Stephens v. Commissioner of the Social Security Administration
OPINION AND ORDER: The decision of the Commissioner of Social Security is REVERSED and this case is REMANDED for proceedings consistent with this Opinion and Order pursuant to Sentence Four of 42 U.S.C. Section 405(g).Signed by Judge Rudy Lozano on 3/18/14. (cer)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
KIRK W. STEPHENS
CAROLYN W. COLVIN,
of Social Security
CAUSE NO. 1:13-CV-66
OPINION AND ORDER
Commissioner of Social Security's decision denying Supplemental
For the reasons set forth below, the Commissioner
of Social Security's final decision is REVERSED and this case is
REMANDED for proceedings consistent with this opinion pursuant to
sentence four of 42 U.S.C. section 405(g).
On May 22, 2008, Stephens applied for SSI under Title XVI of
application was denied initially on July 15, 2008.
filed a new application for SSI on March 31, 2010, alleging
disability beginning January 5, 2007.
This claim was denied
initially on July 17, 2010, and upon reconsideration on November
In response, Stephens filed a written request for a
hearing on January 7, 2011.
On September 16, 2011, Stephens appeared with counsel before
Administrative Law Judge (“ALJ”) Yvonne K. Stam (“Stam”) in Fort
Stephens testified at the hearing, as did Robert
S. Barkhaus, Ph.D., a vocational expert (“VE”).
On October 24,
2011, the ALJ issued a decision finding Stephens not disabled.
Stephens requested that the Appeals Council review the ALJ's
decision, and this request was denied.
As a result of the
See 20 C.F.R. § 422.210(a).
Stephens has initiated
the instant action for judicial review of the Commissioner's
final decision pursuant to 42 U.S.C. section 405(g).
Stephens was born on May 23, 1957, and was 49 years old at
the date of the alleged disability onset, and 54 at the time of
the ALJ's decision.
He has a ninth grade education.
past relevant work experience includes work as a taxi dispatcher
and security officer.
stage three chronic kidney disease, heart disease,
asthma, and arthritis.
(Tr. 72, 187).
He later alleged that he
also suffered from morbid obesity, COPD, thoracic degenerative
disc disease, lumbar spondylosis, edema in the feet and lower
summarized as follows:
Stephens was diagnosed with Type 2 diabetes and hypertension
at least as early as August of 2004.
regular treatment for these conditions for several years.
Dr. Kinzi Stevenson examined Stephens on June 28, 2008, after
Stephens filed his first application for benefits, at the request
of the state disability determination agency.
Stephens reported to Dr. Stevenson that he had been diagnosed
with diabetes about ten years earlier and hypertension ten to
twelve years earlier.
Dr. Stephenson found Stephens
pneumonia, wheezing, murmur, chest pain, edema, palpitations, and
“ambulates normally” and was able to get on and off the exam
table and chair without trouble.
He also found that
Stephens had 5/5 handgrip strength and motor strength of 5/5 in
upper and lower extremities bilaterally.
to Dr. Stevenson:
The patient was very cooperative and did seem
to put forth good effort during the exam. I
could not appreciate any limitations in
sitting, lifting, carrying, seeing, hearing
There appears to be very mild
neuropathy present, however he still appears
able to walk long distances and on uneven
The patient does not use any
assistive device for ambulation. ... The
patient complains of chest pain and it is
suggestive of angina.
In June of 2009, Dr. Steven Orlow performed a left heart
coronary artery disease and recommended medical management.
Also in June of 2009, Stephens saw Dr. Mark Meier, M.D.
Stephens reported “a constellation of symptoms
which include fatigue and shortness of breath” as well as chest
Dr. Meier’s impression was:
1. Exertional chest discomfort with dyspnea,
concerning for unstable angina.
2. Multiple risk factors including diabetes,
hypertension, obesity, history of tobacco
use, and dyslipidemia.
3. Chronic renal insufficiency, creatinine
catheterizaiton and nonselective renal angiogram.
prescribed nitroglycein and directed him to see a dietician for
consultation regarding diet and weight loss.
On July 28, 2009, Stephens was seen by Hector Perez, M.D. at
1. Hypertension, suboptimally controlled.
2. Dyspnea on exertion associated with chest tightness.
3. Known nonobstrutive coronary artery disease with a 60%
5. Stage III chronic kidney disease.
6. History of tobacco abuse, currently abstaining.
A nuclear cardiology exam was performed in May of 2010 due
to coronary artery disease, dyspnea on exertion, and chest pain.
The study revealed normal myocardial perfusion and
In June of 2010, Stephens was seen by David Ringel, D.O.,
Stephens reported that he had been diagnosed as having heart
disease with a 65% blockage.
was “well controlled” at the time.
arthritis in both knees, right ankle, shoulders, and mildly in
According to the report, Stephens could
dress and make meals, but could only stand for five to six
minutes and a total of less than thirty minutes over an eight
Stephens could only lift up to fifteen
pounds and could only drive a car for up to an hour.
He is able to do household chores and grocery shopping, but he
needs “slight adjustments and some assistance.”
Dr. Ringel found Stephens to have a slightly impaired gait,
and that he moaned as he pulled himself out of his chair.
Stephens had edema of the feet and lower legs.
Stephens' grip strength was 4/5 on his right hand, and 3/5 on his
He has full range of motion with his
cervical spine, but has restrictions in his lumbar spine, and he
is only able to do a partial squat with pain.
Ringel attributed most of Stephens’ physical symptoms to his back
He also noted that Stephens walked with a
slight limp but did not need an assistance device.
Furthermore, he found that Stephens suffered from “some loss of
find motor control of both hands.”
X-rays of Stephens left hand and wrist showed moderate to
advanced degenerative changes in June of 2010.
(Tr. 432, 434-
An x-ray of Stephens’ lumbar spine from July of 2010 showed
degenerative disc changes from T10-T11 through L1-L2, but no
change since a previous x-ray.
(Tr. 418, 430-31).
Each of the limitations referenced in this paragraph appears to be based on
Stephens’ self-report rather than the doctor’s examination of Stephens. (Tr. 412).
Stephens’ knees showed a small patellar spur or osteophyte on the
right knee but were otherwise normal.
apnea, obesity, hypertension, diabetes mellitus, chronic kidney
disease, and allergic rhinitis.
He recommended a
sleep study; that study confirmed obstructive sleep apnea.
residual functional capacity assessment for Stephens.
occasionally and 10 pounds frequently, stand and sit about 6
hours in an 8-hour workday, and was unlimited in his ability to
Stephens be limited to occasional climbing, balancing, stooping,
kneeling, crouching, and crawling.
Dr. Kulkarni’s impression was
He recommended a lumbar facet steroid
On August 26, 2010, Stephens saw Dr. Christopher LaSalle,
7 out of 10.
Stephens reported sharp stabbing pain rated at
Dr. LaSalle’s impression was “Left
Wrist Degenerative Osteoarthritis thumb CMC joint.”
Treatment options, including surgery, were discussed.
Dr. Eric Jenkinson, M.D. diagnosed Stephens with bilateral
knee degenerative osteoarthritis. (Tr. 482-86).
In August and
September, Dr. Jenkinson performed a series of three injections
in Stephens’ knees.
improvement in his knee pain.
Stephens reported little
On October 12, 2010, Stephens saw Dr. Jenkinson. (Tr. 60812).
Jenkinson diagnosed cervical and shoulder pain.
A home exercise program was recommended to strengthen his rotator
cuff and improve function.
Stephens’ BMI was 43.95.
Stephens is on many different medications, and the record
reflects many changes in his medication regimen.
In May of 2011,
hydrocodone-acetaminophen, levemir, loratadine, magnesium oxide,
Stephens testified that he lives in Fort Wayne, Indiana,
with his mother and uncle.
He had not worked since
May of 2008.
A typical day for Stephens included
taking his medicine and shots, eating meals, playing with his
dog, and watching television.
He normally does not
leave town, but he drives to doctor appointments and grocery
Stephens testified that his medications
caused him to be tired, and that it was hazardous when he was
driving a taxi.
Stephens testified that if he gets overexerted, which is
caused by physical activity, he has to use an inhaler due to his
groceries, both because he would get out of breath and his legs
would hurt too much.
He testified that he has a lot
Prostate problems cause him to take a bathroom break every hour.
He testified that he can stand between five and ten minutes
before needing to take a break, and can only walk approximately
estimates he could sit for about a half hour.
believes he could lift about 10 pounds.
He said that his medications cause him to fall asleep two
to three times during the day.
He testified that he
has difficulty looking at a computer screen for more than a half
an hour before having problems with his vision.
Review of Commissioner's Decision
decision to deny social security benefits.
42 U.S.C. § 405(g).
“The findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive.
. . .”
Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support
Richardson v. Perales, 402 U.S. 389, 401 (1971).
In determining whether substantial evidence exists, the Court
shall examine the record in its entirety but shall not substitute
its own opinion for the ALJ’s by reconsidering the facts or reweighing evidence.
Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir.
With that in mind, however, this Court reviews the ALJ’s
findings of law de novo and if the ALJ makes an error of law, the
Court may reverse without regard to the volume of evidence in
support of the factual findings.
White v. Apfel, 167 F.3d 369,
373 (7th Cir. 1999).
As a threshold matter, for a claimant to be eligible for DIB
under the Social Security Act, the claimant must establish that
he is disabled. To qualify as being disabled, the claimant must
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 twelve months.
42 U.S.C. §§ 423(d)(1)(A).
To determine whether a claimant has
satisfied this statutory definition, the ALJ performs a five step
activity? If yes, the claim is disallowed; if no, the
inquiry proceeds to step 2.
Is the claimant’s impairment or combination of
impairments “severe” and expected to last at least
twelve months? If not, the claim is disallowed; if yes,
the inquiry proceeds to step 3.
Does the claimant have an impairment or combination of
impairments that meets or equals the severity of an
impairment in the SSA’s listing of impairments, as
described in 20 C.F.R. § 404 Subpt. P, App. 1? If yes,
then claimant is automatically disabled; if not, then
the inquiry proceeds to step 4.
Is the claimant able to perform his past relevant work?
If yes, the claim is denied; if no, the inquiry
proceeds to step 5, where the burden of proof shifts to
Is the claimant able to perform any other work within
his residual functional capacity in the national
economy? If yes, the claim is denied; if no, the
claimant is disabled.
20 C.F.R. §§ 404.1520(a)(4)(i)-(v) and 416.920(a)(4)(i)-(v); see
also Herron v. Shalala, 19 F.3d 329, 333 n. 8 (7th Cir. 1994).
In this case, the ALJ found that Stephens had not engaged in
At step two, the ALJ found that
Stephens suffered from chronic kidney disease, diabetes mellitus,
At step three, the ALJ found that Stephens did not have an
impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments.
In doing so, the ALJ found that Stephens' osteoarthritis of the
spine did not meet or medically equal listing 1.04 because there
was no evidence of nerve root compression, spinal arachnoiditis,
or spinal stenosis resulting in pseudoclaudication.
The ALJ concluded that Stephens' osteoarthritis of the knee fell
anatomical deformity with limitation of motion and findings on
narrowing, bony destruction or ankylosis of the affected joint
with inability to ambulate effectively” and the record did not
support those findings.
In addition, the ALJ found
that Stephens' COPD did not meet or medically equal listing 3.02
because he did not meet the required FEVI reading.
Finally, the ALJ found that Stephens had an “extreme” level of
obesity, and that while there was no listing that considers
obesity on the claimant's other impairments” as required by SSR
The ALJ then found that Stephens had the residual functional
lift, carry, push, and pull 20 pounds
occasionally and 10 pounds frequently, sit
for about six hours in an eight-hour workday,
stand and walk in combination for about six
hours in an eight-hour workday, occasionally
climb, balance, stoop, kneel, crouch and
exposure to pulmonary irritants such as
concerning the intensity, persistence, and limiting effects of
Finally, at step four, the ALJ relied on the testimony of
the VE to conclude that the ALJ found that Stephens was capable
officer or a taxi dispatcher.
As a result, the ALJ
found that Stephens had not been under a disability, as defined
in the Social Security Act, from March 31, 2010, through the
date of the decision.
Stephens believes that the ALJ committed several errors.
Stephens argues that the ALJ failed to properly consider the
side effects of Stephens' medications, the medical opinion of
Dr. Ringel, and the effect of Stephens' obesity on his other
Stephens also believes that ALJ committed error by
ignoring certain impairments: heart disease, fecal incontinence,
arthritis of the right ankle, and loss of fine-motor control in
determination that Stephens is not credible is flawed.
testimony in violation of SSR 96-7p by relying on meaningless
boilerplate language and failing to properly consider the seven
The Commissioner disagrees.
Because the ALJ is best positioned to judge a claimant’s
Barnhart, 390 F.3d 500, 504 (7th Cir. 2004).
However, when a
claimant produces medical evidence of an underlying impairment,
the ALJ may not ignore subjective complaints solely because they
are unsupported by objective evidence.
Schmidt v. Barnhart, 395
F.3d 737, 745-47 (7th Cir. 2005); Indoranto v. Barnhart, 374
F.3d 470, 474 (7th Cir. 2004) (citing Clifford v. Apfel, 227
F.3d 863, 872 (7th Cir. 2000)).
about limitations on [his] daily activities solely by stating
that such testimony is unsupported by the medical evidence.”
Instead, the ALJ must make a credibility determination that
is supported by record evidence and sufficiently specific to
make clear to the claimant, and to any subsequent reviewers, the
weight given to the claimant’s statements and the reasons for
Lopez v. Barnhart, 336 F.3d 535, 539-40 (7th Cir.
In evaluating the credibility of statements supporting a
requirements of SSR 96-7p.
941-42 (7th Cir. 2002).
Steele v. Barnhart, 290 F.3d 936,
This ruling requires ALJs to articulate
cannot merely state that “the individual’s allegations have been
considered” or that “the allegations are (or are not) credible.”
SSR 96-7p, 1996 WL 374186 (1996).
Furthermore, the ALJ must
consider specific factors when assessing the credibility of an
individual’s statement including:
The individual’s daily activities;
intensity of the individual’s pain or other
Factors that precipitate and aggravate the
The type, dosage, effectiveness, and side
effects of any medication the individual
takes or has taken to alleviate pain or other
individual receives or has received
relief of pain or other symptoms;
individual uses or has used to relieve pain
or other symptoms (e.g., lying flat on his or
her back, standing for 15 to 20 minutes every
hour, or sleeping on a board); and
Any other factors concerning the individual’s
functional limitations and restrictions due
to pain or other symptoms.
SSR 96-7p, 1996 WL 374186 (1996); C.F.R. §§ 404.1529, 416.929;
Golembiewski, 322 F.3d 912, 915-16 (7th Cir. 2003).
Here, ALJ Stam determined that “the claimant’s medically
determinable impairments could reasonably be expected to cause
some of the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of
criticized by the Seventh Circuit in Bjornson v. Astrue, 671
F.3d 640, 645 (7th Cir. 2012).
That criticism will not be
The boilerplate language utilized by ALJ Stam is
unhelpful at best, and by itself, such language is inadequate to
support a credibility finding.
See Richison v. Astrue, No. 11-
accompanied by additional reasons, a credibility determination
need not necessarily be disturbed if it is otherwise adequate.
canned language and adequately set forth the specific reasons
According to the Commissioner:
In evaluating the credibility of Plaintiff
side effects; Plaintiff’s daily activities;
diagnostic test findings; the fact that many
of Plaintiff’s impairments were controlled
with treatment; and Plaintiff’s failure to
follow through with prescribed physical
therapy (Tr. 20-23).
The ALJ’s credibility
assessment in this case was quite thorough
and was certainly not “patently wrong” as it
would need to be in order for this Court to
Schmidt v. Barnhart, 395 F.3d
737, 746-47 (7th Cir. 2005); Diaz v. Chater,
55 F.3d 300, 305 (7th Cir. 1995).
(DE 18 at 8).
Other than citing generally to the section of the
ALJ’s opinion where the ALJ discusses the medical evidence and
makes her credibility determination, the Commissioner provides
no further explanation of why she believes the ALJ’s credibility
analysis addressed all the factors listed above.
persistence, or functionally limiting effects of pain or other
symptoms are not substantiated by objective medical evidence.
The ALJ then summarized the claimant’s testimony as
The claimant testified that he lives with
his mother and uncle.
He said he has not
been able to work due to problems with
breathing, pain in his back and legs, and
He said he was a
dispatcher for a taxi company from 1998 to
2000, but the payroll administrator was HR
America as shown on his earnings records.
He said he last drove a taxi in December
2007. He said he gets short of breath with
Also, his legs hurt if he walks
He has pain in his lower back,
hips and knees.
He said that before
because of difficulty urinating.
occasional incontinence about two or three
times a week. He said he needs to go to the
bathroom about once per hour.
He said he
can stand five to 10 minutes, walk about 100
feet, sit for about 30 minutes, and lift and
carry 10 pounds.
He said it is now harder
to climb stairs and shop for groceries than
it was when he filed his prior claim.
said he can’t stand long enough to cook or
He watches television, plays
with his dog, and drives to appointments.
Under questioning by his representative, he
said he had joint replacement surgery on his
left hand, and he now has pain and can’t use
it fully. His right shoulder also hurts all
His medications make him tired.
He said he doesn’t have much energy.
falls asleep twice or more during the day.
He said his eyes would get blurry and give
him a headache after 30 minutes of looking
at a computer screen or reading. He said he
started using a CPAP machine for his sleep
apnea, but it has not improved his daytime
She then included the boilerplate language cited
The ALJ next offered this statement:
admitted activities are not consistent with
total disability. Regarding activities, his
function report indicates that he has no
problems with personal care, cooks simple
meals, shops when necessary, plays games on
a computer, does household chores, drives to
appointments, does laundry, and mows grass
with a lawn tractor (Ex. 6E).
record shows that he has several conditions
that reasonably would limit his exertional
ability, especially since he filed the
current claim, but the evidence does not
establish limitations beyond those in the
above residual functional capacity.
The ALJ then offered a summary of the medical evidence,
concluded that her RFC is consistent with the medical evidence,
and made no further comments regarding Stephens’ credibility.
This Court must decide whether there is a logical bridge
language, the ALJ has offered no explicit reason for finding
Stephens’ testimony not credible.
Her statements suggest that,
because she believed neither the medical records nor Stephens’
limitations of function must be less than fully credible.
credibility determinations are made “whenever statements about
the intensity, persistence, or functionally limiting effects of
pain or other symptoms are not substantiated by the objective
(Tr. 20). Accordingly, the whole point of
claimant’s allegations are credible despite the fact that they
Activities of daily living are a legitimate consideration, but
weight on a claimant’s ability to engage in activities of daily
2009)(the “ability to cook, clean, do laundry, and vacuum ... do
not necessarily establish that a person is capable of engaging
in substantial physical activity” and “[t]he ALJ should have
activities of daily living and the medical evidence.”).
There are comments in the relevant section of the ALJ’s
decision that relate to some of the factors an ALJ is required
Stephens’ alleged symptoms are summarized, the ALJ noted that
Stephens claimed that activity caused shortness of breath, and
increments to avoid incontinence.
The ALJ provided many details
Unfortunately, she failed to link her statements to her finding
that Stephens is less than fully credible, leaving the Court to
speculate regarding her reasons - something this Court cannot
Furthermore, the ALJ failed to specify which of Stephens’
statements are credible and which the ALJ discredited, leaving
no basis for this Court to review whether the ALJ’s conclusion
is supported by substantial evidence.
F.3d 920, 922 (7th Cir. 2010).
See Parker v. Astrue, 597
See Villano v. Astrue, 556 F.3d
558, 562 (7th Cir. 2009) (because “the ALJ did not analyze the
factors required under SSR 96-7p,” “the ALJ failed to build a
[claimant’s] testimony was not credible.”).
One factor of particular importance in this case is the
side effects of medications.
Stephens detailed his medications
and their associated side-effects in his opening brief.
urination,” “extreme hunger,” “tiredness,” “drowsiness,” “back
pain,” and “difficulty breathing.”
(DE 17 at 8-10).
or drowsiness are a possible side effect of at least seven of
Stephens’ medications: carvedilol, tramadol, vicodin, symbicort,
diovan, clonidine, and omeprazole.
Stephens testified at the
hearing that the medications that he is on cause him to fall
asleep a lot, which was dangerous when he worked as a taxi
Given the sheer number of medications that Stephens takes
that list fatigue and tiredness as possible side-effects, the
ALJ was required to offer some explanation before discrediting
Stephens’ testimony regarding tiredness and fatigue.
evidence and the ALJ’s determination that Stephens is less than
fully credible is lacking, this Court must remand.
impairments, as required by SSR 02-1p.
(DE 17 at 16-20).
02-1p notes that:
Obesity is a risk factor that increases an
impairments in most body systems.
commonly leads to, and often complicates,
chronic diseases of the cardiovascular,
Obesity increases the risk of
developing impairments such as type II (socalled adult onset) diabetes mellitus-even
levels of fatty substances in the blood);
stroke; osteoarthritis; and sleep apnea. It
is associated with endometrial, breast,
prostate, and colon cancers, and other
Obesity may also
cause or contribute to mental impairments
such as depression.
The effects of obesity
may be subtle, such as the loss of mental
clarity and slowed reactions that may result
from obesity- related sleep apnea.
guidance to ALJs regarding how to evaluate obesity at steps two
through five of the sequential evaluation.
At step two, an ALJ
is to find that obesity is severe “when, alone or in combination
impairment(s), it significantly limits an individual’s physical
or mental ability to do basic work activities.”
At step three, because there is no listing for obesity,2 the
ruling instructs ALJs as follows:
[W]e will find that an individual with
listing if he or she has another impairment
that, by itself, meets the requirements of a
We will also find that a listing
is met if there is an impairment that, in
requirements of a listing. For example,
coexisting or related impairments to the
extent that the combination of impairments
meets the requirements of a listing.
respiratory, and cardiovascular impairments.
It may also be true for other coexisting or
* * *
We may also find that obesity, by itself, is
* * *
Or, more accurately, there is no longer a listing for obesity. Listing
9.09 was deleted in 1999. See Barthelemy v. Barnhart, 107 Fed. Appx. 689 (7th Cir.
including obesity, no one of which meets or
equals the requirements of a listing, but
the combination of impairments is equivalent
in severity to a listed impairment.
example, obesity affects the cardiovascular
and respiratory systems because of the
increased workload the additional body mass
places on these systems.
Obesity makes it
harder for the chest and lungs to expand.
This means that the respiratory systems must
work harder to provide needed oxygen.
in turn makes the heart work harder to pump
blood to carry oxygen to the body. Because
the body is working harder at rest, its
ability to perform additional work is less
than would otherwise be expected.
may find that the combination of a pulmonary
or cardiovascular impairment and obesity has
signs, symptoms, and laboratory findings
that are of equal medical significance to
one of the respiratory or cardiovascular
However, we will not make assumptions about
obesity combined with other impairments.
impairment may or may not increase the
severity or foundational limitations of the
other impairment. We will evaluate each case
based on the information in the case record.
SSR 02-1p, 2002 WL 34686281 (2002).
At steps four and five, the
Furthermore, the ruling notes that:
[t]he effects of obesity may not be obvious.
For example, some people with obesity also
have sleep apnea.
This can lead to
drowsiness and lack of mental clarity during
Obesity may also affect an
individual’s social functioning.
An assessment should also be made of the
effect obesity has upon the individual’s
ability to perform routine movement and
necessary physical activity within the work
Individuals with obesity may
have problems with the ability to sustain a
function over time. ... In cases involving
obesity, fatigue may affect the individual’s
physical and mental ability to sustain work
This may be particularly true in
cases involving sleep apnea.
The combined effects of obesity with other
impairments may be greater than might be
expected without obesity.
someone with obesity and arthritis affecting
a weight-bearing joint may have more pain
and limitation than might be expected from
the arthritis alone.
* * *
As with any other impairment, we will
explain how we reached our conclusions on
whether obesity caused any physical or
SSR 02-1p, 2002 WL 34686281 (2002).
The Seventh Circuit has emphasized the importance of the
principles set forth in SSR 02-1p.
In Martinez v. Astrue, the
Seventh Circuit found that the ALJ had committed several errors,
but that the ALJ’s gravest error was his failure to consider the
impact of the claimant’s obesity on other impairments - namely,
a bad knee.
Martinez v. Astrue, 630 F.3d 693, 698 (7th Cir.
“It is one thing to have a bad knee; it is another thing
to have a bad knee supporting a body mass index in excess of
considering an claimant’s impairments in the aggregate.
Similarly, in Villano v. Astrue, the Seventh Circuit held that
an “ALJ must specifically address the effect of obesity on a
claimant's limitations because, for example, a person who is
obese and arthritic may experience greater limitations than a
person who is only arthritic.”
Villano v. Astrue, 556 F.3d 558,
562 (7th Cir. 2009).
In Stephens’ case, the ALJ identified obesity as a severe
impairment at step two of the sequential analysis.
And, at step three, the ALJ acknowledged that Stephens had a BMI
over 40 and suffered “extreme” obesity.
The ALJ also
noted, without any further elaboration, that she “had considered
impairments, as required by SSR 02-1P.”
four, the ALJ noted that Stephens had a BMI of 37.7 in June of
2008 (almost two years before his alleged onset date), and that
he weighed 278 pounds in June of 2010.
determining Stephens’ RFC, the ALJ made no further mention of
suffered from diabetes mellitus, osteoarthritis, and COPD - each
of which tends to be exacerbated by obesity.
By failing to
Failure to consider the effect of obesity is subject to
See Villano, 556 F.3d at 562 (citing
Prochaska v. Barnhart, 454 F.3d 731, 736-67 (7th Cir. 2006), and
Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004)).
In this case, reversal is required based on
Accordingly, whether this error standing alone
would have been harmless is irrelevant.
On remand, Stephens’
obesity must be properly considered in accordance with SSR 021p.
Impairments not Addressed by the ALJ
Stephens alleges that the ALJ ignored his heart disease,
fecal incontinence, arthritis of the right ankle, and loss of
fine-motor control in his right hand.
determining whether they are disabled.
(DE 17 at 21).
The Seventh Circuit held
in Terry v. Astrue that, “[a]lthough an ALJ need not discuss
every piece of evidence in the record, the ALJ may not ignore an
entire line of evidence that is contrary to the ruling.”
v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009).
While an ALJ can
discount the severity of an impairment, he should not ignore it
“An ALJ must consider the combined effect of
all of the claimant’s impairments, even those that would not be
considered severe in isolation.”
Likewise, in Golembiewski v. Barnhart, the Seventh Circuit
noted the following:
Incontinence constitutes an impairment under
the Social Security Act that must be
considered to determine whether an applicant
Evidence that Golembiewski’s
bladder impairment did not interfere with
his work therefore would be a reason for the
ALJ to discount the disabling nature of the
problem, but it would not justify ignoring
the problem entirely as the ALJ did here.
322 F.3d 912, 918 (7th Cir. 2003).
The Commissioner, in response to Stephens’ argument, states
The ALJ did not “ignore” Plaintiff’s alleged
impairments, but reasonably found that the
record evidence did not support a finding
that those impairments were more limiting
than the ALJ found in his RFC finding.
(DE 18 at 7).
The Commissioner provides no citation to where in
the ALJ’s decision the ALJ expressed this idea.
the ALJ did not.
That is because
This Court can find no reference to heart
disease, fecal incontinence, arthritis of the right ankle, or
This Court cannot rely on the post-hoc reasoning
provided by the Commission, and it is therefore disregarded.
N.L.R.B. v. Kentucky River Community Care, Inc., 532 U.S. 706,
715 n.1 (2001).
The Commissioner does not deny that Stephens
suffers from these impairments.
The ALJ’s failure to articulate
whether Stephens has limitations due to these impairments was
For the reasons stated above, the Commissioner of Social
Security's final decision is REVERSED and this case is REMANDED
sentence four of 42 U.S.C. section 405(g).
DATED: March 18, 2014
/s/ RUDY LOZANO, Judge
United States District Court
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