Davidson v. Commissioner of Social Security
OPINION AND ORDER: The Court hereby GRANTS the relief sought in PlaintiffsMemorandum in Support of Summary Judgment or Remand 14 , and REMANDS theCommissioner of Social Securitys final decision for further proceedings consistent with this Opinion and Order. ***Civil Case Terminated. Signed by Magistrate Judge Paul R Cherry on 3/17/2014. (rmn)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
MARILYN K. DAVIDSON,
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
CAUSE NO.: 2:12-CV-293-PRC
OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Marilyn K.
Davidson on July 26, 2012, and a Plaintiff’s Memorandum in Support of Summary Judgment or
Remand [DE 14], filed on November 14, 2012. Plaintiff requests that the decision of the
Administrative Law Judge denying her claims for disability insurance benefits and supplemental
security income be reversed or remanded for further proceedings. On February 22, 2013, the
Commissioner filed a response, and Plaintiff filed a reply on March 8, 2013. For the following
reasons, the Court grants Plaintiff’s request for remand.
On November 19, 2010, Plaintiff filed applications for disability insurance benefits and
supplemental security income, alleging an onset date of October 1, 2009. The applications were
denied initially on February 7, 2011, and upon reconsideration on April 4, 2011. Plaintiff timely
requested a hearing, which was held on September 28, 2011, before Administrative Law Judge
(“ALJ”) Bryan J. Bernstein. In appearance were Plaintiff, her attorney Kenneth McVey, and
vocational expert Sharon D. Ringenberg. The ALJ issued a written decision denying benefits on
January 12, 2012, making the following findings:
The claimant meets the insured status requirements of the Social Security Act
through March 31, 2014.
The claimant has not performed substantial gainful activity since the alleged
onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
The claimant has severe impairments.
The claimant failed to establish with reliable evidence that she has an
impairment or combination of impairments that meets or medically equals
any one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
The claimant failed to establish with reliable evidence that she experiences
limitations that would be more restrictive than the limitations accommodated
in the residual functional capacity considered here and presented to the
This individual is not able to perform work that imposes close regimentation
of production. . . . This person cannot lift and carry more than 10 pounds
occasionally and 5 pounds frequently. She predominantly uses her
nondominant hand for lifting. This person cannot successfully engage in
work demanding constant manipulation involving fine work, gripping,
grasping, twisting, turning, picking, pushing, or pulling with hands or fingers.
This person cannot undertake work in hazardous conditions. Such work
would include work requiring balance in the context of unprotected heights.
This individual cannot work around dangerous machinery or around vehicles
moving in close quarters. The claimant’s lifting would involve predominant
use of the non-dominant hand.
The claimant is unable to perform any past relevant work (20 CFR 404.1565
The claimant was born on [ ], 1962, and was 47 years old, which is defined
as a younger individual age 45-49, on the alleged disability onset date (20
CFR 404.1563 and 416.963).
The claimant has at least a high school education and is able to communicate
in English (20 CFR 404.1564 and 416.964).
Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969(a)).
The claimant has not been under a disability, as defined in the Social Security
Act, from October 1, 2009, through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).
On April 23, 2012, the Appeals Council denied Plaintiff’s request for review, leaving the
ALJ’s decision the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. On July
26, 2012, Plaintiff filed this civil action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) for review
of the Commissioner’s decision.
The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42
U.S.C. § 405(g).
Plaintiff was born in 1962 and was 47 years old on the alleged onset date. She completed the
12th grade as well as six weeks of certified nursing assistant (“CNA”) training. Her prior relevant
work includes employment as a machine operator (heavy as performed), driver (medium per the
DOT), assembly work (light work as performed), and CNA (heavy as performed, medium per DOT).
B. Medical Background
Plaintiff presented at the emergency room on September 27, 2009, after passing out briefly
and reported a history of seizures since age nine, migraine headaches, insomnia, and dizziness.
Plaintiff declined hospitalization. The diagnosis was acute orthostatic syncope, etiology uncertain;
multiple system complaints and weight loss; and possible depression. A head CT that same date was
normal. A chest x-ray revealed mild pulmonary hyperinflation with no acute disease. A brain MRI
showed a moderate number of small bilateral white matter lesions in the cerebral hemispheres
ranging in size up to 8 to 10 mm with possibilities including chronic small vessel disease,
demyelinating process such as multiple sclerosis, prior inflammation, or vasculitis. Also that date,
a Holter monitor confirmed isolated atrial premature complexes, intermittent sinus arythmia, and
intermittent sinus tachycardia.
On October 2, 2009, Plaintiff sought treatment at the Matthew 25 Clinic for headaches and
follow up of her emergency room visit, reporting depression, nausea, and migraines noted to be
frontal with photophobia and lasting about once per week for a period of 5-10 years. Plaintiff’s
medications were Amitriptyline, Imitrex, and Effexor XR.
On October 13, 2009, a Holter monitor again showed intermittent sinus arrhythmia and
intermittent sinus tachycardia, simple ventricular arrythmia, and isolated premature ventricular
complexes. A Doppler confirmed left ICA at less than 50% stenosis. The same day, a brain MRI
revealed a moderate number of small bilateral white matter lesions ranging from 8-10 mm. An ECG
was technically adequate with ejection fraction at 60% and trace insufficiency in the mitral valve.
On November 30, 2009, Plaintiff was treated at the Matthew 25 Clinic for persistent
migraine headaches and GI complaints. Effexor was discontinued, and Protonix was prescribed. She
was to continue taking Amitriptyline each night.
In December 2009, Plaintiff was administered an adrenocorticotropic hormone (“ACTH”)
stimulation test for adrenal insufficiency at Parkview Hospital.
A January 20, 2010 brain MRI again revealed extensive white matter hyper intensities either
from old inflammation, demyelinating process, migraines, or vasculitis.
On February 26, 2010, Plaintiff returned to the Matthew 25 Clinic for a scheduled follow up
on depression. She reported depression, migraine headaches, and carpal tunnel syndrome. She
reported that her gastrointestinal complaints were resolved. However, she reported that the
Amitriptyline helped her sleep but did not help the headaches. For her carpal tunnel syndrome, the
treatment note says that the plan is the “ortho clinic.” (AR 367).
On June 8, 2010, Plaintiff was treated at the Matthew 25 Clinic for migraine headaches
(frequency of twice a week) and gastroesophageal reflux disease. Imitrex was discontinued and
Plaintiff was prescribed Ultram for her headaches. She was continued on Protonix. A note indicates
that an EEG was not ordered due to financial reasons. Plaintiff also declined a GI referral for
On June 29, 2010, Plaintiff returned to the Matthew 25 Clinic. She reported falling at work
in September 2009, a history of seizures since age 11, and migraine headaches for 10-12 years. She
reported that the headaches, left frontal or bilateral, had become especially bad in the previous two
years, with four to five headaches a day, throbbing, photophobia, and nausea. Imitrex had in the past
provided some benefit but it no longer worked. The doctor determined that preventative medication
was needed and prescribed Topamax. Plaintiff also reported insomnia.
On August 4, 2010, Plaintiff was seen at the Matthew 25 Clinic, reporting chronic issues of
gastroesophageal reflux disease, headaches, insomnia, migraines, and seizures. She reported that her
headaches had decreased from daily to three times a week and were less severe. She was tolerating
the Topamax well, and the doctor continued her on Topamax. Naproxen was added due to migraines
and a history of seizures.
On September 10, 2010, Plaintiff was treated at the Matthew 25 Clinic, reporting chronic
issues of gastroesophageal reflux disease, headaches, insomnia, migraines, and seizures. Her
Amitriptyline was discontinued, and she was prescribed Citalopram. Prescriptions for Naproxen,
Protonix, Topamax, and Ultram were continued.
On November 19, 2010, Plaintiff was seen at the Matthew 25 Clinic for depression and other
psychological issues as well as migraines and gastroesophageal reflux disease. She was continued
on Naproxen, Protonix, Topamax, and Ultram, and her Citalopram was adjusted. She was directed
to follow up in four months.
On November 24, 2010, Plaintiff reported that her headaches had returned one month earlier,
four to five a week. The headaches were bifrontal with neck tension. She also complained of
insomnia and numbness and tingling. The treater noted that Plaintiff looked “unhappy.” (AR 441).
The diagnosis was migraines, depression, and seizures. The Topamax prescription was increased.
The doctor suggested that she might benefit from a different anti-depressant.
On April 13, 2011, Plaintiff was treated at the Matthew 25 Clinic for “wicked thoughts” with
a notation of depression, suicidal ideation, insomnia, migraines, and epilepsy. (R. 434-37). Cymbalta
was discontinued and she was prescribed Protonix, Topamax, and Ultram. Plaintiff returned on June
8, 2011 for depression. On July 12, 2011, she was treated for depression, seizures, gastroesophageal
reflux disease, and daily migraines.
In response to the ALJ’s questioning at the hearing, Plaintiff’s counsel indicated that there
were no EMGs in the record for the Plaintiff’s upper extremities or any treatment as to her carpal
tunnel syndrome since the 2005 surgery.
Reports of Consultative Examinations and Reviewers
On February 16, 2010, Plaintiff underwent a consultative examination for her complaint of
disability due to carpal tunnel syndrome by family practitioner Michael E. Holton, M.D. Plaintiff
reported that she had surgery on the right hand for carpal tunnel syndrome in 2005, that she had had
temporary improvement of the numbness and weakness of the hand, but that the symptoms had
returned. She had persistent numbness and weakness of both hands and reported that she drops items
unexpectedly. She reported nocturnal pain, even with using wrist braces. She told Dr. Holton that
she performed dressing and hygiene measures independently most of the time, but that she needed
help at times with cooking and washing dishes because her hands go numb. She reported no
problems with sitting, standing, or walking. Plaintiff reported that she suffered from depression,
blurred vision/photophobia, seizures, and a degree of headaches every day for about four to five
times per week that persisted even with Imitrex. Plaintiff told Dr. Holton that some abnormality was
reported on the brain MRI from January 21, 2010.
On examination, Plaintiff’s wrist dorsi/palmar flexion was 50/60. Dr. Holton noted the
healed surgical scar of the right volar wrist was consistent with carpal tunnel release. Muscular
strength and tone was normal with a rating of five out of five in all four extremities. Dr. Holton
found her fine finger manipulation to be normal. Dr. Holton’s impression was carpal tunnel
syndrome, status post right carpal tunnel release; recurring headaches; and a history of depression.
Dr. Holton opined that, based on her history, Plaintiff would likely be unable to perform repetitive
work with her hands and would need frequent rest breaks as needed.
On January 11, 2011, Plaintiff underwent a consultative examination by family practitioner,
Harold M. Bacchus, MD. Plaintiff reported that she was seeking disability benefits due to carpal
tunnel syndrome, depression, migraines, seizures, memory loss, black outs, and blurred vision.
Plaintiff reported migraine headaches three to four times per week with light and noise sensitivity
and throbbing pain that migrated to her neck; problems dropping objects and opening jars, lids, and
knobs; and numbness/tingling and pain radiating up her right shoulder. Plaintiff also reported some
short-term memory loss since her last seizure in 2009. She reported a suicide attempt in October
2010 from sleeping pills but said that she was not suicidal and felt emotionally stronger than she
was. She reported no limitations in sitting, standing, or walking and that she performed her activities
of daily living independently. She reported her medications as Cymbalta, Naproxen, Protonix, and
Topamax. Dr. Bacchus found her grip strength to be 4/5 on the right and 5/5 on the left. He found
that her fine and gross dexterity was preserved but slower on the right, and she had dullness to
sensation of the right fingers. Her mental status was crying with flat affect and depressed mood. Dr.
Bacchus’s impression was history of seizure disorder treated with Topamax, status post carpal tunnel
release with residual pain and intermittent numbness, and migraines.
On February 5, 2011, J. Sands, M.D. completed a physical residual functional capacity
(“RFC”) questionnaire. He noted a primary diagnosis of carpal tunnel syndrome with a secondary
diagnosis of seizure disorder and migraines. He found that Plaintiff could lift 20 pounds occasionally
and 10 pounds frequently; could sit or stand for six hours in an 8-hour workday; was limited in her
right upper extremity with respect to pushing or pulling; could never climb ladders, ropes and
scaffolds; could occasionally climb ramp/stairs, balance, stoop, kneel, crouch, or crawl; was limited
to occasional use of her right upper extremity for reaching in all directions (including overhead),
handling, fingering, and feeling; and was to avoid working around hazards, including unprotected
exposure to heights and operation of heavy machinery due to weakness in the right upper extremity.
Dr. Sands noted that Plaintiff’s seizures were controlled with medication. Dr. Sands cited the clinical
findings of right hand grip decreased to 4/5 with slower fine and gross dexterity and sensory dullness
in the right fingers. Dr. Sands found Plaintiff partially credible because there was no medical
evidence of record to support her complaint of blurred vision.
On February 25, 2010, Plaintiff underwent a mental status consultative examination by
Wayne J. Von Bargen, Ph.D. He noted Plaintiff’s complaints were carpal tunnel syndrome and
depression. She wore a split on her right wrist, and her affect was slightly anxious. Plaintiff reported
that she had surgery on her right wrist but that her symptoms of tingling and numbness were
returning and that the symptoms were beginning in her left wrist. She reported medications of
Imitrex, amitriptyline, Protonix, and Effexor. She reported that the Effexor helps and that she cries
all the time. Dr. Von Bargen’s impression was adjustment disorder with mixed anxiety and
depressed mood with mild concentration difficulty probably secondary to anxiety with a GAF of 60.
Dr. Von Bargen’s opinion was affirmed on April 1, 2011, by Dr. M. Ruiz.
On January 5, 2011, Plaintiff underwent a second consultative examination by Dr. Von
Bargen, who noted the previous diagnosis. Plaintiff reported sleep disturbance, appetite disturbance,
social withdrawal, a past suicide attempt, little motivation, and little accomplished in a typical day.
Dr. Von Bargen opined that, other than mild concentration difficulty, secondary to anxiety and
depression, her cognitive function appeared intact. The impression was recurrent moderate major
depressive disorder and anxiety disorder with a GAF of 55.
On January 26, 2011, Donna Unversaw, Ph.D. completed a mental residual functional
capacity assessment form, finding the Plaintiff was moderately limited in her ability to understand
and remember detailed instructions, the ability to carry out detailed instructions, the ability to
maintain attention and concentration for extended periods, and the ability to complete a normal
workday and workweek without interruptions from psychologically based symptoms and to perform
at a consistent pace without an unreasonable number and length of rest periods. Dr. Unversaw gave
great weight to the opinion of Dr. Von Bargen, as it was consistent with the available evidence. Dr.
Unversaw did not find Plaintiff to be fully credible as to her claims and their severity. Dr. Unversaw
opined that Plaintiff could understand, remember, and carry out simple repetitive tasks, could relate
on a superficial basis with coworkers and supervisors, could attend to tasks for sufficient periods of
time, and could manage the stress involved with simple work. Dr. Unversaw concluded that despite
Plaintiff’s limitations from her mental condition, she retained the ability to perform simple repetitive
tasks on a sustained basis without special considerations.
Dr. Unversaw also completed a psychiatric review technique form, finding that Plaintiff
suffered from major depressive disorder, moderate, and anxiety disorder. Dr. Unversaw considered
Plaintiff’s impairments under Listings 12.04 and 12.06, finding a mild degree of limitation in
difficulties in maintaining social functioning, a moderate degree of limitation in restriction of
activities of daily living, a moderate degree of limitation in difficulties in maintaining concentration,
persistence, or pace, and no episodes of decompensation.
C. Plaintiff’s Testimony
Plaintiff last worked in 2009 as a CNA and was terminated due to almost dropping a patient.
She did not return to work due to migraine headaches and fainting spells. After Plaintiff was
terminated, she received unemployment benefits and looked for work, but did not actively pursue
another job due to her impairments. She did not seek additional treatment for her carpal tunnel
syndrome or depression because she has no medical insurance and the Matthew 25 Clinic would
provide only limited treatment.
In 2005, Plaintiff had carpal tunnel surgery on the right wrist; however, the numbness and
pain returned, which she attributed as the reason she nearly dropped a patient at her employment.
The numbness traveled all the way up her right arm, with issues bilaterally including difficulty
brushing her teeth, combing her hair, typing, writing, and gripping. Some days were better than
others, but when numbness came over her hand or arm, she would have to rest 20-30 minutes before
regaining feeling. She testified that she cannot open a jar of jelly and that she has problems zipping
Plaintiff testified that she had been experiencing migraine headaches for over 20 years with
prior hospitalization and treatment. Plaintiff experienced migraines when she was employed, but
between her carpal tunnel syndrome and the migraines, she was no longer able to work. Her
migraines would begin in her neck and travel to her back and the front of her head within minutes.
They occurred almost daily for three to four hours at a time and sometimes all day, for which she
was unable to do anything. Her headaches were aggravated by noise and sunlight. She tried to watch
television or read, but was unable to when experiencing a migraine. Plaintiff took Topamax which
assisted with her headaches but did not change the frequency of her migraines.
Plaintiff was born with seizures and underwent electric shock therapy as a child. She
explained that there was difficulty getting her records at St. Joseph Hospital, which is where her
seizures were primarily treated. Plaintiff had not had a seizure since 2009, but continued to
Plaintiff testified that she suffered from chronic depression for over 15 years, which had
become worse over the past few years. Plaintiff had been on four or five different medications that
did not help. She explained that one of the medications made her want to kill herself, leading to a
suicide attempt with pills that her daughter stopped.
In 1987, Plaintiff was addicted to cocaine, spending three years in prison. She has not been
involved with drugs since that time. At the time of the hearing, Plaintiff was homeless and had at
times resided with her father, her aunt, and most recently her cousin. Plaintiff did not do chores and
received a lot of assistance from her daughter, including laundry and shopping. Plaintiff did not cook
due to problems with her hands.
Plaintiff testified that her medications were Effexor, Protonix, Topamax, Ultram, and Zoloft.
D. Vocational Expert Testimony
The ALJ presented the following hypothetical to the vocational expert:
This individual is not able to perform work that imposes a close
regimentation of production, close regimentation of work activity, as a consequence
of certain operational demands for functioning within close tolerances or for an
unusually rapid level of productivity.
Employees in this work face rigid expectations with close and critical
supervision that might be required when there is a high value placed by the employer
on the product quality, the raw materials, the equipment employed, upon
coordination with other workers in the pace of production.
Close and critical supervision in this context would produce unacceptable
distress, and it would prevent accommodation of personal discomfort. This work is
defined by the differences from other jobs that allow the employee some
independence in determining either the timing of different work activities or the pace
of work. Such flexibility as that in the work structure permits the employee an
opportunity to catch up with ordinary productivity, especially when there has been
This person cannot lift and carry greater than ten pounds occasionally or five
pounds frequently. Predominant use–and this would involve predominant use of the
left, non-dominant arm and hand in the course of lifting.
This person cannot successfully engage in work demanding constant
manipulation involving fine work, gripping, grasping, twisting, turning, picking,
pushing, or pulling with the hands or fingers. This individual cannot undertake work
in hazardous conditions. Such work would include jobs requiring balance in the
context of unprotected heights. This individual can’t work around dangerous
machinery or around vehicles moving in close quarters.
(AR 51-52) (emphasis added).
The VE responded that all past relevant work would be excluded. However, she testified that
there would be employment as a telephone order clerk, DOT # 209.567-014, sedentary, SVP 2 (250
jobs in region and 2,000 in Indiana); addresser, DOT # 209.587-010, sedentary SVP 2, (25-50 jobs
in the region, 200 in Indiana, and 30,000 in the nation); and charge account clerk, DOT #
205.367-010, sedentary SVP 2 (500 jobs in the region, 3,000 in Indiana, and 20,000 in the nation).
The VE testified that the lifting, carrying, and disproportionate use of the non-dominant hand
is what caused the jobs to remain at the sedentary level. The VE responded affirmatively when asked
if her testimony about the jobs was consistent with the characterization of the jobs in the DOT.
Plaintiff’s counsel then inquired whether the jobs available would change if the hypothetical
included “occasional,” as opposed to “not constant,” in the ALJ’s hypothetical for manipulating
involving fine work, gripping, grasping, and handling. The VE explained it would eliminate the
identified jobs. The VE then offered that the jobs of callout operator and surveillance system
monitor would exist but did not provide DOT numbers or the number of jobs in the economy.
STANDARD OF REVIEW
The Social Security Act authorizes judicial review of the final decision of the agency and
indicates that the Commissioner’s factual findings must be accepted as conclusive if supported by
substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ will reverse
only if the findings are not supported by substantial evidence or if the ALJ has applied an erroneous
legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Substantial evidence
consists of “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) (quoting Gudgel v. Barnhart,
345 F.3d 467, 470 (7th Cir. 2003)).
A court reviews the entire administrative record but does not reconsider facts, re-weigh the
evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its judgment
for that of the ALJ. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford v. Apfel, 227
F.3d 863, 869 (7th Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Thus, the
question upon judicial review of an ALJ’s finding that a claimant is not disabled within the meaning
of the Social Security Act is not whether the claimant is, in fact, disabled, but whether the ALJ
“uses the correct legal standards and the decision is supported by substantial evidence.” Roddy v.
Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 618
(7th Cir. 2010); Prochaska v. Barnhart, 454 F.3d 731, 734-35 (7th Cir. 2006); Barnett v. Barnhart,
381 F.3d 664, 668 (7th Cir. 2004)). “[I]f the Commissioner commits an error of law,” the Court may
reverse the decision “without regard to the volume of evidence in support of the factual findings.”
White v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999) (citing Binion v. Chater, 108 F.3d 780, 782 (7th
At a minimum, an ALJ must articulate his analysis of the evidence in order to allow the
reviewing court to trace the path of his reasoning and to be assured that the ALJ considered the
important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Diaz v. Chater, 55
F.3d 300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). An ALJ must
“‘build an accurate and logical bridge from the evidence to [the] conclusion’ so that, as a reviewing
court, we may assess the validity of the agency’s final decision and afford [a claimant] meaningful
review.” Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007) (quoting Scott, 297 F.3d at 595)); see
also O’Connor-Spinner, 627 F.3d at 618 (“An ALJ need not specifically address every piece of
evidence, but must provide a ‘logical bridge’ between the evidence and his conclusions.”); Zurawski
v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (“[T]he ALJ’s analysis must provide some glimpse into
the reasoning behind [the] decision to deny benefits.”).
To be eligible for disability benefits, a claimant must establish that she suffers from a
“disability” as defined by the Social Security Act and regulations. The Act defines “disability” as
an inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or that 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),
1382c(a)(3)(A). To be found disabled, the claimant’s impairment must not only prevent her from
doing her previous work, but considering her age, education, and work experience, it must also
prevent her from engaging in any other type of substantial gainful activity that exists in significant
numbers in the economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. §§ 404.1520(e)-(f),
When a claimant alleges a disability, Social Security regulations provide a five-step inquiry
to evaluate whether the claimant is entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The steps are: (1) Is the claimant engaged in substantial gainful activity? If yes, the claimant is not
disabled, and the claim is denied; if no, the inquiry proceeds to step two; (2) Does the claimant have
an impairment or combination of impairments that are severe? If not, the claimant is not disabled,
and the claim is denied; if yes, the inquiry proceeds to step three; (3) Do(es) the impairment(s) meet
or equal a listed impairment in the appendix to the regulations? If yes, the claimant is automatically
considered disabled; if not, then the inquiry proceeds to step four; (4) Can the claimant do the
claimant’s past relevant work? If yes, the claimant is not disabled, and the claim is denied; if no,
then the inquiry proceeds to step five; (5) Can the claimant perform other work given the claimant’s
RFC, age, education, and experience? If yes, then the claimant is not disabled, and the claim is
denied; if no, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); see
also Scheck v. Barnhart, 357 F.3d 697, 699-700 (7th Cir. 2004).
At steps four and five, the ALJ must consider an assessment of the claimant’s residual
functional capacity (“RFC”). The RFC “is an administrative assessment of what work-related
activities an individual can perform despite [his] limitations.” Dixon v. Massanari, 270 F.3d 1171,
1178 (7th Cir. 2001). The RFC should be based on evidence in the record. Craft v. Astrue, 539 F.3d
668, 676 (7th Cir. 2008) (citing 20 C.F.R. § 404.1545(a)(3)). The claimant bears the burden of
proving steps one through four, whereas the burden at step five is on the ALJ. Zurawski, 245 F.3d
at 886; see also Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
Plaintiff seeks reversal or remand of the ALJ’s decision for three reasons: (1) the ALJ failed
to properly weigh and consider all the evidence of record, resulting in an erroneous RFC
determination; (2) the ALJ improperly weighed Plaintiff’s credibility; and (3) the ALJ’s step five
finding was made in error. The Court finds that remand is required because the evidence of record,
including the consultative medical opinions, regarding Plaintiff’s right upper extremity limitations
are inconsistent with the RFC, and the VE testimony supports a finding of disabled if the RFC is
adjusted to reflect those greater limitations. The ALJ’s evaluation of this right upper extremity
impairment is implicated in Plaintiff’s RFC, credibility, and step five arguments, and the
Commissioner offers no position in response.
The RFC, which is at issue at steps four and five of the sequential evaluation, is a measure
of what an individual can do despite the limitations imposed by her impairments. Young v. Barnhart,
362 F.3d 995, 1000 (7th Cir. 2004); 20 C.F.R. §§ 404.1545(a)(1), 416.945(a); SSR 96-8p, 1996 WL
374184, *3 (July 2, 1996). The determination of a claimant’s RFC is a legal decision rather than a
medical one. 20 C.F.R. §§ 404.1527(e)(2), 416.927(e)(2); Diaz, 55 F.3d at 306 n.2. The evidence
relevant to the RFC determination includes medical history; medical signs and laboratory findings;
the effects of symptoms, including pain, that are reasonably attributed to a medically determinable
impairment; evidence from attempts to work; need for a structured living environment; and work
evaluations, if available. SSR 96-8p, at *5. The ALJ “must consider all allegations of physical and
mental limitations or restrictions and make every reasonable effort to ensure that the file contains
sufficient evidence to assess RFC.” Id. In addition, the ALJ “must consider limitations and
restrictions imposed by all of an individual’s impairments, even those that are not ‘severe’” because
they “may–when considered with limitations or restrictions due to other impairments–be critical to
the outcome of a claim.” Id.
As for the credibility determination, once the ALJ has found an impairment that reasonably
could cause the symptoms alleged, the ALJ must consider the intensity and persistence of these
symptoms.20 C.F.R. §§ 404.1529(a); 416.929(a). The ALJ must consider a claimant’s statements
about her symptoms, such as pain, and how the claimant’s symptoms affect her daily life and ability
to work, although subjective allegations of disabling symptoms alone cannot support a finding of
disability. Id. The ALJ must weigh these subjective complaints, the relevant objective medical
evidence, and any other evidence of the following factors:
The individual’s daily activities;
Location, duration, frequency, and intensity of pain or other symptoms;
Precipitating and aggravating factors;
Type, dosage, effectiveness, and side effects of any medication;
Treatment, other than medication, for relief of pain or other symptoms;
Other measures taken to relieve pain or other symptoms;
Other factors concerning functional limitations due to pain or other symptoms.
See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). When evaluating the record as a whole, the ALJ
also considers any statements or other information provided by treating or examining physicians and
other persons about the conditions and how the conditions affect the claimant. See SSR 96-7p, 1996
WL 374186 (Jul. 2, 1996); see also §§ 404.1529(c)(1); 416.929(c)(1). “Because the ALJ is in the
best position to determine a witness’s truthfulness and forthrightness . . . this court will not overturn
an ALJ’s credibility determination unless it is ‘patently wrong.’” Shideler v. Astrue, 688 F.3d 306,
310-11 (7th Cir. 2012) (internal quotation marks omitted) (quoting Skarbek v. Barnhart, 390 F.3d
500, 504-05 (7th Cir. 2004)); see also Prochaska, 454 F.3d at 738. Nevertheless, “an ALJ must
adequately explain his credibility finding by discussing specific reasons supported by the record.”
Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013) (citing Terry v. Astrue, 580 F.3d 471, 477 (7th
In this case, Plaintiff’s right upper extremity limitation was based on her history of carpal
tunnel syndrom. In his analysis of the medical evidence, the ALJ noted that the neurological
examination of Plaintiff’s right hand was not normal, “where grip strength was reduced on the right
and fine manipulation was slower but possible on the right. There was evidence of a healed scar on
the right wrist from the claimant’s previous carpal tunnel release surgery there, which the claimant
testified was done in 2005.” (AR 23). The ALJ also recounted Plaintiff’s testimony that it took
nearly a year to completely heal after the surgery, that she felt better for awhile, but that the
symptoms of pain and numbness returned in her right wrist, going up to her shoulder and that she
was starting to experience the same symptoms in her left hand. The ALJ noted that no EMG had
The ALJ concluded: “Because there is evidence that the claimant has problems with carpal
tunnel syndrome in her right hand, and may be developing carpal tunnel in the left hand, the
limitations on lifting and carrying, using only the left hand to lift, and no constant manual
manipulation were included in the residual functional capacity above.” (AR 23) (emphasis added).
The ALJ then explained why he found that Plaintiff was not more limited. First, he noted that grip
strength in her right hand was “still 4/5” and Plaintiff was able to button and zip at the exams. Id.
He commented that there were not complaints of carpal tunnel syndrome symptoms in the treatment
records until February 2010 and minimal complaints since then, with “no new treatment for this
other than prescriptions for Ultram and/or Naproxen for pain with no referral for a surgical
evaluation by Matthew 25.” The ALJ found that “[t]he lack of ongoing complaints about wrist
problems at Matthew 25 fails to support the extent of the inability to hold on to anything as the
claimant alleged at the hearing, and reduces credibility of the claimant about this problem.” (AR 23).
Finally, the ALJ wrote: “The judge notes that the claimant has a history of criminal activity
involving illegal drug abuse that diminishes her overall credibility.” (AR 23).
As a result, the ALJ included the same limitation in the RFC–that Plaintiff “cannot
successfully engage in work demanding constant manipulation involving fine work, gripping,
grasping, twisting, turning, picking, pushing, or pulling with hands or fingers.” (AR 22) (emphasis
added). The Court finds that the ALJ’s analysis of Plaintiff’s right upper extremity impairment and
resulting limitations is not supported by the medical record or a sound credibility determination. The
ALJ failed to build a logical bridge between the evidence and Plaintiff’s RFC. Most of the bases
relied on by the ALJ for discrediting Plaintiff’s right upper extremity limitations are faulty.
First, and most significant, the ALJ’s analysis of the opinions of Dr. Holton and Dr. Sands
is inconsistent. The ALJ notes that the doctors “concluded that [Plaintiff] could lift 20 pounds
occasionally and 10 pounds frequently and occasionally use her right upper extremity to reach.” (AR
24) (emphasis added). However, the ALJ “disagree[d] with this lifting/carrying/reaching assessment
based on the findings at the consultative physical exams, and giving the claimant’s testimony about
limits on using her hands and limited lifting the benefit of the doubt.” Id. The ALJ then found greater
lifting/carrying restrictions but, inexplicably, less “reaching” limitations: “the claimant cannot lift
more than 10 pounds occasionally and 5 pounds frequently. Likewise, the claimant cannot perform
constant manipulation due to carpal tunnel syndrome. However, the claimant failed to establish that
her ability to manipulate was more limited than this or that she could not reach because exam of her
right shoulder was within normal limits.” Id. It is unclear how reducing the limitations supported
by her testimony constitutes giving Plaintiff “the benefit of the doubt.”
In his February 16, 2010 opinion following a consultative examination, Dr. Holton opined
that Plaintiff “would likely be unable to perform repetitive work with the hands and would need
frequent rest breaks as needed,” even though he found that her fine finger manipulative abilities
appear “normal.” (AR 313). In the February 5, 2011 physical residual functional capacity
assessment, consultative reviewer Dr. Sands found that Plaintiff was limited in her ability to push
and pull with her right upper extremity. Dr. Sands noted that Plaintiff’s right upper extremity grip
was decreased to 4/5, that she had slower fine and gross dexterity in the right upper extremity, and
that she had sensory dullness in her right fingers. Nevertheless, he found that she was limited to
“occasional” use of her right upper extremities in all manipulative limitations of reaching in all
directions (including overhead), handling (gross manipulation), fingering (fine manipulation), and
feeling (skin receptors). Dr. Sands further imposed a limitation that Plaintiff avoid concentrated
exposure to hazards, such as machinery and heights, because of the weakness in her right upper
extremity. In evaluating the severity of her symptoms, Dr. Sands noted that the medical evidence
of record showed evidence of carpal tunnel syndrome, indicating that he found Plaintiff credible as
to that limitation.
Although the RFC determination is administrative and not medical, the ALJ’s decision must
be based on the evidence and must be logical. The only reason the ALJ gave for finding less hand
limitation was that the exam of her right shoulder was within normal limits. However, the
consultative physicians limited Plaintiff’s ability to reach not on her shoulder but rather on her hand
Moreover, most of the ALJ’s credibility analysis does not draw into question Plaintiff’s
credibility as to her right hand weakness or the consultative physician’s limitation of occasional use
of the right upper extremity in all manipulations. Although the ALJ recognizes Plaintiff’s testimony
that her pain and numbness have returned, going up to her shoulder, the ALJ does not discuss
Plaintiff’s specific testimony, set forth in the background section above, regarding the limited use
of her right hand, especially how it impacts her activities of daily living.
In noting that no EMG had been done, the ALJ failed to explore Plaintiff’s financial situation
and inability to pay for an EMG. Under Social Security Ruling 96-7p, explanations provided by the
claimant at the hearing may demonstrate good reasons why the claimant does not seek medical
treatment or does not pursue treatment in a consistent manner; one of these reasons is that “the
individual may be unable to afford treatment and may not have access to free or low-cost medical
services.” SSR 96-7p at *8; see also Craft, 539 F.3d at 679 (recognizing that the an ALJ “must not
draw any inferences” about the claimant’s condition from failure to seek treatment unless the ALJ
has explored the claimant’s explanations as to the lack of medical care and that an inability to afford
treatment is one reason that can “provide insight into the individual’s credibility” (citing SSR 96-7)).
After Plaintiff gave testimony about her right hand and wrist limitations, the ALJ asked,
“Now, you said you haven’t gone back to see a doctor for that, correct?” (AR 47-48), to which
Plaintiff responded, “No, no. I don’t have no medical, and I have mentioned it to Matthew 25 over
and over and over, and they keep telling me, you need to go to see somebody else about your hand.
There is only certain things that they’ll do for you down at Matthew 25.” (AR 48). The ALJ did not
discuss this testimony. The medical record regarding other treatments Plaintiff did not pursue due
to cost bolsters this testimony about treatment of her carpal tunnel syndrome. A February 23, 2010
“task note” from the Matthew 25 Clinic provides: “EEG’s through MRS are to be scheduled through
the referring MD’s nurse. MRS is still supposed to be notified but we do not schedule them. Pt is
fully responsible for the bill. Not sure pt is wanting to get the EEG done due to cost.” (AR 471). A
June 8, 2010 treatment note indicates that the Matthew 25 Clinic was unable to do an EEG due to
financial reasons; Plaintiff also declined a GI referral for financial reasons that same date. Regarding
treatment for mental health, Plaintiff testified that the Matthew 25 Clinic recommended that she go
to Park Center, but Park Center charged $25 or $50 for the initial visit, and she did not have the
The ALJ erred in drawing a negative inference from the lack of an EMG or the infrequency
of treatment for her carpal tunnel syndrome without exploring whether cost was a factor. If the ALJ
was concerned by the lack of an EMG to substantiate the return of Plaintiff’s carpal tunnel
syndrome, the ALJ could have ordered one. See Smith v. Apfel, 231 F.3d 433, 437 (7th Cir. 2000)
(citing 20 C.F.R. § 404.1517). Similarly, the ALJ commented in his RFC analysis that there was no
referral for surgical evaluation at the Matthew 25 Clinic but ignored the February 26, 2010 treatment
notation that the “plan” was “ortho clinic.” (AR 367). Again, Plaintiff explained that she had not
sought treatment for her carpal tunnel syndrome because of cost.
Next, the ALJ discredited Plaintiff because she could button and zip at the “exams,” citing
the two consultative examinations. In Dr. Holton’s February 16, 2010 examination report, there is
no mention of being able to button or zip; rather Dr. Holton found that “[f]ine finger manipulative
abilities appear normal,” yet “she would likely be unable to perform repetitive work with the hands
and would need frequent rest breaks as needed.” (AR 313). Similarly, at the January 20, 2011
consultative examination, Dr. Bacchus made no finding regarding Plaintiff’s ability to button and
zip; he found that she had right wrist tenderness but still had good range of motion, that her fine and
gross dexterity was preserved but slower on the right, and that she had sensory dullness to the right
fingers. At the hearing on September 28, 2011, Plaintiff testified that she was having trouble zipping
her pants. The ALJ mis-cites the evidence of record and disregards Plaintiff’s testimony that her
hand weakness was getting worse. The ALJ also does not discuss Plaintiff’s reports to Dr. Holton
of numbness, weakness, and dropping things, or her similar reports to Dr. Bacchus, such as her
difficulty opening jars, lids, and knobs, which is consistent with her extensive hearing testimony.
The ALJ’s inference regarding buttoning and zipping is unsupported by the cited evidence.
The ALJ also discredits Plaintiff’s testimony overall because she “has a history of criminal
activity involving illegal drug abuse.” (AR 23). The ALJ fails to recognize that Plaintiff testified that
she was addicted to cocaine for 10 or 11 months in 1987 and spent time in prison for possession, all
of which occurred over twenty years prior to her onset date. She testified that she had not been
involved with illegal drugs since she was released; there is no evidence of recidivism in those twenty
years. The Plaintiff went on to build a long work history working for a newspaper, in manufacturing,
as a driver, in assembly, and most recently as a CNA after taking a six-week certification course.
In fact, Plaintiff’s long work history was built notwithstanding her migraine headaches and seizures,
a fact that should have weighed in favor of her credibility, not against it. It was disingenuous of the
ALJ to discredit Plaintiff for her involvement with illegal drugs during a chapter of her life long
In this case, the errors in the credibility determination and analysis of the medical evidence
affected the limitations in the RFC, which directly impacted the outcome at step five. See Craft, 539
F.3d at 680. The ALJ posed a hypothetical to the VE that was consistent with the RFC, explaining
that the hypothetical “person cannot successfully engage in work demanding constant manipulation
involving fine work, gripping, grasping, twisting, turning, picking, pushing, or pulling with the
hands or fingers.” (AR 52) (emphasis added). However, if the ALJ had relied on the consultative
opinions that Plaintiff be limited to occasional use of the right hand for fingering, feeling, and
handling, the limitation likely would have had a significant impact on the jobs available as bilateral
manual dexterity is required for almost all unskilled sedentary work. See SSR 96–9p, 1996 WL
374185, at *8 (July 2, 1996). In fact, when asked by Plaintiff’s attorney at the hearing if the
hypothetical were changed to occasional manipulation involving fine work, gripping, grasping,
fingering, and handling with the right upper extremity, the VE testified that the jobs she had
identified would be eliminated. Although the VE then identified the positions of callout operator and
surveillance system monitor, the VE did not offer any DOT listing or the number of jobs in the
economy. Accordingly, remand is required.
B. Other Arguments
Plaintiff takes issue with the ALJ’s step two analysis, in which the ALJ did not identify any
specific severe impairments, but rather found generally that Plaintiff “has severe impairments.” (AR
17). Rather than identifying which of Plaintiff’s impairments are severe, as is done in the vast
majority of decisions, the ALJ spent five paragraphs explaining why he did not have to identify any
severe impairment with particularity, citing Taylor v. Schweiker, 739 F.2d 1240, 1243 n.2 (7th Cir.
1984), and Ishmael v. Barnhart, 212 F. Supp. 2d 865 (N.D. Ill. 2002). This ALJ is apparently not
the only one to take this course, with at least one court having found that the failure to specify which
impairment is severe at step two is not reversible error, explaining that “step two is essentially a
gatekeeping function [and that] [i]f a severe impairment is found, the analysis proceeds to step three
to consider if an impairment or combination of impairments–including those not found to be severe
at step two– meets a listed impairment.” Cole v. Astrue, 09 C 2895, 2011 WL 3468822, at *5-6
(N.D. Ill. Aug. 8, 2011) (“Thus, while the ALJ’s step two discussion could certainly have been more
carefully written, his failure to name the condition he found to be severe does not, in itself, warrant
Regardless, remand is not warranted on this point because the ALJ in fact conducted an
analysis of which impairments he found to be severe. However, he conducted the analysis after his
step three analysis but before determining the RFC. The analysis is identical to that normally seen
at step two. It is not clear why the ALJ failed to do the analysis at step two, where the analysis
assists the reader in understanding the ALJ’s subsequent step three analysis under the listings that
is based on those severe impairments. The ALJ offers no reason not to perform the severity analysis
at step two.
Plaintiff argues that the ALJ’s consideration of her migraine headaches is inaccurate. In the
opening paragraph of the RFC analysis, the ALJ found that Plaintiff does not “have a severe
impairment of migraine headaches” and that Plaintiff “did not allege medications for this condition.”
(AR 21).1 Confusingly, the ALJ had already considered whether Plaintiff met a listing at step three
for migraine headaches.
Plaintiff argues that the ALJ made inconsistent findings of “severe” and “not severe” regarding her headaches.
(Pl. Br. 11-12). However, Plaintiff appears to have confused the ALJ’s finding that her seizure disorder is severe but
controlled with medication with the ALJ’s finding that the migraine headaches are not severe.
The record is replete with treatment records adjusting Plaintiff’s migraine medications,
changing between Imitrex, Ultram, and Naproxen. The ALJ did not discuss these medications or the
fact that Plaintiff’s doctors were adjusting the medications because Plaintiff was not getting relief.
Rather, the ALJ focused solely on “evidence that she remained on Topamax for headaches as well
as seizure control with no significant changes in her course of treatment in the last couple of years
suggest[ing] that the headaches are not a severe impairment . . . .” (AR 22). On remand, the ALJ
shall consider all of Plaintiff’s migraine medications and the fact that they were often changed.
Plaintiff also argues that the ALJ did not properly consider the MRIs that showed white
matter lesions with possible sources as chronic small vessel disease, demyelinating process, prior
inflammation or vasculitis. To the extent that the ALJ is unable to determine the meaning of the
MRIs in relation to the record of Plaintiff’s ongoing complaints of migraine headaches and changing
medications over the years, a medical expert would provide the necessary interpretation. If
Plaintiff’s complaints are fully credited, her migraine headaches would affect her ability to remain
on task during the workday.
Concentration, Persistence, and Pace
In performing the special technique for evaluating mental impairments at step three of the
sequential analysis, the ALJ found that Plaintiff has moderate limitations in activities of daily living
and moderate limitations in concentration, persistence, and pace. Plaintiff argues generally, without
explanation, that the ALJ’s RFC and hypothetical placing restriction on closely regimented work
with critical supervision does not account for these moderate limitations. Remand is not warranted
on this basis.
Combination of Impairments
Plaintiff contends that the ALJ failed to consider her severe and non-severe impairments in
combination, namely her migraine headaches, carpal tunnel syndrome, seizure disorder, nausea,
depression, intermittent sinus arrhythmia and tachycardia, gastroesophageal reflux disease,
insomnia, syncope, blurred vision, memory loss, and anxiety. However, Plaintiff does not suggest
what additional limitations would result. Moreover, the ALJ did consider Plaintiff’s impairments
in combination, stating that Plaintiff did not “have an impairment or combination of impairments
that meets or medically equals any one of the listed impairments.” (AR 18); see Getch v. Astrue, 539
F.3d 473, 483 (7th Cir. 2008) (holding that the ALJ who made a finding that the claimant’s
impairments were not severe enough, “either singly or in combination,” to equal a listed impairment
satisfied the requirement that an ALJ consider the aggregate effects of a claimant’s impairments,
including impairments that, in isolation, are not severe).
Finally, Plaintiff makes several additional arguments regarding the ALJ’s step five analysis.
On remand, should the VE offer testimony regarding the account clerk position, the ALJ shall clarify
with the VE whether the DOT number is 205.367-010 or 205.367-014 as well as the SVP level for
the position. Also, depending on the ALJ’s analysis of Plaintiff’s carpal tunnel syndrome on remand,
the ALJ shall inquire about the requirement of bilateral use of the hands and fingers of each job.
Plaintiff’s arguments regarding the number of jobs available are mooted by the remand of the RFC
and credibility determinations.
Based on the foregoing, the Court hereby GRANTS the relief sought in Plaintiff’s
Memorandum in Support of Summary Judgment or Remand [DE 14], and REMANDS the
Commissioner of Social Security’s final decision for further proceedings consistent with this
Opinion and Order.
So ORDERED this 17th day of March, 2014.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
All counsel of record
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