Torres v. Commissioner of Social Security
Filing
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OPINION AND ORDER: The decision of the Commissioner is REMANDED forfurther proceedings consistent with this order. Signed by Magistrate Judge Andrew P Rodovich on 5/28/2019. (jss)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JOSE TORRES,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
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Case No. 2:17-cv-393
OPINION AND ORDER
This matter is before the court on petition for judicial review of the decision of the
Commissioner filed by the plaintiff, Jose Torres, on October 12, 2017. For the following
reasons, the decision of the Commissioner is REMANDED.
Background
The plaintiff, Jose Torres, filed applications for Disability Insurance Benefits and
Supplemental Security Income on March 10, 2016 and March 17, 2016, respectively, alleging a
disability onset date of June 1, 2015. (Tr. 16). The Disability Determination Bureau denied
Torres’ applications initially on May 13, 2016, and again upon reconsideration on August 23,
2016. (Tr. 16). Torres subsequently filed a timely request for a hearing on September 13, 2016.
(Tr. 16). A video hearing was held on February 21, 2017, before Administrative Law Judge
(ALJ) William E. Sampson, and the ALJ issued an unfavorable decision on March 14, 2017.
(Tr. 16-31). Vocational Expert (VE) Carrie E. Anderson appeared by telephone at the hearing.
(Tr. 16). The Appeals Council denied review, making the ALJ’s decision the final decision of
the Commissioner. (Tr. 1-6).
Torres met the insured status requirements of the Social Security Act through September
30, 2018. (Tr. 18). At step one of the five-step sequential analysis for determining whether an
individual is disabled, the ALJ found that Torres had not engaged in substantial gainful activity
since June 1, 2015, the alleged onset date. (Tr. 18).
At step two, the ALJ determined that Torres had the following severe impairments:
bilateral sensorineural hearing loss (SNHL) with tinnitus and hearing aid use; hypertension
(HTN) status post small vessel ischemic changes and an acute/sub-acute left thalamic infarct;
and bipolar disorder. (Tr. 18). The ALJ found that Torres’ severe impairments, considered
singly and in combination, imposed more than a minimal limitation on his physical and mental
ability to engage in basic work activities. (Tr. 18). The ALJ found that Torres’ fecal
incontinence and/or irritable bowel syndrome were not medically determinable impairments.
(Tr. 19).
At step three, the ALJ concluded that Torres did not have an impairment or combination
of impairments that met or medically equaled the severity of one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1. (Tr. 20). The ALJ indicated that, as for Torres’ bilateral
sensorineural hearing loss, he retained the ability to carry on a conversation at normal levels.
(Tr. 20). Also, as for his hypertension, the ALJ indicated that it was not of such severity as to
meet or medically equal listing 4.00. Finally, the ALJ determined that Torres’ mental
impairments did not meet or medically equal listings 12.04 and 12.06. (Tr. 20).
The ALJ considered the paragraph B criteria for mental impairments, which required at
least one extreme or two marked limitations in a broad area of functioning which include:
understanding, remembering, or applying information; interacting with
others; concentrating, persisting or maintaining pace; and adapting or
managing oneself.
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(Tr. 20). The ALJ indicated that a marked limitation means the ability to function independently,
appropriately, effectively, and on a sustained basis is seriously limited, while an extreme
limitation is the inability to function independently, appropriately, or effectively, and on a
sustained basis. (Tr. 20-21).
The ALJ determined that Torres had mild limitations in understanding, remembering, or
applying information; moderate limitations in interacting with others; moderate limitations in
concentrating, persisting, or maintaining pace; and no limitations in adapting or managing
himself. (Tr. 21). Because Torres’ mental impairments did not cause at least two “marked”
limitations or one “extreme” limitation, the ALJ determined that he did not satisfy the paragraph
B criteria. (Tr. 21). Additionally, the ALJ determined that Torres did not satisfy the paragraph
C criteria. (Tr. 21).
After consideration of the entire record, the ALJ then assessed Torres’ residual functional
capacity (RFC) as follows:
[T]he claimant has the residual functional capacity (RFC) to perform light
work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant
can only occasionally climb ramps and stairs, balance, stoop, kneel, crouch,
and/or crawl. The claimant can never climb ladders, ropes, or scaffolds, and
must avoid concentrated exposure to noise. The claimant is further limited
to simple, routine, and repetitive tasks. The claimant can tolerate brief and
superficial interaction with co-workers and supervisors, but the work cannot
require interaction with the general public.
(Tr. 22). The ALJ explained that in considering Torres’ symptoms he followed a two-step
process. (Tr. 22). First, he determined whether there was an underlying medically determinable
physical or mental impairment that was shown by a medically acceptable clinical or laboratory
diagnostic technique that reasonably could be expected to produce Torres’ pain or other
symptoms. (Tr. 22). Then, he evaluated the intensity, persistence, and limiting effects of the
symptoms to determine the extent to which they limited Torres’ functioning. (Tr. 22).
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The ALJ found that Torres’ medically determinable impairments reasonably could be
expected to cause the alleged symptoms. (Tr. 23). However, the ALJ determined that Torres’
statements concerning the intensity, persistence, and limiting effects of his symptoms were not
entirely consistent with the medical evidence and other evidence in the record. (Tr. 23). The
ALJ indicated that he considered that Torres pursued employment in assessing the weight
afforded to Torres’ subjective claims of ongoing symptom persistence and intensity. (Tr. 23).
Moreover, the ALJ found that the persuasiveness of Torres’ allegations was compromised by
inconsistencies in the evidentiary records and the actual objective clinical findings of the VA
clinicians and the discharging clinicians at St. Catherine’s Hospital. (Tr. 28).
At step four, the ALJ concluded that Torres was unable to perform any past relevant
work. (Tr. 29). Considering Torres’ age, education, work experience, and RFC, the ALJ
determined that there were jobs in the national economy that he could perform, including clerk
(106,000 jobs nationally), sorter (101,000 jobs nationally), and packer (101,000 jobs nationally).
(Tr. 30-31). The ALJ found that Torres had not been under a disability, as defined in the Social
Security Act, from June 1, 2015 through the date of this decision, March 14, 2017. (Tr. 31).
Discussion
The standard for judicial review of an ALJ’s finding that a claimant is not disabled within
the meaning of the Social Security Act is limited to a determination of whether those findings are
supported by substantial evidence. 42 U.S.C. § 405(g) (“The findings of the Commissioner of
Social Security, as to any fact, if supported by substantial evidence, shall be conclusive.”);
Moore v. Colvin, 743 F.3d 1118, 1120–21 (7th Cir. 2014); Bates v. Colvin, 736 F.3d 1093, 1097
(7th Cir. 2013) (“We will uphold the Commissioner’s final decision if the ALJ applied the
correct legal standards and supported her decision with substantial evidence.”). Courts have
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defined substantial evidence as “such relevant evidence as a reasonable mind might accept to
support such a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28
L. Ed. 2d 852 (1972) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206,
217, 83 L. Ed. 2d 140 (1938)); see Bates, 736 F.3d at 1098. A court must affirm an ALJ’s
decision if the ALJ supported his findings with substantial evidence and if there have been no
errors of law. Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citations omitted). However,
“the decision cannot stand if it lacks evidentiary support or an adequate discussion of the issues.”
Lopez ex rel Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).
Disability and supplemental insurance benefits are available only to those individuals
who can establish “disability” under the terms of the Social Security Act. The claimant must
show that he is unable “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A). The Social Security regulations enumerate the five-step sequential
evaluation to be followed when determining whether a claimant has met the burden of
establishing disability. 20 C.F.R. §§ 404.1520, 416.920. The ALJ first considers whether the
claimant is presently employed or “engaged in substantial gainful activity.” 20 C.F.R. §§
404.1520(b), 416.920(b). If he is, the claimant is not disabled and the evaluation process is over.
If he is not, the ALJ next addresses whether the claimant has a severe impairment or combination
of impairments that “significantly limits . . . physical or mental ability to do basic work
activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c); see Williams v. Colvin, 757 F.3d 610, 613
(7th Cir. 2014) (discussing that the ALJ must consider the combined effects of the claimant’s
impairments). Third, the ALJ determines whether that severe impairment meets any of the
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impairments listed in the regulations. 20 C.F.R. § 401, pt. 404, subpt. P, app. 1. If it does, then
the impairment is acknowledged by the Commissioner to be conclusively disabling. However, if
the impairment does not so limit the claimant’s remaining capabilities, the ALJ reviews the
claimant’s “residual functional capacity” and the physical and mental demands of his past work.
If, at this fourth step, the claimant can perform his past relevant work, he will be found not
disabled. 20 C.F.R. §§ 404.1520(e), 416.920(e). However, if the claimant shows that his
impairment is so severe that he is unable to engage in his past relevant work, then the burden of
proof shifts to the Commissioner to establish that the claimant, in light of his age, education, job
experience, and functional capacity to work, is capable of performing other work and that such
work exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1520(f),
416.920(f).
Torres has requested that the court reverse the ALJ’s decision and award benefits, or in
the alternative, remand this matter for additional proceedings. In his appeal, Torres has argued
that: (1) the ALJ’s residual functional capacity (RFC) assessment was not supported by
substantial evidence; and (2) the ALJ’s evaluation of his subjective symptoms was legally
insufficient and not supported by substantial evidence.
Torres has argued that the ALJ’s RFC assessment was not supported by substantial
evidence. “The RFC is an assessment of what work-related activities the claimant can perform
despite his limitations.” Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); see 20 C.F.R.
§ 404.1545(a)(1) (“Your residual functional capacity is the most you can still do despite your
limitations.”); SSR 96-8p, 1996 WL 374184, *2 (July 2, 1996) (“RFC is an administrative
assessment of the extent to which an individual’s medically determinable impairment(s),
including any related symptoms, such as pain, may cause physical or mental limitations or
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restrictions that may affect his or her capacity to do work-related physical and mental
activities.”). The RFC is based upon medical evidence—including statements from medical
sources about what the claimant can still do—as well as “other evidence, such as testimony by
the claimant or his friends and family.” Craft v. Astrue, 539 F.3d 668, 676 (7th Cir. 2008); 20
C.F.R. § 404.1545(a)(3).
SSR 96-8p explains how an ALJ should assess a claimant’s RFC at steps four and five of
the sequential evaluation. In a section entitled, “Narrative Discussion Requirements,” SSR 968p specifically spells out what is needed in the ALJ’s RFC analysis. This section of the Ruling
provides:
The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g.,
laboratory findings) and nonmedical evidence (e.g., daily activities,
observations). In assessing RFC, the adjudicator must discuss the
individual’s ability to perform sustained work activities in an ordinary work
setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a
week, or an equivalent work schedule), and describe the maximum amount
of each work-related activity the individual can perform based on the
evidence available in the case record. The adjudicator must also explain how
any material inconsistencies or ambiguities in the evidence in the case record
were considered and resolved.
SSR 96-8p (footnote omitted). Thus, as explained in this section of the Ruling, there is a
difference between what the ALJ must contemplate and what he must articulate in his written
decision. “The ALJ is not required to address every piece of evidence or testimony presented,
but he must provide a ‘logical bridge’ between the evidence and his conclusions.” Getch v.
Astrue, 539 F.3d 473, 480 (7th Cir. 2008) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir.
2000)); see Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014). Although the ALJ does not
need to discuss every piece of evidence, he cannot ignore evidence that undermines his ultimate
conclusions. Moore, 743 F.3d at 1123 (“The ALJ must confront the evidence that does not
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support his conclusion and explain why that evidence was rejected.”) (citing Terry v. Astrue, 580
F.3d 471, 477 (7th Cir. 2009); Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009); Arnett v.
Astrue, 676 F.3d 586, 592 (7th Cir. 2012)). “A decision that lacks adequate discussion of the
issues will be remanded.” Moore, 743 F.3d at 1121.
The ALJ limited Torres to simple, routine, and repetitive tasks with brief and superficial
interaction with co-workers and supervisors, but no interaction with the general public. (Tr. 22).
Torres contends that it is not clear how the ALJ determined the RFC or what evidence he relied
on in assessing the RFC. The Commissioner has argued that the ALJ’s findings were supported
by the opinions of examining psychologists, Drs. Gopal and Singh, and State agency
psychologists, Drs. Lovko and Kennedy.
The Commissioner indicated that Drs. Lovko and Kennedy opined that Torres could do
“unskilled tasks in a setting not requiring significant interaction,” “relate on a superficial basis on
an ongoing basis with co-workers and supervisors,” and “manage the stresses involved with
work.” (Tr. 73). However, the ALJ did not provide any discussion of these opinions in his
decision. The ALJ simply stated that, “[t]he assessed residual functional capacity is supported
by the objective findings, the State agency consultants’ opinions, and other factors discussed
above.” (Tr. 29). Without an explanation or a discussion of the opinions, the court is unable to
ascertain what evidence supported the ALJ’s RFC determination. Thus, the ALJ has failed to
build a logical bridge from the evidence to his RFC finding.
Moreover, the ALJ did not evaluate the medical opinions pursuant to 20 C.F.R. §
404.1527. Although the ALJ functionally adopted the opinions of Drs. Lovko and Kennedy in
forming Torres’ mental RFC, the ALJ did not indicate that in his decision. The ALJ failed to
expressly evaluate their opinions, consider the checklist factors, and assign weight to the
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opinions. ALJs must evaluate all medical opinions. 20 C.F.R. § 404.1527(c) (“Regardless of its
source, we will evaluate every medical opinion we receive.”).
The ALJ found at step three that Torres had moderate limitations in concentrating,
persisting, or maintaining pace. (Tr. 20). Torres reported that he had limitations in
concentration, focusing, following instructions, completing tasks, avoiding distractions, and
maintaining a regular work schedule. (Tr. 20). However, the ALJ noted that Torres could drive,
prepare meals, watch television, handle his medical care, and care for his autistic son. (Tr. 21).
The ALJ indicated because of the moderate limitations assessed appropriate limitations to
unskilled work were included in the RFC. (Tr. 21). Yet, the ALJ did not point to any evidence
that limiting him to simple, routine, and repetitive tasks would adequately capture his limitations
in concentration, persistence, or pace. Rather, the ALJ provided a summary of the medical
evidence.
The ALJ has addressed only the difficulty of the tasks themselves, rather than the ability
of Torres to perform them with the consistency, persistence, and pace demanded in a work
environment. See Eckhart v. Berryhill, 2018 WL 4178695, at *4 (N.D. Ind. 2018). “The ability
to stick with a given task over a sustained period” is simply “not the same as the ability to learn
how to do tasks of a given complexity.” O’Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th
Cir. 2010)). The ALJ did not tie the limitation to simple, routine, and repetitive tasks to evidence
in the record or to a medical opinion. Therefore, the ALJ did not provide enough analysis for the
court to provide meaningful review of the appropriateness of the ALJ’s RFC assessment.
Next, Torres has argued that the ALJ’s evaluation of his subjective symptoms was legally
insufficient. An ALJ’s evaluation of subjective symptoms will be upheld unless it is patently
wrong. Shideler v. Astrue, 688 F.3d 306, 310-11 (7th Cir. 2012). Nevertheless, an ALJ must
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explain his evaluation with specific reasons that are supported by the record. Pepper v. Colvin,
712 F.3d 351, 367 (7th Cir. 2013). An ALJ must assess the claimant’s subjective symptoms
rather than assessing his “credibility.”
Under SSR 16-3, the ALJ first must determine whether the claimant has a medically
determinable impairment that reasonably could be expected to produce his symptoms. SSR 163p, 2016 WL 1119029, at *2. Then, the ALJ must evaluate the “intensity, persistence, and
functionally limiting effects of the individual's symptoms to determine the extent to which the
symptoms affect the individual's ability to do basic work activities.” SSR 16-3p, 2016 WL
1119029, at *2. An individual's statements about the intensity and persistence of the pain may
not be disregarded because they are not substantiated by objective medical evidence. SSR 16-3p,
2016 WL 1119029 at *5. In determining the ability of the claimant to perform work-related
activities, the ALJ must consider the entire case record, and the decision must contain specific
reasons for the finding. SSR 16-3p, 2016 WL 1119029, at *4, 9. The ALJ must weigh the
claimant’s subjective complaints, the relevant objective medical evidence, and any other
evidence of the following factors:
(i) The individual’s daily activities;
(ii) Location, duration, frequency, and intensity of pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) Type, dosage, effectiveness, and side effects of any medication;
(v) Treatment, other than medication, for relief of pain or other symptoms;
(vi) Other measures taken to relieve pain or other symptoms;
(vii) Other factors concerning functional limitations due to pain or other symptoms.
See 20 C.F.R. § 404.1529(c)(3).
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The ALJ discounted Torres’ statements concerning the intensity, persistence, and limiting
effects of his symptoms because they were not entirely consistent with the medical evidence and
other evidence in the record. (Tr. 23). Torres has argued that “not entirely consistent” is not the
legal standard; rather, the ALJ must base the decision on the preponderance of the evidence
offered at the hearing or otherwise included in the record. (citing 20 C.F.R. § 404.901; 20
C.F.R. § 404.953(a)). However, under SSR 16-3p, the ALJ must “evaluate whether the
statements are consistent with objective medical evidence and the other evidence.” SSR 16-3p,
2016 WL 1119029, at *8; see also 20 C.F.R. §§ 404.1529(a), 416.929(a). Therefore, the use of
the boilerplate phrase “not entirely consistent” is not, alone, a basis for remand. See Robert v.
Berryhill, 2018 WL 4565385, at *7-8 (C.D. Ill. Sept. 24, 2018); see also Parker v. Astrue, 597
F.3d 920 (7th Cir. 2010).
The ALJ summarized the medical evidence citing inconsistencies in Torres’ allegations
and the objective medical evidence. Specifically, the ALJ indicated that the medical findings
were not consistent with the claims of daily cognitive limitations, suicidal/homicidal ideations, or
severe social deficits. (Tr. 24). Thus, the ALJ concluded that Torres’ allegations of symptoms
were not consistent with the objective medical evidence.
The ALJ acknowledged some specific inconsistencies in the record. Torres alleged that
his impairments precipitated his exit from work. However, he repeatedly had reported that he
stopped working after being laid off. At the hearing, Torres testified that he was fired from his
most recent employment because he was working on an assembly line and every time he had to
use the restroom the line would stop. (Tr. 41-42). However, the ALJ in his decision did not
indicate that he considered that testimony. The ALJ also noted that Torres continued to seek
employment when assessing the weight afforded to his subjective claims of ongoing symptom
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persistence and intensity. The Commissioner contends that Torres’ belief that he could work
was inconsistent with his apparent belief that he was disabled.
However, a claimant's desire to work is not inconsistent with his inability to work
because of a disability. See Voigt v. Colvin, 781 F.3d 871, 876 (7th Cir. 2015) (claimant's desire
to work, but inability to find work, is “consistent with his wanting to lead a normal life yet being
unable to land a job because he's disabled from gainful employment”); Jones v. Shalala, 21 F.3d
191, 192 (7th Cir. 1994) (explaining that claimant might be earning a decent wage despite being
permanently disabled). The ALJ chose to acknowledge that Torres had reported that he had
financial issues. Yet, he discounted Torres’ symptoms because he continued to seek
employment. Thus, the ALJ failed to consider Torres’ financial issues as a reason for seeking
employment.
The ALJ rejected Torres’ claim of disabling fecal incontinence because it was not
substantiated, and it lacked treatment or a valid diagnosis. Torres asserts that he sought
treatment and that he was diagnosed with fecal urgency and incontinence. However, as indicated
by the Commissioner, no medical explanation was provided. The ALJ indicated that Torres’
treatment was not interrupted by his incontinent or urgency issues. Also, the ALJ noted that
Torres went to the movies and the American Legion regularly and that there were no reports in
inpatient treatment programs where he exhibited abnormal behavior equating to bowl
dysfunction. Torres contends that the ALJ relied on speculation.
In determining that Torres’ fecal incontinence was not a medically determinable
impairment the ALJ concluded that inconsistencies detracted from the persuasiveness of the
alleged symptom persistence and intensity. (Tr. 19). Specifically, the ALJ compared Torres’
alleged frequency when he required restroom access with the absence of any clinician ever
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noting incontinent/fecal issues while being examined or while in an inpatient care. (Tr. 19). The
ALJ found it illogical that Torres’ bowel movements occurred every 15 minutes as testified to,
and that no clinical professional recorded such behavior. (Tr. 19). However, Torres testified that
he went to the restroom approximately 6 times a day, for about 15 minutes, not every 15 minutes
which would interrupt his appointments. (Tr. 42, 44). Thus, the ALJ misinterpreted Torres’
testimony.
Even though the ALJ rejected Torres’ claim of disabling fecal incontinence, the ALJ
asked the VE about whether an individual who required 4 additional bathroom breaks, lasting
about 15 minutes each, in addition to regular breaks would preclude employment. (Tr. 60-61).
The VE indicated that individual would be precluded from work. Yet, the ALJ did not explain
why he questioned the VE about bathroom breaks if he did not credit Torres’ subjective
complaints. Accordingly, the ALJ failed to provide any analysis about such consideration.
See Kukec v. Berryhill, 2017 WL 5191872, at *4 (N.D. Ill. 2017) (“the Court endeavored to
follow the ALJ's analysis, but the entire off-task bridge and conclusion have disappeared after
the ALJ's hypothetical to the VE.”).
Torres has presented numerous arguments relating to the sufficiency of the ALJ’s
subjective symptom evaluation. However, many of the arguments amount to the court
reweighing the evidence, which it declines to do. The court is not finding that the ALJ’s
subjective symptom evaluation was patently wrong. However, since this matter is being
remanded because the RFC assessment was not supported by substantial evidence, the ALJ may
reconsider Torres’ subjective symptoms.
Torres has requested that the court remand for an award of benefits. An award of
benefits is appropriate “only if all factual issues involved in the entitlement determination have
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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 (7th Cir. 2011). The Seventh
Circuit has held that when an ALJ’s decision is not supported by substantial evidence, the
appropriate remedy is to remand for further proceedings unless the evidence before the court
compels an award of benefits. Briscoe v. Barnhart, 425 F.3d 345, 355 (7th Cir. 2005). The
record here does not warrant an award of benefits.
Based on the foregoing reasons, the decision of the Commissioner is REMANDED for
further proceedings consistent with this order.
ENTERED this 28th day of May, 2019.
/s/ Andrew P. Rodovich
United States Magistrate Judge
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