasionally handle,
finger, and feel with the left hand and frequently handle, finger, and feel with the
right dominant hand.
(Tr. 16.) Based on this RFC and the vocational expert’s testimony, the ALJ found at step four
that Fike was unable to perform his past relevant work. (Tr. 20.) The ALJ found at step five,
however, that Fike could perform a significant number of other unskilled light jobs within the
economy, including office helper, storage facility rental clerk, and stock checker. (Tr. 21.)
Therefore, Fike’s claim for DIB was denied. (Tr. 22.)
C. The ALJ Erred By Failing to Examine Dr. Chaykowski’s Opinion
Fike first argues that the ALJ erred by failing to consider the opinions of Dr. Chaykowski
and Dr. Mackel, the orthopaedic surgeons who treated him for his right upper extremity
problems from 2004 to 2006—two years prior to his alleged onset date. Most significantly, Dr.
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Chaykowski assigned Fike a permanent restriction of “no repetitive use of the right arm” in
October 2005. Fike is correct, as the ALJ’s failure to discuss at least the permanent restriction
assigned by Dr. Chaykowski necessitates a remand of the Commissioner’s final decision.
The Commissioner states: “Regardless of its source, we will evaluate every medical
opinion we receive.” 20 C.F.R. § 404.1527(c). “[M]ore weight is generally given to the opinion
of a treating physician because of his greater familiarity with the claimant’s conditions and
circumstances.” Clifford, 227 F.3d at 870; see 20 C.F.R. § 404.1527(c)(2). However, this
principle is not absolute, as a “treating physician’s opinion regarding the nature and severity of a
medical condition is [only] entitled to controlling weight if it is well supported by medical
findings and not inconsistent with other substantial evidence in the record.” Clifford, 227 F.3d at
870; accord Johansen v. Barnhart, 314 F.3d 283, 287 (7th Cir. 2002); 20 C.F.R. §
404.1527(c)(2).
Each medical opinion, other than a treating physician’s opinion that is entitled to
controlling weight, must be evaluated pursuant to the following factors in order to determine the
proper weight to apply to it: (1) the length of the treatment relationship and frequency of
examination; (2) the nature and extent of the treatment relationship; (3) how much supporting
evidence is provided; (4) the consistency between the opinion and the record as a whole; (5)
whether the treating physician is a specialist; and (6) any other factors brought to the attention of
the Commissioner. Books v. Chater, 91 F.3d 972, 979 (7th Cir. 1996); 20 C.F.R. § 404.1527(c);
see White v. Barnhart, 415 F.3d 654, 658-60 (7th Cir. 2005); Lechner v. Barnhart, 321 F. Supp.
2d 1015, 1031-32 (E.D. Wis. 2004); Windus v. Barnhart, 345 F. Supp. 2d 928, 939-43 (E.D.
Wis. 2004).

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Here, the ALJ failed to mention, much less discuss, the treatment records of Dr.
Chaykowski and Dr. Mackel from 2004 to 2006. Of course, generally speaking, an ALJ’s failure
to discuss a treating physician’s opinion necessitates a remand of the Commissioner’s final
decision. See Snider v. Astrue, No. 1:08-cv-53, 2009 WL 1766925, at *2 (N.D. Ind. June 23,
2009) (collecting cases and articulating that “the ALJ contravened longstanding administrative
and judicial precedent when he failed to evaluate the opinion of [the claimant’s] treating
physician”); Ridinger v. Astrue, 589 F. Supp. 2d 995, 1006 (N.D. Ill. 2008) (“[T]he Seventh
Circuit has consistently held that an ALJ must articulate his reasons for rejecting a treating
physician’s opinion.” (citing Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007); Skarbek v.
Barnhart, 390 F.3d 500, 503 (7th Cir. 2004))); 20 C.F.R. § 404.1527(c)(2) (“We will always
give good reasons in our notice of determination or decision for the weight we give your treating
source’s opinion.”).
The Commissioner contends, however, that the ALJ was not required to consider the
evidence from Dr. Chaykowski and Dr. Mackel because it was created at least two years before
Fike’s alleged onset date. (Resp. Br. 3.) Citing 20 C.F.R. § 404.1512(d), the Commissioner
argues that an ALJ is required to develop and consider the medical record for only the twelve
months prior to the claimant’s alleged onset date. (Resp. Br. 3.)
The Commissioner’s assertion that 20 C.F.R. § 404.1512(d) states that an ALJ needs to
“consider” the medical record for only the twelve months prior to the claimant’s alleged onset
date, however, mischaracterizes its text. This regulation addresses an ALJ’s responsibility to
develop the record, 20 C.F.R. § 404.1512(d) (“We will make every reasonable effort to help you
get medical reports from your own medical sources when you give us permission to request the

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reports.”); it does not, however, limit what documents the claimant can gather and introduce in
an attempt to prove that he is disabled.5 See Clifford, 227 F.3d at 868 (stating that the claimant
bears the burden of proof on steps one through four of the five-step analysis for disability); 20
C.F.R. § 404.1512 (a) (“In general, you have to prove to us that you are blind and disabled.”).
In that respect, 20 C.F.R. § 404.1512(a) instructs a claimant that he “must bring to [the
Commissioner’s] attention everything that shows that [he] is blind or disabled” and to “furnish
medical and other evidence that [the Commissioner] can use to reach conclusions about [his]
medical impairment(s) and . . . its effect on [his] ability to work on a sustained basis.” (Emphasis
added.) The regulation then defines “evidence” as “anything you or anyone else submits to us or
that we obtain that relates to your claim.” 20 C.F.R. § 404.1512(b). Here, Dr. Chaykowski’s and
Dr. Mackel’s treatment records became “evidence” when Fike submitted them to the record in
January 2010.
The Seventh Circuit has “repeatedly stated that the ALJ’s decision must be based upon
consideration of all the relevant evidence . . . .” Herrron v. Shalala, 19 F.3d 329, 333 (7th Cir.
1994) (emphasis added). While the ALJ need not evaluate every piece of testimony and
evidence submitted, she must sufficiently articulate her assessment of the evidence to assure this
Court that she considered the important evidence and to enable this court to trace the path of her
reasoning. Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993); see Zblewski v. Schweiker, 732
F.2d 75, 79 (7th Cir. 1984) (explaining that unless the ALJ sufficiently articulates her reasoning,

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In any event, 20 C.F.R. § 404.1512(d) states that an ALJ must develop the claimant’s record for “at least
the twelve months preceding” the claimant’s filing of his DIB application, 20 C.F.R. § 404.1512(d) (emphasis
added), not only the twelve months preceding the claimant’s application date. In fact, the ALJ must develop the
record even further if “there is a reason to believe that development of an earlier period is necessary.” 20 C.F.R. §
404.1512(d).

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the reviewing court cannot tell if the ALJ rejected probative evidence or simply ignored it). “If
the ALJ were to ignore an entire line of evidence, that would fall below the minimal level of
articulation required.” Carlson, 999 F.2d at 181.
Here, the permanent restriction assigned by Dr. Chaykowski—“no repetitive use of the
right arm”—rises to the level of an entire line of evidence that the ALJ ignored. (Tr. 370.) By its
very nature—“permanent”—there is no reasonable basis upon which to infer that the restriction
somehow expired prior to Fike’s alleged onset date. Cf. Stevenson v. Chater, 105 F.3d 1151,
1155 (7th Cir. 1997) (“The ALJ was entitled to make reasonable inferences from the evidence
before him . . . .” (emphasis added and citation omitted)). This restriction completely contradicts
the RFC assigned by the ALJ indicating that Fike is able to “frequently handle, finger, and feel
with the right dominant hand.” (Tr. 16.) Indeed, if the ALJ was uncertain about the applicability
of Dr. Chaykowski’s “permanent restriction” to the relevant time period, she could have
contacted him to request additional clarification. Skarbek v. Barnhart, 390 F.3d 500, 504 (7th
Cir. 2004) (stating that an ALJ must recontact medical sources “when the evidence received is
inadequate to determine whether the claimant is disabled”); SSR 96-5p, 1996 WL 374183, at *6.
Moreover, to arrive at Fike’s RFC, the ALJ assigned “great weight” to the 2008 opinion
of the state agency physicians. (Tr. 20, 280, 298.) But these physicians never reviewed Dr.
Chaykowski’s or Dr. Mackel’s treatment notes because their notes were not placed into the
record until January 2010. (Tr. 301, 366); cf. Flener v. Barnhart, 361 F.3d 442, 448 (7th Cir.
2004) (“The fact that these physicians reviewed the entire record strengthens the weight of their
conclusions.” (emphasis added)).
As a final lob in defense of the ALJ’s decision, the Commissioner asserts that Dr.

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Chaykowski’s and Dr. Mackel’s findings—including the permanent restriction of “no repetitive
use of the right arm”—are “irrelevant and useless” because Fike continued to work full time for
two more years after the restriction was imposed. (Resp. Br. 3.) Dr. Chaykowski’s October 24,
2005, treatment note, however, quickly disposes of that argument:
I suggested a permanent work restriction of no repetitive use of the right arm. He
fortunately has been offered a new position by his employer which involves
primarily supervisory function, and he should be able to do well with this.
(Tr. 370 (emphasis added).) Thus, apparently the supervisory nature of Fike’s job duties from
late 2005 to early 2008 allowed him to continue working despite his right upper extremity
limitations. (See Tr. 42-44 (explaining that to accommodate his pain Fike regularly took an
additional, unapproved thirty to forty-five minute break during the workday, attempting to “look
busy” while doing so to avoid his supervisors’ criticism).) The three jobs cited by the ALJ,
however, require the ability to perform “frequent handling, fingering, and feeling” with the right
upper extremity (Tr. 50), and, to reiterate, this type of work directly contradicts the permanent
restriction assigned by Dr. Chaykowski.
In short, it is clear that a remand is necessary so that the ALJ can consider the opinions of
Dr. Chaykowski and Dr. Mackel, Fike’s treating orthopaedic surgeons, and most importantly,
Dr. Chaykowski’s permanent restriction of “no repetitive use of the right arm.”
D. The ALJ Erred By Failing to Assess the Credibility of Fike’s Symptom Testimony
Fike also argues that the ALJ erred by failing to assess the credibility of his symptom
testimony. Credibility determinations are the second step in a two-step process prescribed by the
regulations for evaluating a claimant’s request for disability benefits based on pain or other
symptoms. Williams v. Astrue, No. 1:08-cv-1353, 2010 WL 2673867, at *9-10 (S.D. Ind. June

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29, 2010); Behymer v. Apfel, 45 F. Supp. 2d 654, 662 (N.D. Ind. 1999); 20 C.F.R. § 404.1529;
SSR 96-7p, 1996 WL 374186, at *2. First, the ALJ must determine whether there is an
underlying medically determinable physical or mental impairment that could reasonably be
expected to produce the claimant’s pain or other symptoms. Krontz v. Astrue, No. 1:07-cv00303, 2008 WL 5062803, at *5 (N.D. Ind. Nov. 24, 2008); Williams v. Chater, 915 F. Supp.
954, 964 (N.D. Ind. 1996); 20 C.F.R. § 404.1529; SSR 96-7p. Second, the ALJ must evaluate
“the intensity, persistence, and functionally limiting effects of the symptoms . . . to determine the
extent to which the symptoms affect the individual’s ability to do basic work activities.” SSR 967p; see Herron v. Shalala, 19 F.3d 329, 334 (7th Cir. 1994); Bellmore v. Astrue, No. 4:08-cv-94,
2010 WL 1266494, at *10 (N.D. Ind. Mar. 25, 2010); 20 C.F.R. § 404.929(c). “This requires the
adjudicator to make a finding about the credibility of the individual’s statements about the
symptom(s) and its functional effects.” SSR 96-7p.
Although the ALJ explained the credibility determination process early in her decision
(Tr. 14), she neglected to actually make a determination about the credibility of Fike’s symptom
testimony. (See Tr. 15-22.) The Seventh Circuit has stated that “while we must defer to an
ALJ’s credibility assessment of a witness (unless it is patently wrong), we must first be certain
that a credibility determination has actually been made.” Schroeter v. Sullivan, 977 F.2d 391,
394-95 (7th Cir. 1992) (internal citations omitted) (remanding case where the ALJ failed to make
a credibility determination); see also Spaulding v. Barnhart, No. 05 C 6311, 2007 WL 1610445,
at *6 (N.D. Ill. Mar. 2, 2007) (same); Schwabe v. Barnhart, 338 F. Supp. 2d 941, 955-56 (E.D.
Wis. 2004) (same); Khan v. Chater, No. 96 C 2872, 1997 WL 669764, at *4 (N.D. Ill. Oct. 22,
1997) (same).

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To reiterate, “[t]he determination or decision must contain specific reasons for the
finding on credibility, supported by the evidence in the case record, and must be sufficiently
specific to make clear to the individual and to any subsequent reviewers the weight the
adjudicator gave to the individual’s statements and the reasons for that weight.” Brindisi v.
Barnhart, 315 F.3d 783, 787 (7th Cir. 2003) (quoting SSR 96-8p). The ALJ’s decision here fails
to articulate a definitive credibility determination, together with specific reasons for the finding
that were supported by the evidence of record. Therefore, this omission by the ALJ provides an
additional basis for a remand.6
V. CONCLUSION
For these reasons, the decision of the Commissioner is REVERSED, and the case is
REMANDED to the Commissioner for further proceedings in accordance with this Opinion.
The Clerk is directed to enter a judgment in favor of Fike and against the Commissioner.
SO ORDERED. Enter for this 10th day of April, 2012.
S/Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

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Because a remand is warranted so that the ALJ can reconsider the medical source opinions of record and
Fike’s credibility, the Court need not specifically address Fike’s remaining argument.
As a final point, the Court notes that Plaintiff’s counsel has again filed without leave of Court an opening
brief (Docket # 22) that exceeds the page limit established by Local Rules 7-3(d) and 7-1(e). See Smith v. Comm’r of
Soc. Sec., No. 10-cv-163 (filed on May 28, 2010) (Docket # 32, 46) (pointing out that plaintiff’s opening brief, filed
without leave of Court, grossly exceeded the page limit set by the Local Rules). Any future violations of those
provisions may result in the Court striking the offending brief sua sponte.

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