Reed v. Commissioner of Social Security

Filing 20

OPINION AND ORDER GRANTING 15 Plaintiff's Brief in Support of Reversing the Decision of the Commissioner of Social Security by Randall S. Reed and REVERSING and REMANDING this matter for further proceedings consistent with this Opinion and Order. The Court DIRECTS the Clerk of Court to ENTER JUDGMENT in favor of Plaintiff and against Defendant. Signed by Magistrate Judge Joshua P Kolar on 3/30/2021. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
RANDALL S. REED,
Plaintiff,
v.
ANDREW SAUL, Commissioner of
Social Security Administration,
Defendant.

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CAUSE NO.: 2:20-CV-17-JPK

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Randall S. Reed,
and Plaintiff’s Brief in Support of Reversing the Decision of the Commissioner of Social Security
[DE 15]. Plaintiff requests that the September 17, 2018 decision of the Administrative Law Judge
denying his claim for disability insurance benefits and supplemental security income be reversed
and remanded for an award of benefits or, in the alternative, for a new hearing. The Commissioner
filed a response, and Plaintiff filed a reply. For the following reasons, the Court remands this matter
for further administrative proceedings.
PROCEDURAL BACKGROUND
On December 3, 2012, Plaintiff filed an application for disability insurance benefits and
supplemental security income, alleging disability as of June 1, 2008. The applications were denied
initially and on reconsideration. Plaintiff requested a hearing, which was held before an
Administrative Law Judge (ALJ) on December 10, 2014. On February 25, 2015, the ALJ issued
an unfavorable decision, finding that Plaintiff had not been under a disability from June 1, 2008,
through February 25, 2015. 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 then filed a civil action pursuant to 42 U.S.C. § 405(g) for review of the Agency’s

decision. See 42 U.S.C. §§ 405(g), 1383(c)(3). On March 15, 2018, Magistrate Judge John E.
Martin of the Northern District of Indiana issued an order reversing the February 25, 2015 decision
of the ALJ and remanding for further proceedings. The case was assigned to a new ALJ, who held
a hearing on August 30, 2018. On September 17, 2018, the ALJ issued an unfavorable decision,
making the following findings: 1
1.
The claimant meets the insured status requirements of the Social Security
Act through March 31, 2012.
2.
The claimant has not engaged in substantial gainful activity since June 1,
2008, the alleged onset date.
3.
The claimant has the following severe impairments: degenerative disk
disease of the spine, degenerative joint disease of the left shoulder, residuals from
ankle fractures, osteoarthritis, depression, and anxiety.
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 [ALJ found] that the
claimant has the residual functional capacity to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b) where the claimant can lift and/or carry
20 pounds occasionally, and 10 pounds frequently, can sit up to six hours of an
eight-hour workday, and can stand and/or walk up to six hours of an eight-hour
workday. The claimant can occasionally reach overhead with the non-dominant left
upper extremity, and frequently reach in all other directions with the non-dominant
left upper extremity. He can frequently handle and finger with the dominant right
hand. He can occasionally operate foot controls with both feet. He can occasionally
climb ramps and stairs, as well as occasionally balance, stoop, kneel, and crouch.
He can never climb ladders, ropes, or scaffolds, never crawl, and never work in
extreme cold. The claimant must avoid work at unprotected heights, around
dangerous machinery with moving mechanical parts, and never operate a motor
vehicle as part of his work-related duties. He must occasionally use a medically
necessary cane while walking. Every 30 minutes, he must be allowed to shift
positions or alternate between sitting or standing for one to two minutes at a time
while remaining on task. He is limited to simple, routine tasks and simple
work-related decisions.
6.

The claimant is unable to perform any past relevant work.

These are direct quotes of each of the ALJ’s bolded findings made at various points throughout the decision. Internal
citations to the Code of Federal Regulations are omitted.

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7.
The claimant was born [in 1968] and was 39 years old, which is defined as
a younger individual age 18-49, on the alleged disability onset date.
8.
The claimant has at least a high school 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 1, 2008, through the date of this decision.
(AR 502-12 2).
The Appeals Council declined to assume jurisdiction, 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 Agency’s final decision.
42 U.S.C. § 405(g). The question before the Court is not whether the claimant is in fact disabled,
but whether the ALJ’s decision “applies the correct legal standard and is supported by substantial
evidence.” Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017); 42 U.S.C. § 405(g). Under

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Page numbers in the Administrative Record (AR) refer to the page numbers assigned by the filer, which is found on
the lower right corner of the page, and not the page number assigned by the Court’s CM/ECF system.

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§ 405(g), the Court must accept the Commissioner’s factual findings as conclusive if they are
supported by substantial evidence, which is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Moore v. Colvin, 743 F.3d 1118, 1120-21 (7th Cir.
2014) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
The Court reviews the entire administrative record but does not re-weigh the evidence,
resolve conflicts in evidence, or substitute its judgment for that of the ALJ. See McKinzey v. Astrue,
641 F.3d 884, 890 (7th Cir. 2011) (citing Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th
Cir. 2003)). However, “if 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 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). The ALJ also has a
basic obligation to develop a full and fair record and “must build an accurate and logical bridge
between the evidence and the result to afford the claimant meaningful judicial review of the
administrative findings.” Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014).
DISABILITY STANDARD
To be eligible for disability benefits, a claimant must establish that he suffers from a
“disability,” which is defined 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). The ALJ follows a five-step inquiry to determine
whether a claimant is disabled: (1) whether the claimant has engaged in substantial gainful activity

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since the alleged onset of disability, (2) whether the claimant has a medically determinable
impairment or combination of impairments that is severe, (3) whether the claimant’s impairment
or combination of impairments meets or medically equals the criteria of any presumptively
disabling impairment listed in the regulations, (4) if the claimant does not meet a listing, whether
he is unable to perform his past relevant work, and (5) if the claimant is unable to perform past
relevant work, whether he is unable to perform any work in the national economy. See 20 C.F.R.
§§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
Prior to step four, the ALJ determines the claimant’s residual functional capacity (RFC),
which “is an administrative assessment of what work-related activities an individual can perform
despite her limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001). An affirmative
answer at either step three or step five leads to a finding of disability. Briscoe ex rel. Taylor v.
Barnhart, 524 F.3d 345, 352 (7th Cir. 2005); 20 C.F.R. § 404.1520(a)(4). The claimant bears the
burden of proving steps one through four, whereas the burden at step five is on the ALJ.
Zurawski v. Halter, 245 F.3d 881, 885-86 (7th Cir. 2001).
ANALYSIS
Plaintiff asserts three grounds for reversal of the ALJ’s decision. He contends that (1) the
ALJ erred in rejecting the opinion of a consultative examining physician, (2) the ALJ’s assessment
of Plaintiff’s subjective symptom testimony is not supported by substantial evidence, and (3) the
ALJ erred in arriving at the RFC determination.
A. Opinion of Examining Physician
Plaintiff argues that the ALJ erred in rejecting the opinion of Dr. Adela Perez, a
consultative examining physician. (Pl.’s Br. 14-16, ECF No. 15).

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An ALJ has an obligation to evaluate every medical opinion and explain the weight given
to the opinion. See 20 C.F.R. §§ 404.1527(c), 416.927(c). Unless a treating source’s medical
opinion is given controlling weight, 3 an ALJ weighs each medical opinion based on the following
factors: (1) whether there is an examining relationship; (2) whether there is a treatment
relationship, and if so the length of the treatment relationship, the frequency of the examination,
and the nature and extent of the treatment relationship; (3) whether the opinion is supported by
relevant evidence and by explanations from the source; (4) the consistency of the opinion with the
record as a whole; (5) whether the opinion was offered by a specialist about a medical issue related
to his or her area of specialty; and (6) any other factors that tend to support or contradict the
opinion. 20 C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6).
The ALJ assigned little weight to Dr. Perez’s opinion because he found that it was both
internally inconsistent and inconsistent with later evaluations conducted by treating physicians.
(AR 507, 510). Dr. Perez completed a Medical Source Statement in which she opined, inter alia,
that Plaintiff could occasionally lift and carry up to 20 pounds; could occasionally climb ramps
and stairs, balance, and stoop; could sit, stand, and walk for up to fifteen minutes both at a time
and total for an eight-hour workday; and would sometimes need to use a cane. (AR 479-80, 482).
Dr. Perez further opined that Plaintiff was limited to frequent handling, fingering, and feeling,
occasionally reaching and pushing/pulling, and never reaching overhead with his right dominant
hand. (AR 481). She assigned no limitations to Plaintiff’s nondominant left hand. (AR 481).
Dr. Perez additionally opined that Plaintiff had pain in both shoulders, tenderness in the left wrist,
limited dorsiflexion and plantar flexion in the left ankle, and that he either had difficulty

Although SSR 96-2p was rescinded effective March 27, 2017, the new regulations only apply to claims filed on or
after the January 18, 2017 effective date of the new regulations. See 20 C.F.R. §§ 404.1520c(a), 416.920c(a). The
claims in this case were filed in 2012.

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performing or was unable to perform certain activities such as tandem walking, standing on his
heels or toes, and squatting. (AR 487).
The ALJ noted several purported internal inconsistencies in Dr. Perez’s opinion. First, the
ALJ found the statement that Plaintiff sometimes needed to use a cane contradicted the finding
that Plaintiff did not require any assistive device. (AR 507 (citing AR 480, 487)). Second, the ALJ
found the statement that Plaintiff could sit for only fifteen minutes of an eight-hour workday to be
inconsistent with the statement that Plaintiff could operate a motor vehicle “for up to one third of
the eight-hour workday.” (AR 507 (citing AR 480, 483)). The ALJ reasoned that, because driving
a car requires the driver to be seated, Plaintiff would be able to sit for at least one-third of a
workday. (AR 507). Third, the ALJ found the statement that Plaintiff could stand for only fifteen
minutes to be inconsistent with the statement that Plaintiff could lift and carry 20 pounds as well
as climb ramps and stairs for one-third of an eight-hour workday, as these acts require an individual
to stand and walk. (AR 507 (citing AR 479-80, 482)). As such, the ALJ found that Plaintiff would
be able to stand and/or walk up to one-third of the workday. (AR 507). Finally, the ALJ found that
subsequent physical examinations did not corroborate Dr. Perez’s findings, specifically noting that
one treating physician found that Plaintiff had 5/5 strength in all four extremities, including but
not limited to plantar and dorsiflexion at the ankles, flexion/extension at the knees, biceps, triceps,
and grip strength, while another treating physician noted that Plaintiff had a normal gait and
station. (AR 507 (citing AR 1078, 1097)).
The ALJ’s evaluation of the consistency of Dr. Perez’s opinion raises several issues. First,
the identical issue of Dr. Perez’s statements regarding Plaintiff’s use of a cane and non-use of an
assistive device was addressed by Judge Martin in his opinion reversing the final decision of the
Commissioner and remanding this matter in March 2018. There, Judge Martin explained that “it

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is not apparent to the Court how needing a cane sometimes, especially in a work environment, is
inconsistent with not requiring an assistive device while undergoing a physical examination at a
doctor’s office.” Reed v. Berryhill, No. 2:16-CV-406-JEM, 2018 WL 1325002, at *3 (N.D. Ind.
Mar. 15, 2018) (citing Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010) (“Absurdly, the
administrative law judge thought it suspicious that the plaintiff uses a cane, when no physician had
prescribed a cane. A cane does not require a prescription.”); SSR 96-7p, 1996 WL 374186, at *8
(Jul. 2, 1996) (“The individual’s daily activities may be structured so as to minimize symptoms to
a tolerable level or eliminate them entirely, avoiding physical or mental stressors that would
exacerbate the symptoms.”)). The ALJ’s finding that Dr. Perez’s opinion is internally inconsistent
due to these statements is erroneous for the same reason now as in March 2018.
Second, the ALJ misinterpreted Dr. Perez’s findings regarding Plaintiff’s ability to sit and
operate a motor vehicle. The Medical Source Statement filled out by Dr. Perez includes a
worksheet allowing a physician to check off certain options. (See AR 479-84). For the question of
how often Plaintiff could operate a motor vehicle, the only options on the form are “never,”
“occasionally (up to 1/3),” “frequently (1/3 to 2/3),” and “continuously (over 2/3).” (AR 483).
Dr. Perez’s only option in this section was to check one of these boxes. And, while the ALJ is
correct that “occasionally” means up to one-third of an eight-hour workday, the definition of this
term provided at the beginning of the form itself, which matches the definition provided in relevant
Social Security Rulings, states that it means “very little to one-third of the time.” (AR 479; See
SSR 96-9p, 1996 WL 374185, at *3 (July 2, 1996) (“‘Occasionally’ means occurring from very
little up to one-third of the time, and would generally total no more than about 2 hours of an 8-hour
workday.”); SSR 83-10, 1983 WL 31251, at *5 (Jan. 1, 1983) (“‘Occasionally’ means occurring
from very little up to one-third of the time.”)). As such, Dr. Perez’s opinion that Plaintiff could sit

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for fifteen minutes is hardly inconsistent with her opinion that Plaintiff could operate a motor
vehicle for a duration that, by definition, included “very little” time. The ALJ’s statement that
Dr. Perez’s opinion supported a finding that Plaintiff could sit for “at least” one-third of an
eight-hour workday appears incorrect. (See AR 507).
Furthermore, the ALJ offered no support for the statement that Plaintiff could sit for “at
least” one-third of an eight-hour workday beyond pointing to Dr. Perez’s opinion which, again,
did not support that finding. And, even if the ALJ had cited support for this assertion, he
determined in the RFC that Plaintiff could sit for “up to six hours of an eight-hour workday,”
which is more than twice as much as one-third of an eight-hour workday. (AR 504 (emphasis
added)). Perhaps there is other evidence in the record that the ALJ meant to cite to support the
finding that Plaintiff could sit for at least one-third of the workday and up to six hours of the
workday, but the ALJ pointed to nothing other than Dr. Perez’s opinion, which did not stand for
that proposition and to which the ALJ assigned little weight regardless.
The same error described above is repeated in the ALJ’s reasoning that the statement that
Plaintiff could stand for only fifteen minutes was inconsistent with the statement that Plaintiff
could lift and carry up to 20 pounds as well as climb ramps and stairs for one-third of an eight-hour
workday, as these acts require an individual to stand and walk. When asked to note how often
Plaintiff could perform these activities, Dr. Perez marked the box for “occasionally.” (AR 479,
482). As noted above, this simply means that Dr. Perez found that Plaintiff could perform these
activities for “very little to one-third of the time.” (AR 479 (emphasis added); see SSR 96-9p, 1996
WL 374185, at *3; SSR 83-10, 1983 WL 31251, at *5). Such a finding is not inconsistent with
Dr. Perez’s opinion that Plaintiff could stand for only fifteen minutes both at a time and total for
an eight-hour workday. (See AR 480).

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Finally, the ALJ’s finding that Dr. Perez’s opinion was contradicted by later examinations
conducted by treating physicians is unsupported by the medical records cited by the ALJ to
underpin this determination. As noted above, the ALJ explained that, in contrast to the physical
limitations opined by Dr. Perez, a later treating physician found that Plaintiff had 5/5 strength in
all four extremities, including but not limited to plantar and dorsiflexion at the ankles,
flexion/extension at the knees, biceps, triceps, and grip strength. (AR 507 (citing AR 1078)). The
ALJ omitted, however, that this same physician opined that Plaintiff exhibited moderate-to-severe
pain with range of motion maneuvers of the thoracic spine, moderate pain with range of motion
maneuvers of the lumbar spine, and that Plaintiff ambulated with difficulty and exhibited guarding
and antalgic behavior. (AR 1078). Additionally, the ALJ noted that another treating physician
observed that Plaintiff had a normal gate and station. (AR 507 (citing AR 1097)). Again, however,
the ALJ omitted critical information: the examining physician in the relevant record was
conducting a mental status exam focused on Plaintiff’s psychological health, rather than his
physical wellbeing. (See AR 1091-102). The ALJ cited three other records for his conclusion that
subsequent physical examinations did not corroborate Dr. Perez’s findings, but these, too, do not
support the ALJ’s determination. One record notes that Plaintiff ambulated to the examination
room without assistance, an issue addressed above, another is a record of Plaintiff’s admission to
a hospital following a motor vehicle accident and has no immediate discernible application to the
ALJ’s finding, and the third noted that Plaintiff’s gait and stance appeared normal when he was
seen for a medication refill. (AR 297, 947, 1055).
The Seventh Circuit Court of Appeals has explained that “[a]n ALJ can reject an examining
physician’s opinion only for reasons supported by substantial evidence in the record,” and
“rejecting or discounting the opinion of the agency’s own examining physician” calls for “a good

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explanation.” Beardsley, 758 F.3d at 839; Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003);
see also Garcia v. Colvin, 741 F.3d 758, 761-62 (7th Cir. 2013) (noting that an examining agency
physician is “unlikely . . . to exaggerate an applicant’s disability”). While there may be compelling
evidence warranting rejection of some or all of Dr. Perez’s opinion, the ALJ failed to identify it.
The ALJ’s reasoning was further deficient in arriving at the determination that Dr. Perez’s opinion
was internally inconsistent. This is especially troubling in light of the fact that, as Plaintiff points
out, Dr. Perez found that Plaintiff had work-preclusive limitations. (Pl.’s Br. 14 n. 6, ECF No. 15;
AR 480 (limiting Plaintiff to fifteen minutes of sitting and standing in a workday); see SSR 96-9p,
1996 WL 374185, *3 (for sedentary work, “[s]itting would generally total about 6 hours of an
8-hour workday”); SSR 83-10, 1983 WL 31251, at *5 (sedentary work requires sitting
approximately six hours out of an eight-hour day)). The Court therefore finds that remand is
necessary for proper consideration of Dr. Perez’s opinion.
B. Subjective Symptom Testimony
Plaintiff argues that the ALJ made numerous errors in assessing Plaintiff’s subjective
allegations, rendering the ALJ’s determination on this issue unsupported by substantial evidence.
(Pl.’s Br. 16-20, ECF No. 15). The Commissioner, in turn, asserts that the ALJ properly considered
and evaluated Plaintiff’s subjective symptom testimony. (Def.’s Mem. 13-17, ECF No. 16).
The ALJ ultimately found that Plaintiff’s allegations regarding his subjective symptoms
were not consistent with the medical evidence. (AR 510). In reaching this conclusion, the ALJ
noted that Plaintiff reported sustaining multiple injuries after falling from a bridge in 1988, yet
Plaintiff worked as a carpenter after this incident. (AR 510). The ALJ further noted that earning
records indicate that, while Plaintiff stopped working in 2008, he nonetheless reported working
odd jobs in May 2014. (AR 510). Additionally, the ALJ recounted Plaintiff’s May 2017 report that

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he was walking while conducting household chores. (AR 510). Finally, the ALJ stated that
Plaintiff’s symptoms of anxiety and depression have been treated with medications, but noted that
Plaintiff has not been wholly compliant in taking his medications. (AR 510).
The ALJ’s findings in this regard are problematic for the same reasons previously
explained by Judge Martin. In his March 2018 opinion remanding this matter, Judge Martin noted
that “attempting to work after the onset of disability does not necessarily mean that a person is not
disabled.” Reed, 2018 WL 1325002, at *4. Indeed, the Seventh Circuit Court of Appeals has
explained that “even persons who are disabled sometimes cope with their impairments and
continue working long after they might have been entitled to benefits.” Shauger v. Astrue, 675
F.3d 690, 697 (7th Cir. 2012). The Court of Appeals has further noted that “[a] person can be
totally disabled for purposes of entitlement to social security benefits even if, because of an
indulgent employer or circumstances of desperation, he is in fact working.” Gentle v. Barnhart,
430 F.3d 865, 867 (7th Cir. 2005).
Here, as noted by Judge Martin, Plaintiff testified at the previous hearing in 2015 that he
attempted to continue doing construction work after his 1988 accident, but that as the work became
more difficult over the years due to his physical limitations he had to stop. Reed, 2018 WL
1325002, at *4; AR 40-43. Plaintiff further testified that he did odd jobs here and there for money,
but that he had been unable to do anything for several years. (AR 43-44). An ALJ can certainly
consider a claimant’s work history, both as it bears upon the claimant’s veracity and as it pertains
to the ability to perform work in the economy. Here, however, and once again, “[r]ather than
considering Plaintiff’s failed attempts to continue working as indicative of his veracity, the ALJ
used them to find him less than believable.” Reed, 2018 WL 1325002, at *4; see AR 510
(recounting Plaintiff’s work history despite complaints of injury and alleged physical

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impairments). And, while the ALJ can properly make a finding on veracity, the Seventh Circuit
Court of Appeals has cautioned against any direct inference that, since the Plaintiff worked, he
lacked a disability. See Shauger, 675 F.3d at 697 (“[E]ven persons who are disabled sometimes
cope with their impairments and continue working long after they might have been entitled to
benefits.”).
Moreover, it was improper for the ALJ to perfunctorily conclude that Plaintiff’s purported
noncompliance with taking his medication undercut his allegations regarding the severity of his
symptoms without offering any further analysis on the issue. See Craft v. Astrue, 539 F.3d 668,
679 (7th Cir. 2008) (holding that ALJ must not draw inferences about plaintiff’s condition from
plaintiff’s infrequent treatment or failure to follow treatment plan unless ALJ has explored
plaintiff’s explanations as to lack of medical care); SSR 16-3p, 2017 WL 5180304, a t *9-10
(Oct. 25, 2017) (explaining “[w]e will not find an individual’s symptoms inconsistent with the
evidence in the record [based on a failure to follow prescribed treatment that might improve
symptoms] without considering possible reasons he or she may not comply with treatment or seek
treatment consistent with the degree of his or her complaints” and noting that some factors to
consider are an inability to afford treatment and the side effects of medication). And,
problematically, the records cited by the ALJ do not support his conclusion. The first cited record
reflects that Plaintiff stopped taking a certain medication because his mood was worse while on it.
(AR 409). The second cited record reflects that Plaintiff stopped taking two other medications
because one eventually ceased helping him and the other made him feel “out of it.” 4 (AR 1196).
Additionally, though not mentioned by the ALJ, Plaintiff testified at the most recent hearing that
his doctor is currently attempting to find a medication to help with his anxiety. (AR 546). The
Additionally, the ALJ himself acknowledged that Plaintiff stopped taking the latter medication due to side effects,
yet still found that Plaintiff was noncompliant with his medication regimen. (AR 509, 510).
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ALJ’s determination that Plaintiff’s failure to take certain medications was inconsistent with his
allegations regarding his subjective symptoms—absent any analysis from the ALJ as to why
Plaintiff might not be compliant with a specific medication regimen—was error. Because the Court
finds that remand is necessary on other grounds, the Court notes that, upon remand, proper
consideration should be given to Plaintiff’s alleged symptoms and any potential limitations therein.
C. Residual Functional Capacity
Plaintiff notes several issues with the ALJ’s RFC determination. First, Plaintiff argues that
the ALJ failed to explain the basis for his determination that Plaintiff had manipulative limitations,
yet was accommodated by restrictions in the RFC limiting him to occasionally reaching overhead
with his nondominant left upper extremity, frequently reaching in all other directions with his
nondominant left upper extremity, and frequently handling and fingering with his dominant right
hand. (Pl.’s Br. 6-9, ECF No. 15). Second, Plaintiff asserts that the ALJ failed to identify what
evidence supported a limitation to shifting positions every thirty minutes or alternating between
sitting or standing for one to two minutes at a time while remaining on task, rather than a limitation
with greater restrictions in these areas. Id. at 9-10. Third, Plaintiff states that the ALJ failed to
identify the evidentiary basis for concluding that Plaintiff required a cane to walk but not to stand.
Id. at 10-12. Finally, Plaintiff argues that the ALJ erred by failing to explain why a limitation
regarding Plaintiff’s need to frequently lie down was not included in the RFC. Id. at 13-14.
Because the Court finds that remand is necessary for proper consideration of the opinion
of Dr. Perez and Plaintiff’s allegations regarding his subjective symptoms, the Court does not reach
a determination on Plaintiff’s arguments regarding the RFC. However, the Court notes that, upon
remand, proper consideration should be given to Plaintiff’s alleged physical limitations.

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D. Request for Award of Benefits
Plaintiff requests that the Court reverse and remand for an award of benefits or, in the
alternative, for a new hearing. “Courts have the statutory power to affirm, reverse, or modify the
Social Security Administration’s decision, with or without remanding the case for further
proceedings.” Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011) (citing 42 U.S.C. § 405(g)).
Nonetheless, “[a]n 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.” Id. at 415. Remand for further
proceedings, not an award of benefits, is required in this matter, as it is not clear on the current
record that an award of benefits is required.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS the alternative relief sought in
Plaintiff’s Brief in Support of Reversing the Decision of the Commissioner of Social Security [DE
15], 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 DIRECTS the
Clerk of Court to ENTER JUDGMENT in favor of Plaintiff and against Defendant.
So ORDERED this 30th day of March, 2021.
s/ Joshua P. Kolar
MAGISTRATE JUDGE JOSHUA P. KOLAR
UNITED STATES DISTRICT COURT

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