Stephens v. Commissioner of the Social Security Administration

Filing 20

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

)
)
)
)
)
)
)
)
)
)
)

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

CAUSE NO. 1:13-CV-66

OPINION AND ORDER
This

matter

is

before

the

Court

for

review

of

the

Commissioner of Social Security's decision denying Supplemental
Security

Income

(“Stephens”).

(“SSI”)

to

Plaintiff,

Kirk

W.

Stephens

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).

BACKGROUND
On May 22, 2008, Stephens applied for SSI under Title XVI of
the

Social

Security

Act,

42

U.S.C.

§

1381

et

seq.

application was denied initially on July 15, 2008.

This

Stephens

filed a new application for SSI on March 31, 2010, alleging
disability beginning January 5, 2007.
-1-

This claim was denied

initially on July 17, 2010, and upon reconsideration on November
10, 2010.

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
Wayne, Indiana.

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.
(Tr. 16-24).
Stephens requested that the Appeals Council review the ALJ's
decision, and this request was denied.

As a result of the

denial,

Commissioner's

ALJ

decision.

Stam's

decision

became

the

See 20 C.F.R. § 422.210(a).

final

Stephens has initiated

the instant action for judicial review of the Commissioner's
final decision pursuant to 42 U.S.C. section 405(g).

DISCUSSION
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.

Stephens'

past relevant work experience includes work as a taxi dispatcher
and security officer.
Plaintiff
following

initially

medical

alleged

conditions:

that

type

-2-

2

he

suffered

diabetes,

from

the

hypertension,

stage three chronic kidney disease, heart disease,
asthma, and arthritis.

(Tr. 72, 187).

back injury,

He later alleged that he

also suffered from morbid obesity, COPD, thoracic degenerative
disc disease, lumbar spondylosis, edema in the feet and lower
legs,

urinary

effects

from

and
his

fecal

incontinence,

medications.

The

sleep

apnea,

medical

and

evidence

side

can

be

summarized as follows:
Stephens was diagnosed with Type 2 diabetes and hypertension
at least as early as August of 2004.

(Tr. 228-29).

He received

regular treatment for these conditions for several years.

(Tr.

228-40).
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.

(Tr. 241-44).

Stephens reported to Dr. Stevenson that he had been diagnosed
with diabetes about ten years earlier and hypertension ten to
twelve years earlier.
“positive

for

vision

(Tr. 241).
loss,

Dr. Stephenson found Stephens
glasses,

vertigo,

epistaxis,

pneumonia, wheezing, murmur, chest pain, edema, palpitations, and
hernia.”

(Tr.

242).

Dr.

Stephenson

found

that

Stephens

“ambulates normally” and was able to get on and off the exam
table and chair without trouble.

(Tr. 242).

He also found that

Stephens had 5/5 handgrip strength and motor strength of 5/5 in

-3-

upper and lower extremities bilaterally.

(Tr. 243).

According

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
or speaking.
There appears to be very mild
neuropathy present, however he still appears
able to walk long distances and on uneven
terrain.
The patient does not use any
assistive device for ambulation. ... The
patient complains of chest pain and it is
suggestive of angina.
(Tr. 244).
In June of 2009, Dr. Steven Orlow performed a left heart
catheterization.

(Tr.

249-52).

He

found

mild

to

moderate

coronary artery disease and recommended medical management.

(Tr.

249).
Also in June of 2009, Stephens saw Dr. Mark Meier, M.D.
(Tr. 328-29).

Stephens reported “a constellation of symptoms

which include fatigue and shortness of breath” as well as chest
discomfort.

(Tr. 328).

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
1.5.
(Tr.

329).

Dr.

Meier

indicated

Stephens

needed

catheterizaiton and nonselective renal angiogram.

-4-

a

cardiac

(Tr. 329).

He

prescribed nitroglycein and directed him to see a dietician for
consultation regarding diet and weight loss.

(Tr. 329).

On July 28, 2009, Stephens was seen by Hector Perez, M.D. at
the

vascular

calculated

medicine

Stephens’

clinic.

BMI

at

(Tr.

41.

326-27).

(Tr.

Dr.

326).

Dr.

Perez
Perez’

impressions were:
1. Hypertension, suboptimally controlled.
2. Dyspnea on exertion associated with chest tightness.
3. Known nonobstrutive coronary artery disease with a 60%
circumflex lesion.
4. Hyperlipidemia.
5. Stage III chronic kidney disease.
6. History of tobacco abuse, currently abstaining.
7. Asthma.
(Tr. 326).
A nuclear cardiology exam was performed in May of 2010 due
to coronary artery disease, dyspnea on exertion, and chest pain.
(Tr. 411-12).
function

The study revealed normal myocardial perfusion and

without

response.

regional

variation

and

a

normal

stress

ECG

(Tr. 411).

In June of 2010, Stephens was seen by David Ringel, D.O.,
for

a

Disability

Determination

Examination.

(Tr.

412-15).

Stephens reported that he had been diagnosed as having heart
disease with a 65% blockage.

(Tr. 412).

was “well controlled” at the time.

Stephens' hypertension

(Tr. 412).

He reported

arthritis in both knees, right ankle, shoulders, and mildly in
his hands.

(Tr. 412).

According to the report, Stephens could

dress and make meals, but could only stand for five to six

-5-

minutes and a total of less than thirty minutes over an eight
hour period.

(Tr. 412).

Stephens could only lift up to fifteen

pounds and could only drive a car for up to an hour.

(Tr. 412).

He is able to do household chores and grocery shopping, but he
needs “slight adjustments and some assistance.”

(Tr. 413).1

Dr. Ringel found Stephens to have a slightly impaired gait,
and that he moaned as he pulled himself out of his chair.
413).

Stephens had edema of the feet and lower legs.

(Tr.

(Tr. 413).

Stephens' grip strength was 4/5 on his right hand, and 3/5 on his
left hand.

(Tr. 413).

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.

(Tr. 413).

Dr.

Ringel attributed most of Stephens’ physical symptoms to his back
injury.

(Tr. 415).

He also noted that Stephens walked with a

slight limp but did not need an assistance device.

(Tr. 415).

Furthermore, he found that Stephens suffered from “some loss of
find motor control of both hands.”

(Tr. 415).

X-rays of Stephens left hand and wrist showed moderate to
advanced degenerative changes in June of 2010.
35).

(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).

1

X-rays of

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).

-6-

Stephens’ knees showed a small patellar spur or osteophyte on the
right knee but were otherwise normal.
On

July

6,

2010,

pulmonary

and

diagnosed

moderately

Stephens

sleep-disorders
severe

(Tr. 429).

saw

Dr.

clinic.

COPD,

Sanjay
(Tr.

probable

Jain

in

444-46).

the
He

concomitant

sleep

apnea, obesity, hypertension, diabetes mellitus, chronic kidney
disease, and allergic rhinitis.

(Tr. 445).

He recommended a

sleep study; that study confirmed obstructive sleep apnea.

(Tr.

445, 454-81).
Also

in

July

of

2010,

Dr.

Sands

completed

a

residual functional capacity assessment for Stephens.
27).

Dr.

Sands

believed

Stephens

could

lift

physical
(Tr 420-

20

pounds

occasionally and 10 pounds frequently, stand and sit about 6
hours in an 8-hour workday, and was unlimited in his ability to
push

and/or

pull.

(Tr.

421).

Dr.

Sands

recommended

that

Stephens be limited to occasional climbing, balancing, stooping,
kneeling, crouching, and crawling.
On

August

Kulkarni, DO.
thoracic

Stephens

(Tr. 490-91).
disc

(Tr. 491).

injection

therapy.

2010,

degenerative

spondylosis.
joint

24,

and

a

(Tr. 422).
was

seen

by

Dr.

Shantunu

Dr. Kulkarni’s impression was

disease,

lumbar

pain,

and

lumbar

He recommended a lumbar facet steroid
home

exercise

(Tr. 491).

-7-

program

with

physical

On August 26, 2010, Stephens saw Dr. Christopher LaSalle,
M.D.

(Tr. 488).

7 out of 10.

Stephens reported sharp stabbing pain rated at

(Tr. 488).

Dr. LaSalle’s impression was “Left

Wrist Degenerative Osteoarthritis thumb CMC joint.”

(Tr. 488).

Treatment options, including surgery, were discussed.

(Tr. 488).

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.

(Tr. 482-86).

improvement in his knee pain.

Stephens reported little

(Tr. 486).

On October 12, 2010, Stephens saw Dr. Jenkinson. (Tr. 60812).

Jenkinson diagnosed cervical and shoulder pain.

(Tr. 609).

A home exercise program was recommended to strengthen his rotator
cuff and improve function.

(Tr. 609).

Stephens’ BMI was 43.95.

(Tr. 609).
Stephens is on many different medications, and the record
reflects many changes in his medication regimen.
Stephens

was

combivent,

taking
diovan,

asprin,

benadryl,

furosemide,

In May of 2011,

carvedilol,

glyburide,

clonidine,

hydralazine,

hydrocodone-acetaminophen, levemir, loratadine, magnesium oxide,
novolog,
tramadol.

omperazole,

ProAir

HFA,

simvastatin,

symbicort,

and

(Tr. 524).

Stephens testified that he lives in Fort Wayne, Indiana,
with his mother and uncle.

(Tr. 35).

-8-

He had not worked since

May of 2008.

(Tr. 36).

A typical day for Stephens included

taking his medicine and shots, eating meals, playing with his
dog, and watching television.

(Tr. 47).

He normally does not

leave town, but he drives to doctor appointments and grocery
stores.

(Tr. 48).

Stephens testified that his medications

caused him to be tired, and that it was hazardous when he was
driving a taxi.

(Tr. 36).

Stephens testified that if he gets overexerted, which is
caused by physical activity, he has to use an inhaler due to his
COPD.

(Tr.

41-42).

He

uses

a

scooter

when

he

shops

for

groceries, both because he would get out of breath and his legs
would hurt too much.
of

pain

in

his

(Tr. 42).

knees,

hip,

He testified that he has a lot
and

lower

back.

(Tr.

42-43).

Prostate problems cause him to take a bathroom break every hour.
(Tr. 44).
He testified that he can stand between five and ten minutes
before needing to take a break, and can only walk approximately
one

hundred

feet

before

needing

to

stop.

(Tr.

estimates he could sit for about a half hour.
believes he could lift about 10 pounds.

45-46).

(Tr. 46).

He
He

(Tr. 46).

He said that his medications cause him to fall asleep two
to three times during the day.

(Tr. 50).

He testified that he

has difficulty looking at a computer screen for more than a half
an hour before having problems with his vision.

-9-

(Tr. 51-52).

Review of Commissioner's Decision
This

Court

has

authority

to

review

decision to deny social security benefits.

the

Commissioner’s

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.
. . .”

Id.

Substantial evidence is defined as “such relevant

evidence as a reasonable mind might accept as adequate to support
a decision.”

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.
2003).

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
be unable:
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.

-10-

42 U.S.C. §§ 423(d)(1)(A).

To determine whether a claimant has

satisfied this statutory definition, the ALJ performs a five step
evaluation:
Step 1:

Is
the
claimant
performing
substantial gainful
activity? If yes, the claim is disallowed; if no, the
inquiry proceeds to step 2.

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.

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.

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
the Commissioner.

Step 5:

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
any

substantial

application date.

gainful

work

(Tr. 18).

since

March

31,

2010,

the

At step two, the ALJ found that

Stephens suffered from chronic kidney disease, diabetes mellitus,
osteoarthritis,
disease (“COPD”).

obesity,

and

chronic

(Tr. 18).

-11-

obstructive

pulmonary

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.

(Tr. 19).

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.

(Tr. 19).

The ALJ concluded that Stephens' osteoarthritis of the knee fell
short

of

listing

1.02

because

the

listing

required

“gross

anatomical deformity with limitation of motion and findings on
appropriate

medically

acceptable

imaging

of

joint

space

narrowing, bony destruction or ankylosis of the affected joint
with inability to ambulate effectively” and the record did not
support those findings.

(Tr. 19).

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.

(Tr. 19).

Finally, the ALJ found that Stephens had an “extreme” level of
obesity, and that while there was no listing that considers
obesity,

the

ALJ

had

“considered

the

aggravating

effects

of

obesity on the claimant's other impairments” as required by SSR
02-1p.

(Tr. 19).

The ALJ then found that Stephens had the residual functional
capacity to:
lift, carry, push, and pull 20 pounds
occasionally and 10 pounds frequently, sit

-12-

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
crawl,
and
he
must
avoid
concentrated
exposure to pulmonary irritants such as
fumes,
odors,
dusts,
gases
and
poor
ventilation.
(Tr.

19).

The

ALJ

concluded

that

Stephens’

“statements

concerning the intensity, persistence, and limiting effects of
these

symptoms

are

not

inconsistent

with

the

assessment.”

credible
above

to

the

residual

extent

they

functional

are

capacity

(Tr. 20).

Finally, at step four, the ALJ relied on the testimony of
the VE to conclude that the ALJ found that Stephens was capable
of

performing

his

past

relevant

officer or a taxi dispatcher.

work

(Tr. 23).

as

either

a

security

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.

(Tr. 23-24).

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
ailments.

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

-13-

his

right

hand.

Lastly,

Stephens

alleges

that

the

ALJ’s

determination that Stephens is not credible is flawed.

Credibility
Stephens

argues

that

the

ALJ

improperly

discredited

his

testimony in violation of SSR 96-7p by relying on meaningless
boilerplate language and failing to properly consider the seven
credibility factors.

The Commissioner disagrees.

Because the ALJ is best positioned to judge a claimant’s
truthfulness,

this

determination

only

Court
if

it

will

overturn

an

is

patently

wrong.

Barnhart, 390 F.3d 500, 504 (7th Cir. 2004).

ALJ’s

credibility
Skarbek

v.

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)).
Further,

“the

ALJ

cannot

reject

a

claimant’s

testimony

about limitations on [his] daily activities solely by stating
that such testimony is unsupported by the medical evidence.”
Id.

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

-14-

weight given to the claimant’s statements and the reasons for
the weight.

Lopez v. Barnhart, 336 F.3d 535, 539-40 (7th Cir.

2003).
In evaluating the credibility of statements supporting a
Social

Security

application,

requirements of SSR 96-7p.
941-42 (7th Cir. 2002).
“specific

reasons”

an

ALJ

must

comply

with

the

Steele v. Barnhart, 290 F.3d 936,

This ruling requires ALJs to articulate

behind

credibility

evaluations;

the

ALJ

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:
1.

The individual’s daily activities;

2.

The
location,
duration,
frequency,
and
intensity of the individual’s pain or other
symptoms;

3.

Factors that precipitate and aggravate the
symptoms;

4.

The type, dosage, effectiveness, and side
effects of any medication the individual
takes or has taken to alleviate pain or other
symptoms;

5.

Treatment,
other
than
medication,
individual receives or has received
relief of pain or other symptoms;

6.

Any
measures
other
than
treatment
the
individual uses or has used to relieve pain
or other symptoms (e.g., lying flat on his or

-15-

the
for

her back, standing for 15 to 20 minutes every
hour, or sleeping on a board); and
7.

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
these

symptoms

inconsistent

are

with

assessment.”

not
the

(Tr.

credible
above

20).

to

the

residual
Nearly

extent

they

functional

identical

are

capacity

language

was

criticized by the Seventh Circuit in Bjornson v. Astrue, 671
F.3d 640, 645 (7th Cir. 2012).
repeated here.

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.
2274,

2012

boilerplate

WL

377674

language

(7th
such

See Richison v. Astrue, No. 11-

Cir.
as

Feb.

that

7,

2012).

utilized

by

But,
the

where

ALJ

is

accompanied by additional reasons, a credibility determination
need not necessarily be disturbed if it is otherwise adequate.
Id.

The

Commissioner

argues

that

“the

ALJ

went

beyond

the

canned language and adequately set forth the specific reasons

-16-

for

finding

the

claimant

not

credible.”

(DE

18

at

9).

According to the Commissioner:
In evaluating the credibility of Plaintiff
[sic]
subjective
complaints,
the
ALJ
properly
considered
numerous
factors
including:
Plaintiff’s
alleged
symptoms;
factors
that
exacerbated
Plaintiff’s
symptoms;
Plaintiff’s
alleged
medication
side effects; Plaintiff’s daily activities;
the
physician
opinions
of
record;
the
objective
clinical
examination
and
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
reverse it.
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.
In

her

determining
credibility

decision,
a

claimant’s

finding

the

ALJ

RFC,

where

outlined

including

statements

the

process

the

need

about

the

to

for

make

a

intensity,

persistence, or functionally limiting effects of pain or other
symptoms are not substantiated by objective medical evidence.
(Tr. 20).

The ALJ then summarized the claimant’s testimony as

follows:
-17-

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
prostate problems.
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
activity.
Also, his legs hurt if he walks
too much.
He has pain in his lower back,
hips and knees.
He said that before
prostate
surgery,
he
had
leg
swelling
because of difficulty urinating.
Since
surgery,
he
has
urinary
urgency
and
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.
He
said he can’t stand long enough to cook or
do dishes.
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
the time.
His medications make him tired.
He said he doesn’t have much energy.
He
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
fatigue symptoms.
(Tr. 20).
earlier.

She then included the boilerplate language cited
(Tr. 20).

The ALJ next offered this statement:

The
claimant’s
medical
record
and
his
admitted activities are not consistent with
-18-

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).
The medical
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.
(Tr. 21).
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.
(Tr. 21-23).
This Court must decide whether there is a logical bridge
between

the

evidence

conclusions.

Here,

outlined
outside

by

of

the

the

ALJ

and

criticized

the

ALJ’s

boilerplate

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’
activities

of

daily

disability,

she

living

therefore

were

thought

consistent
Stephens’

with

reports

total
of

limitations of function must be less than fully credible.
reasoning

is

insufficient.

As

the

ALJ’s

decision

his
This

notes,

credibility determinations are made “whenever statements about
the intensity, persistence, or functionally limiting effects of

-19-

pain or other symptoms are not substantiated by the objective
medical evidence.”
the

credibility

(Tr. 20). Accordingly, the whole point of

determination

is

to

determine

whether

the

claimant’s allegations are credible despite the fact that they
are

not

substantiated

by

the

objective

medical

records.

Activities of daily living are a legitimate consideration, but
the

Seventh

Circuit

has

cautioned

against

placing

too

much

weight on a claimant’s ability to engage in activities of daily
living.

Stewart

v.

Astrue,

561

F.3d

679,

684

(7th

Cir.

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
explained

any

inconsistencies

between

[the

claimant’s]

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
to

consider

when

determining

if

a

claimant

is

credible:

Stephens’ alleged symptoms are summarized, the ALJ noted that
Stephens claimed that activity caused shortness of breath, and
the

ALJ

reported

acknowledged
a

need

to

that

Stephens

schedule

bathroom

increments to avoid incontinence.
regarding

both

Stephens’

used

a

CPAP

breaks

machine
at

one

and
hour

The ALJ provided many details

testimony

and

the

medical

evidence.

Unfortunately, she failed to link her statements to her finding

-20-

that Stephens is less than fully credible, leaving the Court to
speculate regarding her reasons - something this Court cannot
do.

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
logical

bridge

between

the

evidence

and

his

conclusion

that

[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.
Br.

8-10).

Among

the

many

side-effects

are

(Pl.

“frequent

urination,” “extreme hunger,” “tiredness,” “drowsiness,” “back
pain,” and “difficulty breathing.”

(DE 17 at 8-10).

Tiredness

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
driver.

(Tr. 36).

-21-

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.
the

necessary

connections

or

“logical

bridge”

Because

between

the

evidence and the ALJ’s determination that Stephens is less than
fully credible is lacking, this Court must remand.

Obesity
Stephens
assess

his

also
extreme

alleges
obesity

that
and

the
its

impairments, as required by SSR 02-1p.

ALJ

failed

effects

on

to

his

(DE 17 at 16-20).

02-1p notes that:
Obesity is a risk factor that increases an
individual’s
chances
of
developing
impairments in most body systems.
It
commonly leads to, and often complicates,
chronic diseases of the cardiovascular,
respiratory,
and
musculoskeletal
body
systems.
Obesity increases the risk of
developing impairments such as type II (socalled adult onset) diabetes mellitus-even
in
children;
gall
bladder
disease;
hypertension;
heart
disease;
peripheral
vascular
disease;
dyslipidemia
(abnormal
levels of fatty substances in the blood);
stroke; osteoarthritis; and sleep apnea. It
is associated with endometrial, breast,
prostate, and colon cancers, and other
physical impairments.
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.
-22-

properly
other
SSR

SSR

02-1p,

2002

WL

34686281

(2002).

This

ruling

provides

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
with

another

medically

determinable

physical

or

mental

impairment(s), it significantly limits an individual’s physical
or mental ability to do basic work activities.”

Id.

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
obesity
“meets”
the
requirements
of
a
listing if he or she has another impairment
that, by itself, meets the requirements of a
listing.
We will also find that a listing
is met if there is an impairment that, in
combination
with
obesity,
meets
the
requirements of a listing. For example,
obesity
may
increase
the
severity
of
coexisting or related impairments to the
extent that the combination of impairments
meets the requirements of a listing.
This
is
especially
true
of
musculoskeletal,
respiratory, and cardiovascular impairments.
It may also be true for other coexisting or
related
impairments,
including
mental
disorders.
* * *
We may also find that obesity, by itself, is
medically
equivalent
to
a
listed
impairment[.]
* * *

2

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.
2004).

-23-

We
will
also
find
equivalence
if
an
individual
has
multiple
impairments,
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.
For
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.
This
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.
Thus, we
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
listings.
However, we will not make assumptions about
the
severity
or
functional
effects
of
obesity combined with other impairments.
Obesity
in
combination
with
another
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).
ruling

notes

that

obesity

can

At steps four and five, the

cause

limitation

of

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
the day.
Obesity may also affect an
individual’s social functioning.

-24-

function.

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
environment.
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
activity.
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.
For example,
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
mental limitations.
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.
2011).

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
40.”

Id.

The

Seventh

Circuit

stressed

the

importance

considering an claimant’s impairments in the aggregate.
-25-

of
Id.

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.

(Tr. 18).

And, at step three, the ALJ acknowledged that Stephens had a BMI
over 40 and suffered “extreme” obesity.

(Tr. 19).

The ALJ also

noted, without any further elaboration, that she “had considered
the

aggravating

effects

of

obesity

on

the

impairments, as required by SSR 02-1P.”

claimant's

(Tr. 19).

other

At step

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.

(Tr. 21-22).

But, in

determining Stephens’ RFC, the ALJ made no further mention of
his

obesity

limitations
especially

and

offered

imposed

by

troublesome

no

analysis

his
where

other
the

of

how

it

might

impairments.
ALJ

found

that

impact

This

is

Stephens

suffered from diabetes mellitus, osteoarthritis, and COPD - each
of which tends to be exacerbated by obesity.
articulate

how

Stephens'

extreme

-26-

obesity

By failing to

interacted

with

his

other

severe

impairments,

the

ALJ

committed

error

under

Martinez.
Failure to consider the effect of obesity is subject to
harmless-error analysis.

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)).
the

Commissioner

argument

did

regarding

Stephens’ obesity.
other errors.

not

the

offer

ALJ’s

any

response

failure

to

to

Here,

Stephens’

adequately

address

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.
Each

impairment

a

claimant

has

determining whether they are disabled.

(DE 17 at 21).
must

be

considered

in

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).

-27-

Terry

While an ALJ can

discount the severity of an impairment, he should not ignore it
all together.

Id.

“An ALJ must consider the combined effect of

all of the claimant’s impairments, even those that would not be
considered severe in isolation.”

Id.

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
is disabled.
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
that:
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
loss

of

decision.

fine-motor

control

in

his

right

hand

in

the

ALJ’s

This Court cannot rely on the post-hoc reasoning

provided by the Commission, and it is therefore disregarded.

-28-

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
error.

CONCLUSION
For the reasons stated above, 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).

DATED: March 18, 2014

/s/ RUDY LOZANO, Judge
United States District Court

-29-