Warren v. Commissioner of Social Security
OPINION AND ORDER: Court GRANTS the relief sought in the Brief in Support of Plaintiff's Motion for Summary Judgment 13 , REVERSES the final decision of the Commissioner of Social Security, and REMANDS this matter for further proceedings consistent with this Opinion and Order. Signed by Magistrate Judge Paul R Cherry on 9/15/2016. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
VINCE O. WARREN,
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
CAUSE NO.: 2:15-CV-250-PRC
OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Vince O. Warren
on July 2, 2015, and a Brief in Support of Plaintiff’s Motion for Summary Judgment [DE 13], filed
by Plaintiff on November 2, 2015. Plaintiff requests that the February 7, 2014 decision of the
Administrative Law Judge denying his claim for supplemental security income be reversed and
remanded for further proceedings. On February 5, 2016, the Commissioner filed a response, and
Plaintiff filed a reply on February 24, 2016. For the following reasons, the Court grants Plaintiff’s
request for remand.
Plaintiff filed for supplemental security income on November 13, 2012. His claim was
denied initially and upon reconsideration. Plaintiff timely requested a hearing, which was held on
January 27, 2014, and presided over by Administrative Law Judge (ALJ) Christa Zamora. Present
at the hearing were Plaintiff, his attorney, and an impartial vocational expert.
The ALJ issued a written decision on February 7, 2014, concluding that Plaintiff was not
disabled based on the following findings:
The claimant has not engaged in substantial gainful activity since November
13, 2012, the application date.
The claimant has the following severe impairment[s]: degenerative joint
disease of the lumbar spine, degenerative joint disease of the pelvis/right hip,
and chronic pain syndrome.
The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1.
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined
in 20 CFR 416.967(b) with some additional limitations. More specifically,
he is able to lift and/or carry up to 20 pounds occasionally and 10 pounds
frequently, stand and/or walk for a total of about six hours in an eight-hour
workday, and sit for a total of about six hours in an eight-hour workday. He
is further limited to no more than occasional balancing, stooping, kneeling,
crouching, crawling, and climbing.
The claimant has no past relevant work.
The claimant was born [in 1988] and was 23 years old, which is defined as
a younger individual age 18-49, on the date the application was filed.
The claimant has at least a high school education and is able to communicate
Transferability of job skills is not an issue because the claimant does not
have past relevant work.
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.
The claimant has not been under a disability, as defined in the Social Security
Act, since November 13, 2012, the date the application was filed.
(AR 1-23). Plaintiff then sought review before the Agency’s Appeals Council, which denied his
request on May 18, 2015, leaving the ALJ’s decision as the final decision of the Commissioner. See
20 C.F.R. § 416.1481. On July 2, 2015, Plaintiff filed this civil action pursuant to 42 U.S.C. §
1383(c)(3) for review of the Agency’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. This
Court thus has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42 U.S.C. §
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, 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 Cir. 1997)).
At a minimum, an ALJ must articulate her analysis of the evidence in order to allow the
reviewing court to trace the path of her 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 [a reviewing
court] 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 [her] 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 he 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. § 1382c(a)(3)(A).
To be found disabled, the claimant’s impairment must not only prevent him from doing his previous
work, but considering his age, education, and work experience, it must also prevent him from
engaging in any other type of substantial gainful activity that exists in significant numbers in the
economy. 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. § 416.920(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. § 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 no, 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 no, 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 residual
functional capacity (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. § 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 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 885-86; see also Knight v. Chater, 55 F.3d
309, 313 (7th Cir. 1995).
Plaintiff seeks reversal of the ALJ’s decision and remand for further proceedings. In support
of the requested relief, Plaintiff argues that (1) the ALJ erred in evaluating Plaintiff’s subjective
symptoms, (2) the ALJ made errors regarding Plaintiff’s mental impairments, and (3) the ALJ’s
determination of Plaintiff’s RFC does not account for Plaintiff’s pain and related limitations and is
not supported by substantial evidence.
A. Evaluation of Subjective Symptoms
In making a disability determination, the ALJ must consider a claimant’s statements about
his symptoms, such as pain, and how the symptoms affect his daily life and ability to work. See 20
C.F.R. § 416.929(a). Subjective allegations of disabling symptoms alone cannot support a finding
of disability. Id. The ALJ must weigh the claimant’s 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. § 416.929(c)(3).
Earlier this year, the Social Security Administration issued Social Security Ruling (“SSR”)
16-3p, which supersedes SSR 96-7p. SSR 16-3p, 2016 WL 1119029 (March 16, 2016). SSR 96-7p
referred to a claimant’s “credibility,” but SSR 16-3p removed that term in order to “clarify that
subjective symptom evaluation is not an examination of the individual’s character.” SSR 16-3p,
2016 WL 1119029, at *1. Though the new Ruling was issued after the ALJ’s decision in this matter,
the new Ruling is a clarification of the law and not a change in the law, so use of the new Ruling on
appeal is appropriate. Qualls v. Colvin, No. 14 CV 2526, 2016 WL 1392320, at *6 (N.D. Ill. Apr.
8, 2016) (citing Pope v. Shalala, 998 F.2d 473, 482-483 (7th Cir. 1993), overruled on other grounds
by Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999)).
As an initial matter, Plaintiff finds fault with the ALJ’s use of boilerplate language. The
Seventh Circuit Court of Appeals has often criticized the language at issue. See, e.g., Minnick v.
Colvin, 775 F.3d 929, 936 (7th Cir. 2015). But an ALJ’s use of the boilerplate language does not
amount to reversible error if she otherwise provides sufficient justification for her determination.
Pepper v. Colvin, 712 F.3d 351, 367-68 (7th Cir. 2013). Accordingly, the Court proceeds to
consideration of the substance of the ALJ’s analysis.
Plaintiff argues that the ALJ’s evaluation of Plaintiff’s symptoms is patently wrong because
she made improper inferences based on Plaintiff’s activities of daily living. The ALJ found that
Plaintiff’s impairments are not as severe as he alleges and provided three reasons for this finding:
(1) Plaintiff is able to perform many activities of daily living, (2) Plaintiff’s assertion regarding his
ability to drive is inconsistent with the evidence of record, and (3) no treating or examining
physician found Plaintiff to be limited to a greater extent than the RFC determined by the ALJ.
Plaintiff takes issue with each reason, and the Court will address each argument in turn.
The ALJ found that Plaintiff is capable of “doing household cleaning, washing dishes,
independently maintaining his personal hygiene, taking college classes, swimming and exercising,
going to church, driving, and playing board games.” (AR 21). In looking at the evidence the ALJ
cites in support of Plaintiff’s ability—that is, Exhibits 4E, 7E, 6F, and Plaintiff’s hearing
testimony—a different picture emerges.
Exhibit 4E is Plaintiff’s December 15, 2012 function report. Plaintiff reports that he receives
rides to school (which he attends part time) and therapy; alternates between standing and sitting
during his classes; performs personal hygiene tasks in ways that match his abilities, such as using
an electric razor because it is quicker and requires less time spent standing than a non-electric razor;
cleans his own room for ten minutes twice a month but needs help with the windows, bed sheets,
dusting, and vacuuming; drives “only very short distances” due to the pain of pushing the pedals;
and indicates that sitting for a quick board game is difficult. (AR 216-23).
Exhibit 7E is Plaintiff’s March 3, 2013 function report. Plaintiff again reports receiving rides
to school and therapy. (AR 237). Plaintiff also indicates that his condition has worsened since he
filled out the previous function report. (AR 244). Plaintiff reports that he plays board games lying
down, that he is no longer able to do house work, and that, due to surgery, he will not be driving.
Exhibit 6F is the January 18, 2013 consultative examination report from Dr. J. Smejkal. This
report notes that Plaintiff complains of inability to drive and to do all daily living activities
unassisted. Dr. Smejkal gives no opinion regarding Plaintiff’s ability to do the activities the ALJ
At the January 27, 2014 hearing, Plaintiff testified as follows. Plaintiff was enrolled in nine
credits of college classes at that time, all of which were online. (AR 46). He usually takes two or
three breaks in order to complete the daily work for one class, and when he was taking in-person
classes, he would normally leave about fifteen minutes early. (AR 55). Plaintiff said he is able to
clean his room, that he does dishes “from time to time,” and that he can drive two to four miles. (AR
49). He swims and performs other exercises given to him by a doctor for therapeutic reasons. (AR
52-3). He cannot swim strokes that are one arm at a time because of the torque. (AR 54).
The evidence the ALJ cites does not support her evaluation that Plaintiff’s subjective
symptoms are not as severe as alleged. Though the evidence indicates that, at times, Plaintiff could
do the activities that the ALJ listed, the evidence places several qualifications and limitations on
Plaintiff’s abilities to perform these activities. The ALJ has failed to build a logical bridge from the
evidence to her conclusion. See Beardsley v. Colvin, 758 F.3d 834, 838 (7th Cir. 2014) (finding the
ALJ’s reliance on the plaintiff’s daily activities to support the decision was undermined by the
evidence, which showed that the plaintiff’s activities were limited and mostly sedentary). Further,
the ALJ is not permitted to cherry-pick from the evidence and select only those facts which support
her conclusion. Scrogham v. Colvin, 765 F.3d 685, 699 (7th Cir. 2014) (holding that the ALJ’s
“apparent selection of only facts from the record that supported her conclusion, while disregarding
facts that undermined it, is an error in analysis that requires reversal”).
Further, Plaintiff swims and exercises as a part of his physical therapy. Physical activities
undertaken as a form of therapy, such as walking and swimming should not be used to show that a
Plaintiff can work. See Scrogham, 765 F.3d at 701 (citing Carradine v. Barnhart, 360 F.3d 751, 756
(7th Cir. 2004) (holding that walking two miles for therapeutic reasons could not support conclusion
that the plaintiff could work); Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (holding that
walking and swimming for rehabilitative purposes were “not necessarily transferable to the work
setting with regard to the impact of pain”)).
Next, the ALJ determined that Plaintiff’s alleged ability to sit for only ten to fifteen minutes
was undercut by evidence that he regularly drives for 40 minutes at a time and flies to Baton Rouge,
Louisiana, for treatment. The Commissioner does not address Plaintiff’s argument that the ALJ erred
in making this determination. The only evidence the ALJ cites in this portion of the opinion is
evidence of Plaintiff making assertions of his inabilities (Exhibit 6F, discussed above) and Plaintiff’s
hearing testimony. The ALJ mischaracterizes Plaintiff’s hearing testimony. Plaintiff testified that
his college was about 40 minutes away from his home, (AR 49), but the Court has found no
testimony indicating that he ever drove to college. The ALJ also noted that Plaintiff’s travel to Baton
Rouge for treatment “necessarily implies that he was able to remain seated for a significant portion
of that flight.” There is no evidence cited to support this assertion. Instead of making assumptions
about the amount of time Plaintiff spends sitting or Plaintiff’s pain level during the flights, the ALJ
should have asked Plaintiff about these matters at the hearing. It is possible that Plaintiff was able
to shift positions frequently during his flights or that he was willing to endure a very painful flight
in order to undergo experimental treatment at the Bone & Joint Clinic in Baton Rouge because
locally available treatments have been unsuccessful. See SSR 16-3p, 2016 WL 1119029, at *8
(“Persistent attempts to obtain relief of symptoms, such as . . . trying a variety of treatments,
referrals to specialists, or changing treatment sources may be an indication that an individual’s
symptoms are a source of distress and may show that they are intense and persistent.”). By
mischaracterizing the evidence of Plaintiff’s trips to college and failing to inquire into Plaintiff’s
flights, the ALJ has not built a logical bridge from this evidence to her conclusion.
Plaintiff also argues that the ALJ should not have considered the lack of restrictions imposed
by treating physicians on Plaintiff’s activities. In support, Plaintiff asserts that, because his activities
were “far less than even sedentary,” it is not surprising that his physicians did not further limit his
activities and the lack of restriction should not weigh against finding that his subjective symptoms
are as severe as alleged. The Commissioner counters that an ALJ is entitled to consider medical
opinions on a claimant’s ability to work. See SSR 16-3p, 2016 WL 1119029, at *6. However, the
absence of a medical opinion that Plaintiff’s activities should be restricted is not equivalent to the
presence of a medical opinion that Plaintiff’s activities should not be restricted. Nonetheless, the
Court need not resolve this issue in this case. Even if the ALJ’s consideration of the lack of medical
opinions is appropriate, the ALJ’s errors in connecting the evidence to her conclusions, discussed
above, undermine the ALJ’s evaluation of Plaintiff’s subjective symptoms and require remand.
B. Mental Impairments
Plaintiff argues that the ALJ erred by not following the “special technique” for evaluating
mental impairments. The special technique, set forth in 20 C.F.R. § 416.920a, is used at steps two
and three of the evaluation process to determine whether a claimant has a medically determinable
mental impairment and whether that impairment causes functional limitations. Craft, 539 F.3d at
674; SSR 96-8p, 1996 WL 374184 (July 2, 1996). First, the ALJ determines whether a claimant has
a medically determinable mental impairment(s) by evaluating the claimant’s “pertinent symptoms,
signs, and laboratory findings.” 20 C.F.R. § 416.920a(b)(1). The ALJ must document that finding
of a medically determinable mental impairment and rate the degree of limitation in four broad
“functional areas” known as the “B criteria”: activities of daily living; social functioning;
concentration, persistence, or pace; and episodes of decompensation. Pepper, 712 F.3d at 365 (citing
§ 404.1520a(c)(3); Craft, 539 F.3d at 674). Each assigned rating corresponds with a determination
of the severity of the mental impairment. Id. (citing 20 C.F.R. § 404.1520a(d)(1)). The ALJ must
document use of the technique, incorporating the relevant findings and conclusions into the written
decision. Id. (citing 20 C.F.R. § 404.1520a(e)(4)). The ALJ must refer to significant medical
evidence and the functional limitations she considered in reaching her conclusions about the severity
of the mental impairments. Craft, 539 F.3d at 675. The Seventh Circuit Court of Appeals has held
that, “[u]nder some circumstances, the failure to explicitly use the special technique may . . . be
harmless error.” Id. But, this is true only when the ALJ provides “enough information to support the
‘not severe’ finding,” and those reasons are supported by medical evidence. See Pepper, 712 F.3d
at 366 (internal quotation omitted).
Here, the ALJ concluded that Plaintiff “has described no significant difficulty performing
typical daily activities, functioning socially, or maintaining concentration and focus to perform
various mentally challenging tasks such as attending college classes and driving.” (AR 16). The ALJ
proceeded to find that Plaintiff’s adjustment disorder and ADHD are nonsevere impairments, noting
that the state agency psychological consultants also found the mental impairments to be nonsevere.
Though the ALJ referenced three of the four functional areas, she did not rate the degree of
limitation for these areas, noting only that Plaintiff “has described no significant difficulty” in these
areas. This is not the “special technique” set forth in the regulations, and reporting Plaintiff’s
description of his abilities is not the same as rating the degree of limitation. Furthermore, “no
significant difficulty” is not one of the degrees of limitation set forth in the regulations. See 20
C.F.R. § 404.1520a(c)(4) (“When we rate the degree of limitation in the first three functional areas
. . . , we will use the following five-point scale: None, mild, moderate, marked, and extreme.”). “No
significant difficulty” is logically consistent with findings of either no limitations or mild limitations.
When the ALJ found the impairments nonsevere, she cited the psychological consultants’ finding
of the same, but the ALJ did not note that the psychological consultants found that Plaintiff has mild
limitations in activities of daily living and in concentration, persistence, and pace. The ALJ has not
made clear whether she agrees with the psychological consultants and finds that Plaintiff has these
mild limitations. The ALJ failed to use the special technique, the Court is unable to discern from the
opinion what the ALJ’s findings regarding these limitations are, and the Court cannot follow the
ALJ’s reasoning. Remand is required.
The Commissioner is correct that mild or even moderate limitations do not necessarily
prevent an individual from functioning satisfactorily. See Sawyer v. Colvin, 512 F. App’x, 603, 611
(7th Cir.2013). However, in Sawyer, the court made that comment at step five in the context of
analyzing the vocational expert’s testimony. Here, it is unknown whether the ALJ found any mild
limitations. If any limitations were found, then the ALJ was required to consider them in
determining Plaintiff’s RFC before step four. See Craft, 539 F. 3d at 676. Additionally, though the
Commissioner asserts that even severe mental impairments may not require accommodation in an
individual’s RFC, the case the Commissioner cites to, Griffeth v. Comm’r of Soc. Sec’y, 217 F.
App’x 425 (6th Cir. 2007), is both out of circuit and not selected for publication in the Federal
Reporter. In contrast, precedential case law from the Seventh Circuit Court of Appeals requires ALJs
to consider non-severe mental impairments in making RFC assessments. Craft, 539 F.3d at 676.
When determining Plaintiff’s RFC on remand, the ALJ is instructed to consider the effects of
Plaintiff’s mental impairments and the limitations Plaintiff has as a result of the impairments.
C. Residual Functional Capacity
The RFC is a measure of what an individual can do despite the limitations imposed by his
impairments. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); 20 C.F.R. § 416.945(a). The
determination of a claimant’s RFC is a legal decision rather than a medical one. 20 C.F.R. §
416.927(e)(1); Diaz, 55 F.3d at 306 n.2. The RFC is an issue at steps four and five of the sequential
evaluation process and must be supported by substantial evidence. SSR 96-8p, 1996 WL 374184,
*3 (July 2, 1996); Clifford, 227 F.3d at 870.
“RFC is an assessment of an individual’s ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing basis. A ‘regular and continuing’
basis means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96-8p, 1996
WL 374184, at *1. “The RFC assessment is a function-by-function assessment based upon all of the
relevant evidence of an individual’s ability to do work-related activities.” Id. at *3. The relevant
evidence 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. Id.
at *5. In arriving at an RFC, 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.
Plaintiff argues that the ALJ erred in determining Plaintiff’s RFC. Plaintiff asserts that the
ALJ did not properly assess Plaintiff’s pain allegations and related limitations and, consequently,
the RFC does not adequately address these issues. The Court has already determined that the ALJ
failed to build a logical bridge from the evidence to her conclusions regarding these symptoms.
Because of the errors in the evaluation of Plaintiff’s pain allegations, the RFC is undermined.
Further, the ALJ noted that no physician had prescribed a cane or assistive device. Focus on the lack
of a prescription is improper, as prescriptions are not needed for the use of assistive devices. Parker
v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010); Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009).
Given that Plaintiff testified that he used a crutch, the ALJ should have explained her decision to not
include use of the crutch in the RFC.
Plaintiff also contends that the ALJ’s finding that Plaintiff could perform a reduced range
of light work is not supported by substantial evidence. Specifically, Plaintiff asserts that the medical
opinions that the ALJ relied upon did not examine all of the evidence, that there is no evidence that
Plaintiff can stoop or carry 20 pounds, and that the ALJ selectively relied on treatment notes that
showed improvement without discussing notes that indicated ongoing issues.
On remand, correction of the errors identified earlier in this opinion may lead to a different
RFC. Accordingly, in depth analysis of Plaintiff’s asserted errors in the current RFC is not warranted
here. On remand, the ALJ is directed to submit to medical scrutiny any new and potentially decisive
medical evidence. See Stage v. Colvin, 812 F.3d 1121, 1125 (7th Cir. 2016). Further, in determining
Plaintiff’s RFC—including his abilities to stoop and carry—the ALJ is reminded to consider all of
the evidence, not just evidence that supports her findings. See Denton v. Astrue, 596 F.3d 419, 425
(7th Cir. 2010) (citing Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009)) (“An ALJ has the
obligation to consider all relevant medial evidence and cannot simply cherry-pick facts that support
a finding of non-disability while ignoring evidence that points to a disability finding.”)
For these reasons, the Court GRANTS the relief sought in the Brief in Support of Plaintiff’s
Motion for Summary Judgment [DE 13], REVERSES the final decision of the Commissioner of
Social Security, and REMANDS this matter for further proceedings consistent with this Opinion
SO ORDERED this 15th day of September, 2016.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
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