Hearn v. Commissioner of Social Security

Filing 23

OPINION AND ORDER: The Court hereby GRANTS the relief sought in Plaintiff's Opening Brief 16 , REVERSES the final decision of the Commissioner of Social Security, and REMANDS this matter for further proceedings consistent with this Opinion and Order. The Court DENIES Plaintiff's request to award benefits. Signed by Magistrate Judge Paul R Cherry on 9/14/2017. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
RANDALL ALLAN HEARN,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.

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CAUSE NO.: 2:16-CV-312-PRC

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Randall Allan Hearn
on July 5, 2016, and Plaintiff’s Opening Brief [DE 16], filed by Plaintiff on December 9, 2016.
Plaintiff requests that the September 26, 2014 decision of the Administrative Law Judge denying
his claim for disability insurance benefits and supplemental security income be reversed and
remanded for further proceedings. On March 23, 2017, the Commissioner filed a response, and
Plaintiff filed a reply on April 5, 2017. For the following reasons, the Court grants Plaintiff’s request
for remand.
PROCEDURAL BACKGROUND
In January 2013, Plaintiff filed applications for disability insurance benefits and
supplemental security income, alleging disability since June 23, 2012. The applications were denied
initially and on reconsideration. On June 18, 2014, Administrative Law Judge Kim L. Bright
(“ALJ”) held a hearing. In attendance at the hearing were Plaintiff and Plaintiff’s attorney. An
impartial vocational expert appeared telephonically. The vocational expert was disconnected from
the hearing before he testified. Interrogatories were sent to the expert following the hearing. On

September 26, 2014, the ALJ issued a written decision denying benefits, making the following
findings:
1.
The claimant meets the insured status requirements of the Social Security Act
through December 31, 2017.
2.
The claimant has not engaged in substantial gainful activity since June 23,
2012, the alleged onset date.
3.
The claimant has the following severe impairments: cervical degenerative
disc disease and degenerative joint disease of the right shoulder.
4.
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.
5.
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 404.1567(b) and 416.967(b) Except he may frequently climb ramps and stairs,
balance, stop, crouch, or crawl. He may occasionally climb ladders, ropes, or
scaffolds. He may frequently reach in front or laterally, and occasionally reach
overhead with his bilateral upper extremities.
6.

The claimant is unable to perform any past relevant work.

7.
The claimant was born [in 1962] and was 50 years old, which is defined as
an individual closely approaching advanced age, on the alleged disability onset date.
8.

The claimant has a limited education and is able to communicate in English.

9.
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.
10.
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.
11.
The claimant has not been under a disability, as defined in the Social Security
Act, from June 23, 2012, through the date of this decision.
(AR 17-25).

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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. Plaintiff filed this civil
action pursuant to 42 U.S.C. § 405(g) 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.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42
U.S.C. § 405(g).
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

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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 [the] 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.”).
DISABILITY STANDARD
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

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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 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. §§ 423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. §§ 404.1520(e)-(f),
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. §§ 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 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. §§ 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 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

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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).
ANALYSIS
Plaintiff seeks remand, arguing that the ALJ erred (1) in evaluating Plaintiff’s subjective
complaints and (2) in determining Plaintiff’s RFC. The Court considers each argument in turn.
A. Subjective Complaints
On March 28, 2016, Social Security Ruling 16-3p became effective and issued new guidance
regarding the evaluation of a disability claimant’s statements about the intensity, persistence, and
limiting effects of symptoms. See SSR 16-3p, 2016 WL 1237954 (Mar. 28, 2016). Under SSR 16-3p,
an ALJ now assesses a claimant’s subjective symptoms rather than assessing his “credibility.”
However, SSR 16-3p is not retroactive; therefore, the “credibility determination” in the ALJ’s
decision is governed by the standard of SSR 96-7p.
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. §§ 404.1529(a), 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:
(1)
(2)
(3)
(4)
(5)
(6)

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;
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(7)

Other factors concerning functional limitations due to pain or other
symptoms.

See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). “Because the ALJ is in the best position to
determine a witness’s truthfulness and forthrightness . . . a 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) (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 Cir. 2009)); SSR 96-7p,
1996 WL 374186, at *2 (Jul. 2, 1996) (“The determination or decision must contain specific reasons
for the finding on credibility, supported by the evidence in the case record, and must be sufficiently
specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator
gave to the individual’s statements and the reasons for that weight.”).
1.

Cervical Radiculopathy
Plaintiff argues that the ALJ erred in determining Plaintiff’s subjective symptoms by making

a factual error regarding Plaintiff’s diagnosis of cervical radiculopathy. “A reversal and remand may
be required . . . if the ALJ based the decision on serious factual mistakes or omissions.” Beardsley
v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014) (citing Sarchet v. Chater, 78 F.3d 305, 309 (7th
Cir.1996)).
The ALJ stated in her decision that “At a follow up in April 2014, Dr. Dalvi’s impression
was no cervical radiculopathy and small vessel ischemic disease on the MRI of the brain.” (AR 23).
However, the evidence—which the ALJ cited in support of her statement—contradicts this

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statement. The record for the April 13, 2014 follow up lists impressions of “cervical radiculopathy”
and “small vessel ischemic disease on MRI brain.” (AR 338).
In finding Plaintiff’s allegations not fully supported, the ALJ wrote that “the claimant’s
examinations, discussed above, have shown some positive clinical findings, however, there are also
times when he had full range of motion of his cervical spine.” (AR 23). The factual error identified
above is a part of the ALJ’s discussion of the examinations that the ALJ relied upon in determining
Plaintiff’s subjective symptoms.
Notably, the Commissioner does not respond to Plaintiff’s argument that remand is required
on this basis and has therefore waived argument on the issue. See Bonte v. U.S. Bank, N.A., 624 F.3d
461, 466 (7th Cir. 2010) (“Failure to respond to an argument . . . results in waiver.”) (citing U.S. v.
Farris, 532 F.3d 615, 619 (7th Cir. 2008); Williams v. REP Corp., 302 F.3d 660, 667 (7th Cir.
2002)).
Plaintiff asserts that the ALJ based her evaluation of Plaintiff’s subjective symptoms in part
on a factual error regarding Plaintiff’s cervical radiculopathy. The Commissioner presents no
argument that there was no error or that the ALJ’s evaluation was not based on this error. The
administrative record supports Plaintiff’s position. The ALJ made a serious error of fact and relied
on that error in her evaluation of Plaintiff’s subjective symptoms. The Commissioner does not argue
that this error is harmless, and the Court does not find that it is. There is no indication that the ALJ
would have made the same decision in the absence of the error, nor would a contrary determination
need to be set aside as incredible. Allord v. Barnhart, 455 F.3d 818, 821 (7th Cir. 2006). Remand
is required.

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2.

Daily Activities
Plaintiff next argues that the ALJ failed to consider Plaintiff’s daily activities as required by

the regulations. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). The Commissioner responds that
the new Social Security Ruling, 16-3p, clarifies the Social Security Administration’s existing policy
by explicitly stating that an ALJ is not required to discuss all of the regulatory factors that she
considers, unless she finds them pertinent to the case. The Commissioner directs the Court to one
page of the Federal Register’s publication of Social Security Ruling 16-3p, but the Court is unable
to find a statement on that page that fully supports the Commissioner’s broad assertion. Instead, the
Court has found this statement:
We will consider other evidence to evaluate only the factors that are relevant to
assessing the intensity, persistence, and limiting effects of the individual's symptoms.
If there is no information in the evidence of record regarding one of the factors, we
will not discuss that specific factor in the determination or decision because it is not
relevant to the case. We will discuss the factors pertinent to the evidence of record.
SSR 16-3p, 2016 WL 1119029, at *7 (Mar. 16, 2016). The Ruling does not allow an ALJ to ignore
a line of evidence regarding one of the regulatory factors if the ALJ does not find it pertinent.
Instead, the Ruling indicates that regulatory factors for which there is no evidence will not be
discussed.
There is evidence in the record regarding Plaintiff’s daily activities; Plaintiff testified as to
them at the administrative hearing. Plaintiff’s testimony was that he does not clean the house,
maintain the yard, or do his laundry. (AR 48). If he does any sort of housework, after five or ten
minutes he is in pain and lays down. Id. He does not shop for groceries because he cannot complete
a shopping trip without pain. Id. at 45. He sleeps a lot during the day because his sleep is broken
during the night. Id. at 44-45. The regulations require an ALJ to consider Plaintiff’s activities, 20

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C.F.R. §§ 404.1529(c)(3), 416.929(c)(3), and the ALJ failed to do so. Because remand is necessary
on other grounds and because the new Social Security Ruling will apply on remand, the Court need
not determine whether the ALJ’s failure to consider Plaintiff’s daily activities requires remand.
B. Residual Functional Capacity
The Residual Functional Capacity (“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. §§ 404.1545(a), 416.945(a). The determination of a claimant’s RFC is a legal decision
rather than a medical one. 20 C.F.R. §§ 404.1527(e)(1), 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 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.” SSR 96-8p, 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. The “ALJ must also consider the combined effects of all the claimant’s

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impairments, even those that would not be considered severe in isolation.” Terry, 580 F.3d at 477;
see also Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003).
1.

Weight to Treating Physician’s Opinion
In determining whether a claimant is disabled, the ALJ “will always consider the medical

opinions in [the] case record together with the rest of the relevant evidence . . . received.” 20 C.F.R.
§§ 404.1527(b), 416.927(b). The ALJ evaluates every medical opinion received. 20 C.F.R. §§
404.1527(c), 416.927(c). This includes the opinions of nonexamining sources such as state agency
medical and psychological consultants as well as outside medical experts consulted by the ALJ. Id.
§§ 404.1527(e)(2), 416.927(e)(2).
An ALJ must give the opinion of a treating doctor controlling weight if (1) the opinion is
supported by “medically acceptable clinical and laboratory diagnostic techniques” and (2) it is “not
inconsistent” with substantial evidence of record. Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir.
2010); see also Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011). In weighing all opinion
evidence, the ALJ considers several factors and “must explain in the decision the weight given” to
each opinion. 20 C.F.R. §§ 404.1527(e)(2)(ii), (iii), 416.927(e)(2)(ii), (iii). Scrogham v. Colvin, 765
F.3d 685, 697-98 (7th Cir. 2014); Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008). When a
treating physician’s opinion is not given controlling weight, the ALJ must nevertheless consider
certain factors to determine how much weight to give the opinion, including the length of the
treatment relationship and the frequency of examination, the nature and extent of the treatment
relationship, supportability (such as medical signs and laboratory findings), and specialization. See
20 C.F.R. §§ 404.1527(c)(2)-(5), 416.927(c)(2).

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Plaintiff argues that the ALJ erred in assigning weight to Dr. Harris, Plaintiff’s treating pain
management doctor. As a treating physician, Dr. Harris’s opinion should be given controlling weight
unless the opinion is not supported by medically acceptable clinical and laboratory diagnostic
techniques or is inconsistent with substantial evidence of record. In assigning weight to Dr. Harris,
the ALJ wrote “[t]his opinion is assigned little weight as Dr. Harris’ limitations are not supported
by her treatment of the claimant, or the overall record. Her opinion as to the need for claimant’s
breaks is extreme and is not supported by the objective evidence.” (AR 24). The ALJ provided no
further explanation or citation to evidence in the record.
Due to the lack of citation to the record or explanation of the ALJ’s reasoning, the Court
cannot determine what part of the record the ALJ relied on in assigning weight to Dr. Harris’s
opinion or what part of Dr. Harris’s treatment of Plaintiff the ALJ deemed to not support Dr.
Harris’s opinion. Also, the ALJ does not mention any inconsistent evidence, which is the
requirement in the regulation. A lack of supporting evidence—objective or otherwise—is not a
sufficient reason under the regulations to deny a treating physician’s opinion controlling weight.
Further, Plaintiff’s testimony of his daily activities, which the ALJ did not discuss, supports and is
consistent with Dr. Harris’s opinion regarding Plaintiff’s need for breaks. The ALJ erred in failing
to adequately explain her decision to not assign controlling weight to Dr. Harris’s opinion. This
requires remand.
2.

Medical Support for the RFC
Plaintiff’s final argument is that no medical opinion supports the ALJ’s RFC determination.

Though the RFC is a determination for the ALJ to make, “an ALJ must not substitute [her] own

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judgment for a physician’s opinion without relying on other medical evidence or authority in the
record.” Clifford, 227 F.3d at 870(citing Rohan v. Chater, 98 F.3d 966, 968 (7th Cir. 1996)).
In addition to assigning only little weight to Dr. Harris’s opinion, the ALJ assigned little
weight to the opinions of the state agency medical consultants, who determined that Plaintiff can
perform medium work with some additional limitations. The ALJ wrote that she gave the opinions
“little weight as the record best supports a finding that the claimant can perform a range of light
work. Further, given his complaints as to both of his shoulders, the undersigned finds that the
claimant is limited in his bilateral upper extremities, not just his right.” (AR 24). The ALJ provided
no further discussion or citation to evidence. At the end of the section on the RFC finding, the ALJ
concludes, “In sum, the above residual functional capacity assessment is supported by the medical
findings, nature of treatment, and other factors discussed above.” Id.
The ALJ has not indicated what part of the record supports her decision that Plaintiff can
perform a limited range of light work. The Court cannot trace her reasoning. Though the RFC is a
legal determination for the ALJ to make, it must be supported by substantial evidence, and the ALJ
has failed to identify the evidence supporting her decision to find that Plaintiff is capable of
performing a limited range of light work.
C. Request for Award of Benefits
Plaintiff asks the Court to reverse and remand for an award of benefits or, in the alternative,
for additional proceedings. An award of benefits is appropriate “only if all factual issues involved
in the entitlement determination have been resolved and the resulting record supports only one
conclusion—that the applicant qualifies for disability benefits.” Allord v. Astrue, 631 F.3d 411, 415

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(7th Cir. 2011). Based on the discussion above, remand, not an immediate award of benefits, is
required for the ALJ to properly consider Plaintiff’s RFC.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS the relief sought in Plaintiff’s Opening
Brief [DE 16], REVERSES the final decision of the Commissioner of Social Security, and
REMANDS this matter for further proceedings consistent with this Opinion and Order. The Court
DENIES Plaintiff’s request to award benefits.
So ORDERED this 14th day of September, 2017.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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