Voorhees v. Commissioner of Social Security

Filing 30

OPINION AND ORDER: The Court hereby GRANTS the relief requested in BriefPlaintiffs Brief in Support of Her Motion to Reverse the Decision of the Commissioner of Social Security (sic) DE 19 and REMANDS this matter for further proceedings consistent with this opinion. Signed by Magistrate Judge John E Martin on 1/12/2015. (cc: All counsel of record)(rmc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DIXIE A. VOORHEES,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner
of the Social Security Administration,
Defendant.

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CAUSE NO.: 3:14-CV-128-JEM

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Dixie A.
Voorhees on January 23, 2014, and a Brief Plaintiffs Brief in Support of Her Motion to Reverse
the Decision of the Commissioner of Social Security (sic) [DE 19], filed by Plaintiff on July 18,
2014. Plaintiff requests that the decision of the Administrative Law Judge be reversed and
remanded for further proceedings. On October 28, 2014, the Commissioner filed a response, and
on November 18, 2014, Plaintiff filed a reply. For the following reasons, the Court grants
Plaintiff’s request for remand.
PROCEDURAL BACKGROUND
On September 30, 2010, Plaintiff filed an application for disability insurance benefits
(“DIB”) with the U.S. Social Security Administration (“SSA”) alleging that she became disabled
on March 11, 2008. Plaintiff’s application was denied initially and upon reconsideration. On
June 11, 2012, Administrative Law Judge (“ALJ”) Jonathan Stanley held a hearing at which
Plaintiff, with an attorney, and a vocational expert (“VE”) testified. On June 19, 2012, the ALJ
issued a decision finding that Plaintiff was not disabled.

The ALJ made the following findings under the required five-step analysis:
1.

The claimant last met the insured status requirements of the Social Security Act
on June 30, 2011.

2.

The claimant has not engaged in substantial gainful activity during the
period from her alleged onset date of March 11, 2008, through her date
last insured of June 30, 2011. (20 CFR 404.71 et seq.).

3.

Through the date last insured, the claimant had severe impairments:
obesity; mild degenerative disc disease of the cervical and lumbar spine
(“DDD”), and fibromyalgia (20 CFR 404.1520(c)).

4.

Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equalled any of the
listed impairments in 20 CFR 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).

5.

Through the date last insured, the claimant had the residual functional
capacity to perform a full range of work at all exertional levels but with
the following nonexertional limitations: the claimant is limited to no more
than occasional climbing of stairs and ramps, balancing, stooping,
kneeling, crouching, or crawling, and no climbing of ropes, ladders, or
scaffolds.

6.

Through the date last insured, the claimant was able to perform past
relevant work as a filler remanufacturing toner. (20 CFR 404.1565).

7.

The claimant was not under a disability, as defined in the Social Security
Act, at any time from March 11, 2008, through June 30, 2011, the date last
insured (20 CFR 404.1520(f)).

On July 18, 2013, the Appeals Council denied Plaintiff’s request for review, leaving the
ALJ’s decision the final decision of the Commissioner.
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).

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FACTS
Plaintiff

was

diagnosed

with

fibromyalgia,

hypertension,

hyperlipidemia,

gastroesophageal reflux disease (GERD), major depressive disorder ,and mild degenerative disc
disease of the cervical and lumbar spine.
Plaintiff was seen by her physician, Dr. Hough, about every three months from 2009 on.
He treated her for fibromyalgia, hypertension, hyperlipidemia, back pain, and severe depression.
On June 14, 2011, he completed a Medical Source Statement, identifying limitations on
Plaintiff’s work-related activities. The form indicated that Plaintiff could only rarely lift ten
pounds, twist, stoop, crouch, or climb stairs, and had limitations with reaching, handling, or
fingering. Dr. Hough noted that Plaintiff would be off task about 25% of the day and could only
tolerate low stress work, and would have to miss more than four days per month because of her
impairments or treatment. He opined that Plaintiff would be limited to sitting for less than two
hours and standing and/or walking for less than two hours in a workday; would require a job that
permitted her to sit and stand at will; and would need hourly unscheduled breaks.
On November 22, 2010, state agency psychologist Dr. Link performed a psychological
assessment and opined that Plaintiff was moderately impaired in her ability to perform workrelated activities due to her anxiety and depression, and that she was incapable of managing her
own funds.
On December 1, 2010, Dr. Shoucair performed a physical examination for the agency and
diagnosed Plaintiff with neck pain, low back pain, fibromyalgia, hypertension, and GERD. He
opined that Plaintiff was able to sit, stand, walk, handle objects, hear, see, and speak.

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On December 29, 2010, non-examining state agency physician Dr. Ruiz opined that
Plaintiff could lift 20 pounds occasionally and 10 pounds frequently, could sit and stand or walk
for six hours each over the course of a workday, and could occasionally climb ramps, stairs,
ladders, ropes, and scaffolds, balance stoop, kneel, crouch, and crawl. Dr. Corcoran affirmed the
opinion in April 2011.
STANDARD OF REVIEW
The Social Security Act authorizes judicial review of the final decision of the agency and
indicates that the Commissioner’s factual findings must be accepted as conclusive if supported
by substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ
will reverse only if the findings are not supported by substantial evidence or if the ALJ has
applied an erroneous legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005).
Substantial evidence consists of “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005)
(quoting Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003)).
A court reviews the entire administrative record but does not reconsider facts, re-weigh
the evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its
judgment for that of the ALJ. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford
v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999).
Thus, the question upon judicial review of an ALJ’s finding that a claimant is not disabled within
the meaning of the Social Security Act is not whether the claimant is, in fact, disabled, but
whether the ALJ “uses the correct legal standards and the decision is supported by substantial
evidence.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citing O’Connor-Spinner v.

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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 his analysis of the evidence in order to allow the
reviewing court to trace the path of his reasoning and to be assured that the ALJ considered the
important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Diaz v. Chater, 55
F.3d 300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). An ALJ must
“‘build an accurate and logical bridge from the evidence to [the] conclusion’ so that, as a
reviewing court, we may assess the validity of the agency’s final decision and afford [a claimant]
meaningful review.” Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007) (quoting Scott, 297 F.3d
at 595)); see also O’Connor-Spinner, 627 F.3d at 618 (“An ALJ need not specifically address
every piece of evidence, but must provide a ‘logical bridge’ between the evidence and his
conclusions.”); Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (“[T]he ALJ’s analysis
must provide some glimpse into the reasoning behind [the] decision to deny benefits.”).
DISABILITY STANDARD
To be eligible for disability benefits, a claimant must establish that she suffers from a
“disability” as defined by the Social Security Act and regulations. The Act defines “disability”
as an inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to result in death or that has
lasted or can be expected to last for a continuous period of not less than twelve months. 42

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U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). To be found disabled, the claimant’s impairment must
not only prevent her from doing her previous work, but considering her age, education, and work
experience, it must also prevent her from engaging in any other type of substantial gainful
activity that exists in significant numbers in the economy.

42 U.S.C. §§ 423(d)(2)(A),

1382c(a)(3)(B); 20 C.F.R. §§ 404.1520(e)-(f), 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 not, the
claimant is not disabled, and the claim is denied; if yes, the inquiry proceeds to step three; (3)
Do(es) the impairment(s) meet or equal a listed impairment in the appendix to the regulations?
If yes, the claimant is automatically considered disabled; if not, then the inquiry proceeds to step
four; (4) Can the claimant do the claimant’s past relevant work? If yes, the claimant is not
disabled, and the claim is denied; if no, then the inquiry proceeds to step five; (5) Can the
claimant perform other work given the claimant’s RFC, age, education, and experience? If yes,
then the claimant is not disabled, and the claim is denied; if no, the claimant is disabled. 20
C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); see also Scheck v. Barnhart, 357 F.3d 697,
699-700 (7th Cir. 2004).
At steps four and five, the ALJ must consider an assessment of the claimant’s RFC. The
RFC “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) (citing SSR

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96-8p, 1996 WL 374184 (July 2, 1996); 20 C.F.R. § 404.1545(a)) (other citations omitted). The
RFC should be based on evidence in the record. Craft v. Astrue, 539 F.3d 668, 676 (7th Cir.
2008) (citing 20 C.F.R. § 404.1545(a)(3)). The claimant bears the burden of proving steps one
through four, whereas the burden at step five is on the ALJ. Zurawski, 245 F.3d at 886; see also
Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
ANALYSIS
A.

Residual Functional Capacity
Plaintiff argues that the ALJ did not properly evaluate the medical and mental health

opinions in the record. The Commissioner argues that the ALJ’s findings are supported by
substantial evidence.
The RFC is an assessment of what work-related activities the claimant can perform
despite her limitations. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); see also 20
C.F.R. §§ 404.1545(a)(1); 416.1545(a)(1). In evaluating a claimant’s RFC, an ALJ is expected
to take into consideration all of the relevant evidence, including both medical and non-medical
evidence. See 20 C.F.R. §§ 404.1545(a)(3); 416.945(a)(3). According to SSA regulations:
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.

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SSR 96-8p at *7. Although an ALJ is not required to discuss every piece of evidence, he must
consider all of the evidence that is relevant to the disability determination and provide enough
analysis in his decision to permit meaningful judicial review. Clifford, 227 F.3d at 870; Young,
362 F.3d at 1002. In other words, the ALJ must build an “accurate and logical bridge from the
evidence to his conclusion.” Scott, 297 F.3d at 595 (quoting Steele v. Barnhart, 290 F.3d 936,
941 (7th Cir. 2002)).
The Court is particularly concerned with the ALJ’s treatment of Plaintiff’s fibromyalgia.
At step three of his analysis, the ALJ concluded that Plaintiff had fibromyalgia that was severe,
but not severe enough to meet or medically equal a listed impairment. AR 18. However, when
describing the weight given to medical sources, the ALJ discounts the opinions of all the
physicians who diagnosed her fibromyalgia or discussed the limitations it causes her and states
that Plaintiff’s “allegations [of fibromyalgia] are not accepted as alleged because they are not
consistent with the objective medical evidence available in this decision maker.” AR 20. The
ALJ does not include reference to any medical professionals who concluded that Plaintiff is not
suffering from fibromyalgia, or even any medical professionals who questioned the diagnosis.
Not only is the ALJ’s discounting of Plaintiff’s fibromyalgia inconsistent with his earlier
conclusion that Plaintiff does suffer from severe fibromyalgia, it also appears that the ALJ is
substituting his own medical determination for that of the physicians who actually treated
Plaintiff. He discounted Dr. Hough’s diagnosis of fibromyalgia because the doctor’s notes did
not include a clinical examination the ALJ expected to see (one that is apparently based on an
outdated understanding of diagnostic techniques) and the doctor’s notes contain “no specific
notation as to the sign or symptoms with which the fibromyalgia diagnosis was made.” AR 22.

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The Seventh Circuit has repeatedly held that ALJs are not to make their own independent
medical findings. See, e.g., Myles v. Astrue, 582 F.3d 672, 677-78 (7th Cir. 2009); Blakes v.
Barnhart, 331 F.3d 565, 570 (7th Cir. 2003); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996).
Judges have been warned not to “succumb to the temptation to play doctor” because “lay
intuitions about medical phenomena are often wrong.” Schmidt v. Sullivan, 914 F.2d 117, 118
(7th Cir. 1990) (citing cases).
This same substituting of his own judgment for that of medical professionals is apparent
in the ALJ’s determination of Plaintiff’s physical capacity. Three physicians opined as to
Plaintiff’s RFC: Dr. Ruiz and Dr. Corcoran, two non-examining state agency doctors, and Dr.
Hough, Plaintiff’s treating physician. None of them opined that Plaintiff was capable of work at
the very heavy exertional level, but the ALJ concluded that there were no restrictions on
Plaintiff’s ability to do work at all exertional levels. The ALJ did give some explanation for his
discounting of the three RFC opinions, giving little weight to treating physician Dr. Hough as
described above and discounting the assessments of Dr. Ruiz and Dr. Corcoran because “the
record as a whole fails to support any limitation as to the claimant’s exertional level.” AR 23.
He cited to Dr. Shoucair’s consultative examination in support of this contention, but Dr.
Shoucair did not specifically address Plaintiff’s exertional limitations, and his reliance on Dr.
Shoucair in this context is inconsistent with his earlier discounting of Dr. Shoucair’s report and
with the fact that medical professionals Ruiz and Corcoran took Dr. Shoucair’s assessment into
account when determining Plaintiff’s exertional capacity.
The ALJ substituted his own judgment for that of the multiple medical opinions in the
record, both as to Plaintiff’s diagnoses and her physical abilities. Although medical evidence

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“may be discounted if it is internally inconsistent or inconsistent with other evidence,” Knight,
55 F.3d at 314 (citing 20 C.F.R. § 404.1527(c)) (other citations omitted), the ALJ “must provide
a ‘logical bridge’ between the evidence and his conclusions.” O’Connor-Spinner, 627 F.3d at
618. In this case, the ALJ concluded that Plaintiff suffered from the severe impairment of
fibromyalgia, but then discounted the opinion of any medical professional who addressed the
fibromyalgia, and he substituted his own opinion, unsupported by any medical professional, that
Plaintiff suffers from absolutely no exertional limitations.
Similar problems are in evidence in the ALJ’s analysis of Plaintiff’s depression. The
ALJ gave great weight to the assessment of the state agency psychiatric consultants, who opined
that Plaintiff’s depressive disorder was “non-severe,” and noted Plaintiff’s lack of hospitalization
and treatment only by a primary care physician instead of a specialist. Plaintiff argues that the
ALJ failed to explain the weight given to the opinion of Dr. Link, an examining doctor who
opined that Plaintiff was moderately impaired in her work-related activities because of her
anxiety and depression and was unable to handle her own funds. The ALJ emphasized the GAF
score given by Dr. Link rather than the limitations she expressed, engaging in the kind of
“cherry-picking” of mental health evidence the Seventh Circuit Court of Appeals warns against.
See, e.g., Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011) (“[A] person who suffers from a
mental illness will have better days and worse days, so a snapshot of any single moment says
little about her overall condition.”). The ALJ did not address the work-related limitations in Dr.
Link’s opinion. Although ALJs “are not bound by findings made by State agency or other
program physicians and psychologists, [] they may not ignore these opinions and must explain

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the weight given to the opinions in their decisions.” SSR 96-6p, 1996 WL 374180, at *2 (July 2,
1996).
Plaintiff also argues that the ALJ also failed to specifically address the portions of
treating physician Dr. Hough’s report that opined that Plaintiff would be off-task at work for
25% or more of the time because of her mental impairments. Again, an ALJ may not simply
ignore an opinion that addresses a plaintiff’s ability to work, but must “evaluate all the evidence
in the case record to determine the extent to which the opinion is supported by the record.” SSR
96-5p, 1996 WL 374183, at *3, *5 (July 2, 1996); see also Roddy, 705 F.3d at 636 (“Even
though the ALJ was not required to give [the treating physician]’s opinion [that the claimant
could not handle a full-time job] controlling weight, he was required to provide a sound
explanation for his decision to reject it.”). Although the ALJ gave reasons for disregarding Dr.
Hough’s fibromyalgia diagnosis, as discussed above, he did not address Dr. Hough’s treatment
of Plaintiff’s depressive disorder or the portions of his Medical Source Statement that dealt with
her mental limitations. The ALJ was required to take into account Dr. Link’s and Dr. Hough’s
opinions and give reasons for ignoring them. He failed to do so; a failure that is particularly
troubling since their opinions are inconsistent with the ALJ’s finding that Plaintiff did not suffer
from a severe mental impairment.
Plaintiff also argues that the ALJ failed to explain how he considered the limitations
caused by Plaintiff’s combination of impairments. “Although [] impairments may not on their
own be disabling, that would only justify discounting their severity, not ignoring them
altogether. Moreover, . . . an ALJ must consider the combined effects of all of the claimant’s
impairments, even those that would not be considered severe in isolation.” Terry v. Astrue, 580

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F.3d 471, 477 (7th Cir. 2009); see also Martinez v. Astrue, 630 F.3d 693, 698 (7th Cir. 2011)
(“Even if each problem assessed separately were less serious than the evidence indicates, the
combination of them might be disabling.”); Getch v. Astrue, 539 F.3d 473, 483 (7th Cir. 2008)
(“[A]n ALJ is required to consider the aggregate effects of a claimant’s impairments, including
impairments that, in isolation, are not severe.”) (citing 20 C.F.R. § 404.1523; Golembiewski v.
Barnhart, 322 F.3d 912, 918 (7th Cir. 2003)).
In particular, Plaintiff argues that the ALJ failed to consider whether Plaintiff’s obesity,
in combination with her other impairments, caused limitations in Plaintiff’s ability to work.
“Social Security Ruling 02-1p requires an ALJ to consider the exacerbating effects of a
claimant’s obesity on her underlying conditions (even if the obesity is not itself a severe
impairment) when arriving at a claimant’s RFC,” Hernandez v. Astrue, 277 F. App'x 617, 623-24
(7th Cir. 2008) (citing SSR 02-1p, 2002 WL 34686281 (Sept. 12, 2002)) (other citations
omitted), and the Court notes that in this case the ALJ concluded that Plaintiff’s obesity was a
severe impairment, making the determination even more important. See also Gentle v. Barnhart
, 430 F.3d 865, 868 (7th Cir. 2005) (finding that, even if obesity is not a severe impairment itself
and “merely aggravates a disability caused by something else[,] it still must be considered for its
incremental effect on the disability”). Ruling 02-1p provides that in evaluating obesity in
assessing RFC, “[a]n assessment should also be made of the effect obesity has upon the
individual’s ability to perform routine movement and necessary physical activity within the work
environment.”

SSR 02-1p, at *6.

Further, Ruling 02-1p explains that an ALJ’s RFC

determination must consider an individual’s maximum remaining ability to do sustained work
activities in an ordinary work setting on a regular and continuing basis. Id. (citing SSR 96-8p).

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On remand, the ALJ is directed to consider the combination of Plaintiff’s impairments, even
those that are not severe in isolation, and to specifically address the impact her obesity and her
mental health problems have on her ability to perform work.
This matter is being remanded for a new RFC. On remand, the ALJ is directed to fully
consider each of the Plaintiff’s alleged impairments, alone and in combination, and provide a
logical bridge from the evidence to his conclusion. He must avoid substituting his own medical
judgment for that of the medical professionals in the record and include a thorough description
of the medical and mental health evidence on which he bases his determination and an
explanation of how he weighed the opinions of Plaintiff’s treating and examining healthcare
providers.
B.

Credibility Assessment
Plaintiff argues that the ALJ improperly evaluated Plaintiff’s credibility.

The

Commissioner argues that the ALJ’s opinion is supported by substantial evidence.
The ALJ must weigh the claimant’s subjective complaints, the relevant objective medical
evidence, and any other evidence of the following factors:
(i) [The claimant’s] daily activities;
(ii) The location, duration, frequency, and intensity of [] pain or
other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any
medication . . . ;
(v) Treatment . . . for relief of [] pain or other symptoms;
(vi) Any measures . . . used to relieve your pain or other symptoms
. . . ; and
(vii) Other factors concerning [] functional limitations and
restrictions due to pain or other symptoms.

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20 C.F.R. § 404.1529(c)(3). In making a credibility determination, Social Security Ruling 96–7p
states that the ALJ must consider the record as a whole, including objective medical evidence,
the claimant’s statement about symptoms, any statements or other information provided by
treating or examining physicians and other persons about the conditions and how they affect the
claimant, and any other relevant evidence. See SSR 96-7p, 1996 WL 374186 (Jul. 2, 1996).
An ALJ is not required to give full credit to every statement of pain made by the claimant
or to find a disability each time a claimant states he or she is unable to work. See Rucker v.
Chater, 92 F.3d 492, 496 (7th Cir. 1996). However, Ruling 96-7p provides that a claimant’s
statements regarding symptoms or the effect of symptoms on his ability to work “may not be
disregarded solely because they are not substantiated by objective evidence.” SSR 96-7p at *6.
An ALJ’s credibility determination is entitled to substantial deference by a reviewing court and
will not be overturned unless the claimant can show that the finding is “patently wrong.”
Prochaska, 454 F.3d at 738.
The ALJ found Plaintiff less than credible in part because she did not seek additional
treatment, specifically noting that she did not go to the emergency room, consult a specialist, or
have surgery. However, Plaintiff argues that the ALJ did not ask Plaintiff about her failure to
obtain this additional treatment, despite evidence in the record, such as her lack of insurance,
that there might be explanations other than her lack of credibility. The ALJ “must not draw any
inferences about an individual’s symptoms and their functional effects from a failure to seek or
pursue regular medical treatment without first considering any explanations that the individual
may provide” and “may need to recontact the individual or question the individual at the
administrative proceeding in order to determine whether there are good reasons the individual

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does not seek medical treatment or does not pursue treatment in a consistent manner.” SSR 967p, at *7; see also Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012) (“Although a history of
sporadic treatment or the failure to follow a treatment plan can undermine a claimant's
credibility, an ALJ must first explore the claimant's reasons for the lack of medical care before
drawing a negative inference.”); Craft, 539 F.3d at 679 (“[T]he ALJ ‘must not draw any
inferences’ about a claimant’s condition from this failure [to follow a treatment plan] unless the
ALJ has explored the claimant’s explanations as to the lack of medical care.”) (quoting SSR 967p). When the ALJ questioned Plaintiff about her failure to seek additional mental health
treatment, she stated that she was unable to afford it (AR 52), but he did not appear to take that
into account in his analysis of her depression and did not ask Plaintiff about the gaps in her
physical treatment on which he based his conclusion that she was less than credible. See Craft,
539 F.3d at 679 (“Here, although the ALJ drew a negative inference as to [the plaintiff]’s
credibility from his lack of medical care, she neither questioned him about his lack of treatment
or medicine noncompliance during that period, nor did she note that a number of medical records
reflected that [the plaintiff] had reported an inability to pay for regular treatment and
medicine.”).
Plaintiff also argues that the ALJ failed to consider the side effects of Plaintiff’s
medications, despite her testimony that they made her sleepy and lethargic, in contravention of
the requirement that he take these into account. See SSR 96-7p,*7 (including “side effects of
any medication the individual takes or has taken to alleviate pain or other symptoms” as one of
the types of evidence “that the adjudicator must consider in addition to the objective medical
evidence when assessing the credibility of an individual’s statements”) (citing 20 CFR

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404.1529(c) and 416.929(c)). In addition, Plaintiff argues that the ALJ failed to account for
observations of agency employees that support her allegations of mental health impairments. An
agency employee called Plaintiff and reported, among other things, that Plaintiff had a flat tone
and was at times close to tears. AR 196. The ALJ is required to “consider any observations
about the individual recorded by Social Security Administration (SSA) employees during
interviews, whether in person or by telephone,” but this information was not addressed by the
ALJ in his analysis.
The ALJ improperly relied on Plaintiff’s failure to seek treatment to find her less than
credible and failed to address other factors he should have included in his credibility assessment.
On remand, the ALJ is directed to fully consider Plaintiff’s testimony and the entirety of the
record in compliance with the applicable directives.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS the relief requested in Brief
Plaintiffs Brief in Support of Her Motion to Reverse the Decision of the Commissioner of Social
Security (sic) [DE 19] and REMANDS this matter for further proceedings consistent with this
opinion.
SO ORDERED this 12th day of January, 2015.

s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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