Nichols v. Commissioner of Social Security

Filing 26

OPINION AND ORDER: For the reasons stated above, the Court REVERSES the Commissioners decision and REMANDS this matter to the Commissioner for further proceedings consistent with this opinion. Signed by Judge Jon E DeGuilio on 9/14/2017. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JOHNNY NICHOLS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Case No. 3:16-CV-266 JD

OPINION AND ORDER
This is Plaintiff Johnny Nichols’ second time before this Court appealing the denial of
benefits. With respect to the first appeal, the magistrate judge remanded the case indicating that
the ALJ failed to adequately discuss whether Nichols’ back impairments met a Listing, and noted
that on remand the ALJ should expound upon the credibility analysis consistent with SSR 96-7p.
Nichols v. Colvin, No. 313-CV-01205-CAN, 2015 WL 196379 (N.D. Ind. Jan. 13, 2015). In
response, the Appeals Council remanded the case for further administrative proceedings
consistent with the Court’s order. R. at 422-24.
Supplemental hearings were then held before newly assigned Administrative Law Judge
Mario Silva (“ALJ”). On February 19, 2016, the ALJ relied on the testimony of vocational expert
Carrie Anderson (“VE”) in finding that Nichols was capable of performing other work in the
economy and was therefore not disabled. On May 3, 2016, Nichols filed a complaint in this
Court seeking review of the final decision of the Defendant Commissioner of Social Security
denying his application for social security disability benefits [DE 1]. Because the VE’s testimony
with respect to stooping was inconsistent with the social security regulations, remand is required
to resolve this inconsistency. Further necessitating remand, is the ALJ’s errors with respect to

determining Nichols’ residual functional capacity. For these reasons, as detailed below, the Court
remands this matter to the Commissioner for further proceedings.
I. FACTS
Nichols alleges that he has been disabled since January 1, 2015, due to chronic low back
pain caused by degenerative disc disease with radiculopathy.1 Nichols worked for twenty-five
years as a core setter, lifting iron weighing over two hundred and fifty pounds. He had to quit his
job in January 2011, because of his back pain. Thereafter, Nichols attempted to work as a packer
and kitchen supervisor because he needed the income. But despite taking extra pain medication
to get through the workday, the pain was intolerable and he could not sustain the work.
Medical records from 2008 through September 2015 document his repeated visits and
treatment for back pain by various doctors, including his treating physician, Dr. Vidya Kora. In
2008, an MRI revealed that Nichols had a degenerative disc protrusion at L5-S1 extending
posteriorly into the left lateral recess causing nerve root impingement and degenerative changes
in the L4-L5 intervertebral disc space. R. at 180. The following month, Nichols was diagnosed
with a lumbar herniated disc with foot drop. R. at 187. He received a lumbar epidural injection of
steroids and was referred for physical therapy. R. at 178, 187, 201.
Nichols continued to complain of back pain despite receiving physical therapy. R. at 200.
In January 2010, Dr. Kora diagnosed Nichols with degenerative joint disease of the lumbosacral
spine and left sided sciatica. R. at 200.
In June 2011, Nichols underwent a consultative examination by Dr. M. Korman, MD. Dr.
Korman noted that Nichols complained of frequent headaches and had a limited range of motion in
his cervical, lumbar, and thoracic spine. R. 208-13. Dr. Korman reported that Nichols’ forward

1

Nichols was 48 years old at the time of his disability onset date and 49 years old at the
time the ALJ denied his claim for disability insurance benefits.
2

flexion of the lumbar spine was 40 degrees (with normal being 90), while his extension was 15 (with
normal being 25), and his lateral flexion was 15 on both right and left sides (with normal being 25).
Dr. Korman documented that Nichols had tenderness in the spinal and paraspinal regions.

In August 2011, Nichols presented with complaints of exacerbated low back pain and it
was noted that he had lumbosacral palpable tenderness and paraspinal spasm. R. at 247. He was
diagnosed with exacerbation of low back pain, lumbosacral radiculitis, and degenerative disc
disease. From October 2011 through April 2012, Nichols continued to treat with Dr. Kora for
back, hip, leg, and joint point, joint swelling, and headaches. R. at 253-56. On April 16, 2012,
Dr. Kora prescribed Nichols a cane. R. at 253.
On May 17, 2012, Dr. Kora completed a medical source statement and opined that
Nichols could never regularly lift more than ten pounds. R. at 257-61. Dr. Kora believed that
Nichols could stand and/or walk for less than two hours and could sit for less than six hours in a
workday due to his severe back pain marked by muscle spasms and positive bilateral straight leg
raising tests. Dr. Kora concluded that Nichols could never kneel, crouch, crawl or stoop. She
opined that his condition was permanent and referred Nichols to an orthopedic surgeon. R. at
262.
From June 2012 through April 2015, Nichols continued to treat with Dr. Kora for
hypertension, osteoarthritis, back pain, and depression. R. 603-58. Treatment notes from January
2013 through November 2013, described Nichols as complaining of back pain and needing refills
on his medication. R. at 627-48. His musculoskeletal and neurological examinations were
normal, but he was diagnosed with back pain and osteoarthritis. Nichols’ medical records from
September 2014 through April 2015, demonstrate that Nichols consistently suffered from back
spasms and was on narcotic pain medication. R. at 603-18. Lumbar spine imaging from
September 2014 revealed mild degenerative changes to the lower lumbar spine. R. at 661.
3

During an orthopedic evaluation on November 6, 2014, Nichols complained of back pain
which radiated into his left leg and was marked by numbness, tingling, and weakness. R. at 58791. He rated the pain at an eight (on a scale of one to ten) and indicated that the pain was worse
with weather, bending, sitting, getting up from a seated position, and standing. Nichols weighed
235 pounds and had a body mass index (“BMI”) of 32.79 kg/m2.2 Dr. T. Ryan, DO, observed
abnormal gait and bilateral paralumbar tenderness. Dr. Ryan diagnosed Nichols with low back
pain, likely secondary to degenerative disc disease L4/L5 and L5/S1 and scheduled a lumbar
MRI.
Dr. Kora completed another medical source statement on August 10, 2015. R. at 598-602.
Dr. Kora diagnosed Nichols with back pain, degenerative joint disease, and sciatica. Positive
objective signs were lumbar muscle spasm and positive supine straight leg raising test. Dr. Kora
opined that Nichols could sit for fifteen minutes at a time for a total of less than two hours and
stand/walk for ten minutes at a time for a total of less than two hours in a workday. Dr. Kora
noted that Nichols required a cane to stand or walk. She also indicated that Nichols would need a
job that permitted shifting position at-will from sitting, standing, and walking, and that he would
need a fifteen minute unscheduled break every hour. She did not believe that Nichols could lift
and carry even ten pounds in a competitive work situation. Dr. Kora also assessed that Nichols
must never twist, stoop, bend, crouch, squat, or climb ladders. She indicated that Nichols would

2

The social security rulings recognize three levels of obesity. Level I includes BMIs of
30.0-34.9. Level II includes BMIs of 35.0-39.9. Level III, termed “extreme” obesity and
representing the greatest risk for developing obesity-related impairments, includes BMIs greater
than or equal to 40. SSR 02-1p. While documents reflect Nichols’ fluctuating weight, it does not
appear that he was diagnosed with obesity or that he claimed during the administrative process to
being limited by the same.
4

be off task for twenty percent of the workday due to his symptoms and he was incapable of even
“low stress” work.
Nichols underwent another consultative examination on September 22, 2015. R. at 66273. Consultative examiner J. Smejkal, MD, noted that Nichols complained of severe back pain
which radiated down his left leg and required him to walk with a prescribed cane. Nichols
described experiencing difficulties in daily activities due to limited mobility. On examination,
Dr. Smejkal noted that there was spinous and paraspinal tenderness in the lumbar region, and
that Nichols was only able to stoop and squat with difficulty. Dr. Smejkal opined that Nichols
could occasionally lift/carry up to fifty pounds, frequently lift/carry up to twenty pounds, sit for
six hours, stand for one hour, and walk for one hour during a workday. Dr. Smejkal concluded
that Nichols required the use of a cane to ambulate and could never climb ladders or scaffolds,
balance, stoop, kneel, crouch or crawl. He believed that Nichols’ limitations had lasted for longer
than twelve consecutive months.
On September 3, 2015, testimony was received from the claimant and neurologist Dr.
Karl Manders (an impartial medical expert) (“ME”). R at 333-82. After the hearing, ALJ Silva
sent Nichols for the consultative examination with Dr. J. Smejkal. Thereafter, ALJ Silva
conducted another hearing on January 11, 2016, during which the claimant and VE testified. R.
at 298-332.
Nichols testified that he tried working several jobs since 2011 by taking extra pain
medication and unscheduled breaks, but he was unable to withstand the pain. Because he was
covered by a high deductible insurance plan through his wife, Nichols indicated that he could not
afford to get the MRI that Dr. Ryan had scheduled. Nor could Nichols afford to continue
treatment with the specialist. Nichols indicated that he was advised that having surgery would

5

likely provide no benefit because of his existing arthritis. Nichols testified that he can sit for five
to twenty minutes and stand for fifteen to twenty minutes before his pain is unbearable. He
testified that he cannot bend or stoop because he cannot get back up on account of his back pain.
He is also unable to drive.
The ME testified that based on his review of the medical records, Nichols’ back problems
did not meet the requirements of any Listing; however, Nichols did have documented back pain
and reduced range of motion in the lumbar spine. Dr. Manders opined that Nichols could
perform work that included lifting/carrying ten pounds frequently and twenty pounds
occasionally. He believed that Nichols was capable of sitting for eight hours, so long as he had a
sit-stand option in order to stretch and relieve the pain every hour. He indicated that Nichols
would need “ergonomic changes” in his sitting position and work environment which would be
“very significant in allowing him to do the work, and that may be necessary for him to be
employed successfully in some occupations.” Dr. Manders clarified that whether or not certain
ergonomic accommodations were needed would “depend[] on the job.” Dr. Manders further
opined that Nichols could stand for fifteen to twenty minutes per hour for a total of two hours.
However, Nichols would have to avoid repetitive bending, twisting, or climbing of stairs, and he
could not crouch, crawl, or climb ladders, ropes, or scaffolds due to the arthritis in his back. Dr.
Manders did not believe that a cane was required from an anatomic standpoint, but he opined
that it would make standing more comfortable for Nichols.
The VE testified that based strictly on the (relevant) hypothetical posed to her (which
offered an assigned residual functional capacity (“RFC”)3 of sedentary work, with the ability to

3

Residual Functional Capacity is defined as the most a person can do despite any
physical and mental limitations that may affect what can be done in a work setting. 20 C.F.R. §
404.1545.
6

lift/carry fifty pounds occasionally and twenty pounds frequently, sit for six hours, stand for one
hour, and walk for one hour with a cane for ambulation, with the added limitations of no
climbing of ladders, ropes, and scaffolds, no crouching or crawling, occasional balancing,
kneeling, stooping, and climbing of ramps/stairs, occasional pushing/pulling bilaterally, avoiding
occasional exposure to hazards and frequent exposure to humidity, wetness, and pulmonary
irritants, but with the added ability to frequently operate a motor vehicle, operate foot controls,
and use the upper extremities), Nichols would not be able to perform his past work. However,
the VE opined that Nichols could still perform other work in the economy, such as work as a
surveillance monitor, order clerk, and final assembler. The VE confirmed that, generally
speaking, a person cannot maintain competitive work if he would be off-task more than ten
percent of the workday. Per the VE, the Dictionary of Occupational Titles (“DOT”) indicates that
stooping only occurs from a standing position, but not from a seated position. Thus, the VE
testified that there is no “stooping required in sedentary jobs.”
The ALJ issued a decision on February 19, 2016, denying Nichols disability benefits and
concluding that Nichols was not disabled under the Social Security Act because he was able to
perform other work in the national economy (step 5). Nichols did not file exceptions to the ALJ’s
decision, thereby making the ALJ’s decision the final determination of the Commissioner. 20
C.F.R. § 404.984(d). Nichols seeks review of the Commissioner’s decision, thereby invoking this
Court’s jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).
II. STANDARD OF REVIEW
This Court will affirm the Commissioner’s findings of fact and denial of disability
benefits if they are supported by substantial evidence. Craft v. Astrue, 539 F.3d 668, 673 (7th
Cir. 2008). Substantial evidence consists of “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
7

This evidence must be “more than a scintilla but may be less than a preponderance.” Skinner v.
Astrue, 478 F.3d 836, 841 (7th Cir. 2007). Thus, even if “reasonable minds could differ” about
the disability status of the claimant, the Court must affirm the Commissioner’s decision as long
as it is adequately supported. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
In this substantial-evidence determination, the Court considers the entire administrative
record but does not reweigh evidence, resolve conflicts, decide questions of credibility, or
substitute the Court’s own judgment for that of the Commissioner. Lopez ex rel. Lopez v.
Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). Nevertheless, the Court conducts a “critical review
of the evidence” before affirming the Commissioner’s decision. Id. An ALJ must evaluate both
the evidence favoring the claimant as well as the evidence favoring the claim’s rejection and may
not ignore an entire line of evidence that is contrary to the ALJ’s findings. Zurawski v. Halter,
245 F.3d 881, 888 (7th Cir. 2001). Consequently, an ALJ’s decision cannot stand if it lacks
evidentiary support or an adequate discussion of the issues. Lopez, 336 F.3d at 539. Ultimately,
while the ALJ is not required to address every piece of evidence or testimony presented, the ALJ
must provide a “logical bridge” between the evidence and the conclusions. Terry v. Astrue, 580
F.3d 471, 475 (7th Cir. 2009).
III. DISCUSSION
Disability and supplemental insurance benefits are available only to those individuals
who can establish disability under the terms of the Social Security Act. Estok v. Apfel, 152 F.3d
636, 638 (7th Cir. 1998). Specifically, the claimant must be 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
create a five-step sequential evaluation process to be used in determining whether the claimant
8

has established a disability. 20 C.F.R. § 404.1520(a)(4)(i)-(v). The steps are to be used in the
following order:
1. Whether the claimant is currently engaged in substantial gainful activity;
2. Whether the claimant has a medically severe impairment;
3. Whether the claimant’s impairment meets or equals one listed in the
regulations;
4. Whether the claimant can still perform relevant past work; and
5. Whether the claimant can perform other work in the community.
Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001).
At step three, if the ALJ determines that the claimant’s impairment or combination of
impairments meets or equals an impairment listed in the regulations, disability is acknowledged
by the Commissioner. 20 C.F.R. § 404.1520(a)(4)(iii). However, if a Listing is not met or
equaled, then in between steps three and four, the ALJ must assess the claimant’s residual
functional capacity, which, in turn, is used to determine whether the claimant can perform his
past work under step four and whether the claimant can perform other work in society at step
five of the analysis. 20 C.F.R. § 404.1520(e). The claimant has the initial burden of proof in
steps one through four, while the burden shifts to the Commissioner in step five to show that
there are a significant number of jobs in the national economy that the claimant is capable of
performing. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).
In relevant part, Nichols appeals the ALJ’s failure to resolve the inconsistency in the
VE’s testimony and the regulations concerning whether sedentary work requires stooping.
Nichols also contends that the ALJ’s RFC determination and the ALJ’s discrediting of Nichols’
complaints are not supported by substantial evidence. Because this case hinges on whether
Nichols can perform other work, the Court first explains why the VE’s testimony was unreliable.
9

The Court then details additional errors with respect to the RFC determination which shall be
corrected on remand.
IV. ANALYSIS
A. VE Testimony
At step five of the analysis for evaluating disability claims, the ALJ must determine
whether the claimant’s residual functional capacity enables him to perform jobs in the national
economy. Zurawski, 245 F.3d at 886. If a claimant has no non-exertional limitations, that is, if he
can perform the full range of work in his exertional level, the ALJ can rely on the Grid4 to
determine whether sufficient jobs exist. 20 C.F.R. § 404.1569; 20 C.F.R. § 404.1569a(b). If,
however, the claimant has non-exertional limitations, which reduce the number of jobs that he
can perform in his exertional level, the ALJ must pose a hypothetical to a vocational expert
incorporating all of the claimant’s limitations, and the vocational expert will then testify whether
appropriate jobs exist. Zurawski, 245 F.3d at 889; see also SSR 96–9p.
In this case, the ALJ concluded that Nichols could perform sedentary work with various
non-exertional limitations. Importantly, the impact of an RFC for less than a full range of
sedentary work is especially critical for individuals like Nichols, who have not yet attained age
50. SSR 96-9p. This is so because age, education, and work experience are not usually
significant factors in limiting the ability of individuals under age 50 to make an adjustment to
other work; and thus, the conclusion whether such individuals who are limited to less than the
full range of sedentary work are disabled will depend primarily on the nature and extent of their
functional limitations or restrictions. Id.

4

The medical vocational guidelines, commonly known as the Grids, are tables which evaluate a
claimant’s ability to work by matching his age, education, and work experience with his work
capability. 20 C.F.R. pt. 404, Subpt. P, Appendix 2.
10

With respect to the functional limitation concerning the ability to stoop, SSR 96–9p
discusses the stooping requirements inherent in sedentary work: An ability to stoop occasionally;
i.e., from very little up to one-third of the time, is required in most unskilled sedentary
occupations. Moreover, the regulation indicates that a complete inability to stoop would
significantly erode the unskilled sedentary occupational base and a finding that the individual is
disabled would usually apply; but, restriction to occasional stooping should, by itself, only
minimally erode the unskilled occupational base of sedentary work. SSR 96–9p. Basically, a
person must be able to stoop occasionally in order to perform all sedentary work. Id. Moreover,
SSR 83-14 defines stooping as “bending the body downward and forward by bending the spine
at the waist.” That regulation also indicates that in order to perform substantially all of the
exertional requirements of most sedentary jobs, a person would need to stoop occasionally (from
very little up to one-third of the time, depending on the particular job). SSR 83-14.
In this case, the VE testified that her opinion was consistent with the DOT which defined
stooping as only occurring from a standing position and not from a seated position. Thus, it was
the VE’s belief that no sedentary jobs required the ability to stoop. However, this testimony
directly contradicts the regulations indicating that the ability to occasionally stoop is required in
most unskilled sedentary occupations. SSR 96-9p; SSR 83-14. Therefore, given the VE’s
incorrect assumption that sedentary work can’t involve stooping, the Court has no way of
knowing whether the VE properly considered the fact that working as a surveillance monitor,
order clerk, and/or final assembler might actually require stooping. See, e.g., Lange v. Astrue,
No. 11 C 2958, 2012 WL 5818258, at *7–8 (N.D. Ill. Nov. 14, 2012) (wherein the VE testified
that sedentary work could be performed by the claimant as a bench assembler, order clerk, and

11

surveillance system monitor, but if the claimant could never stoop, then those jobs would be
unavailable).
The Commissioner suggests that this shortcoming is not akin to the type of problem
identified in SSR 00-4p and cases like Overman v. Astrue, 546 F.3d 456, 463 (7th Cir. 2008) and
Craft v. Astrue, 539 F.3d 668, 681 (7th Cir. 2008), requiring the ALJ to resolve apparent
conflicts between the DOT and the testimony of the VE. While this may be true, the problem
here is actually worse. That is, the VE’s testimony was just wrong with respect to the nonexertional requirements of sedentary work as denoted by the regulations.5 In other words, the VE
erroneously believed that stopping was never required of any sedentary jobs. But that simply
isn’t true, per SSR 96-9p and SSR 83-14. And ALJ’s may not rely on evidence provided by a VE
if that evidence is based on underlying assumptions or definitions that are inconsistent with the
social security regulatory policies or definitions. SSR 00-4p. Because the VE misunderstood the
stooping requirements of sedentary work (despite identification of the error by Nichols’ attorney
during the administrative hearing), the occupational information provided by the VE cannot
provide substantial evidence to support the ALJ’s conclusion. Allensworth v. Colvin, 814 F.3d
831, 835 (7th Cir. 2016) (reliance on the testimony of the VE is only permissible if the testimony
is reliable) (citing Overman, 546 F.3d at 464; Britton v. Astrue, 521 F.3d 799, 803 (7th Cir.
2008)). Because the Commissioner bears the burden in showing that there are a significant
number of jobs in the national economy that Nichols is capable of performing. Young, 362 F.3d
at 1000, remand is required to resolve this inconsistency.

5

Although SSRs are interpretive rules and do not have the force of law, the SSA makes them
binding on all components of the agency. 20 C.F.R. § 402.35(b)(1).
12

B. RFC Finding
The ALJ must determine an individual’s RFC, meaning “what an individual can still do
despite his or her limitations,” SSR 96–8p, based upon medical evidence as well as “other
evidence, such as testimony by the claimant.” Murphy v. Colvin, 759 F.3d 811, 817 (7th Cir.
2014) (citation omitted). In making a proper RFC determination, the ALJ must consider all of
the relevant evidence in the record, even as to limitations that are not severe. Id.; see 20 C.F.R. §
404.1529(a) (in making a disability determination, the ALJ must consider all of a claimant’s
symptoms, including pain, and how those symptoms affect a claimant’s daily life and ability to
work). The ALJ must then build “an accurate and logical bridge from the evidence to the
conclusion” so that a court can assess the validity of the agency’s decision and afford the
claimant meaningful review. Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007). Here, the ALJ’s
RFC analysis is insufficiently substantiated.
With specific regard to the ALJ’s finding that Nichols had the functional capacity to
occasionally stoop, this determination lacks the requisite logical bridge. The ALJ assigned Dr.
Smejkal’s opinion substantial weight, who had opined that Nichols could never stoop. The ALJ
then went on to suggest that he was giving deference to Nichols’ complaints of pain, but
confusingly found that Nichols was able to occasionally stoop. Thus, it appears that the ALJ
believed that he was imposing a more restrictive stooping limitation than that which was opined
by Dr. Smejkal, but he didn’t.
Moreover, to the extent that the ALJ intended to impose a less restrictive stooping
limitation (meaning, allowing for something more than “no stooping”), the basis upon which he
did so was not supported by the record. The ALJ found that Nichols could occasionally stoop
because his “recent physical examinations indicate that [his] spine is without spasm or

13

tenderness.” R. at 286. But the ALJ mischaracterized the medical evidence in this respect. In
fact, Nichols’ medical records from September 2014 through April 2015 demonstrate that he
consistently suffered from back spasms. Further, in November 2014 and September 2015, it was
noted that upon examination Nichols presented with bilateral paralumbar tenderness. Thus,
whether by mistake or design, the ALJ mischaracterized the most recent medical evidence
(spanning a year’s worth of time) in concluding that Nichols could occasionally stoop, and then
the ALJ improperly substituted his own opinion. See Murphy v. Astrue, 496 F.3d 630, 634 (7th
Cir. 2007) (“[A]n ALJ cannot disregard medical evidence simply because it is at odds with the
ALJ’s own unqualified opinion.”).
The ALJ’s conclusion that Nichols could occasionally stoop is further undermined by the
fact that longtime treating physician, Dr. Kora, opined as recently as August 2015 that Nichols
could never stoop or bend6—a sentiment echoed by Nichols during his testimony. While the ALJ
discounted this line of evidence on account of the fact that Nichols was not recommended to
undergo back surgery, R. at 286, 288, this is not a case where potential treatment methods are
available, such that a claimant’s decision not to pursue that treatment is an indication that his
limitations are not as severe as he claims. To the contrary, the record shows that Nichols pursued
other forms of treatment that were suggested to him, including physical therapy, narcotic pain
medication, and steroid injections. These treatments did not control his pain and he was still

6

The Court recognizes that the treating physician rule has been abrogated as to claims filed on or
after March 27, 2017. See 20 C.F.R. § 404.1520c; see also Revisions to Rules Regarding the
Evaluation of Medical Evidence, 81 FR 62560 at 62573-62574 (Sept. 9, 2016) (“we would no
longer give a specific weight to medical opinions . . . this includes giving controlling weight to
medical opinions from treating sources . . . [and] [w]e would not defer or give any specific
evidentiary weight, including controlling weight, to any . . . medical opinion, including from an
individual’s own healthcare providers.”). As Nichols’ application was filed before March 27,
2017, the treating physician rule applies. See id. § 404.1527.
14

documented as having positive straight leg tests, bilateral paralumbar tenderness, and needing a
cane to walk. Nichols also received medical advice that he was not a good candidate for surgery
because he likely would not get good results given his arthritis. Nichols further sought a second
opinion as to whether surgery would be an option, but he was unable to afford the needed MRI
or further follow-up treatment. While Nichols’ treatment may have been “conservative” in the
sense that he did not undergo surgery, that was only because surgery would not have helped or
was otherwise unavailable. Thus, Nichols’ credibility and the opinion of his treating physician
(with respect to his ability to stoop and any other claimed limitations) cannot reasonably be
discounted because Nichols failed to pursue invasive treatments that would not have likely
improved his condition.7 See Thomas v. Colvin, 534 F. App’x 546, 551–52 (7th Cir. 2013)
(rejecting an ALJ’s explanation that the claimant’s “conservative treatment” was not what “one
would expect” for someone with disabling pain, where the claimant had made “continuous
efforts” to treat her back pain).
It should also be noted that the ALJ’s reliance on Dr. Manders’ testimony does not serve
as a basis to affirm the ALJ’s ultimate RFC finding. This is so, because despite the ALJ’s
deeming Dr. Manders’ opinions as “well-supported by the evidence,” the ALJ never bothered to

7

Nor may the ALJ discount Nichols’ testimony because he wasn’t prescribed a cane
(when in fact he actually was), Terry, 580 F.3d at 477–78, or because he later curtailed his back
treatment (without also considering his financial reasons for doing so). Craft, 539 F.3d at 679;
see also Pierce v. Colvin, 739 F.3d 1046, 1050 (7th Cir. 2014).
15

discuss the appropriateness of the sit-stand option8 and ergonomic accommodations9 which Dr.
Manders opined were necessary in order for Nichols to sustain fulltime work. Thus, because the
ALJ failed to provide any explanation for rejecting the ME’s stated restrictions which could
erode the occupational base of sedentary work, there is not substantial evidence to support a
finding that the ALJ properly incorporated all of Nichols’ limitations in his RFC opinion. See,
e.g., Borski v. Barnhart, 33 F. App'x 220, 224-25 (7th Cir. 2002) (finding insufficient basis in the
evidence and discussion for the ALJ’s conclusion that the claimant was capable of fulfilling the
frequent sitting and occasional standing and stooping requirements of sedentary work without a
sit/stand option).
Here, the ALJ’s insufficiently supported RFC findings led the ALJ to ask hypotheticals of
the VE which omitted Nichols’ claimed (and potentially credible) limitations caused by his
chronic and well-documented back problems. For this reason (and given the VE’s
misunderstanding of the non-exertional requirements of sedentary work), the VE’s testimony
cannot be relied upon as an accurate indicator for the type of work that Nichols is capable of
performing.10 See Young v. Barnhart, 362 F.3d 995, 1003-05 (7th Cir. 2004) (the ALJ must

Most jobs have ongoing work processes which demand that a worker be in a certain
place or posture for at least a certain length of time to accomplish a certain task. SSR 83-12.
Unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand
at-will. Id. Thus, in cases of unusual limitation of ability to sit or stand, a VE should be consulted
to clarify the implications for the occupational base. Id.
8

9

To support a fifth-step finding that an individual can perform ‘other work,’ the
vocational expert testimony would have to show that the job, which is within the individual’s
capacity because of employer modifications, is representative of a significant number of such
jobs in the national economy. See Eaglebarger v. Astrue, No. 111-CV-00038, 2012 WL 602022,
at *5 (N.D. Ind. Feb. 23, 2012) (citations omitted).
10

Admittedly, the Seventh Circuit has occasionally concluded that a VE has familiarity
with the claimant’s limitations, despite any gaps in the hypothetical, when the record shows that
the VE independently reviewed the medical record or heard testimony directly addressing those
limitations and the VE considered that evidence when indicating the type of work the claimant is
16

determine the claimant's RFC before performing steps 4 and 5 because a flawed RFC typically
skews questions posed to the VE); SSR 96-8p. Thus, until the hypotheticals presented to the VE
include the functional limits that the ALJ accepts as credible, and the ALJ adequately explains
the claimant’s actual limitations and resulting RFC based on the relevant medical evidence, 20
C.F.R. §§ 404.1545, 404.1546(c), step five cannot be affirmed in this appeal. See Young, 362
F.3d at 1003-05.
The remedy for the shortcomings noted herein is further consideration, not an award of
benefits as requested by Nichols’ counsel.
V. CONCLUSION
For the reasons stated above, the Court REVERSES the Commissioner’s decision and
REMANDS this matter to the Commissioner for further proceedings consistent with this opinion.
SO ORDERED.
ENTERED: September 14, 2017

/s/ JON E. DEGUILIO
Judge
United States District Court

capable of performing. O'Connor-Spinner v. Astrue, 627 F.3d 614, n. 5 (7th Cir. 2010) (citing
Simila v. Astrue, 573 F.3d 503, 521 (7th Cir. 2009); Young, 362 F.3d at 1003; Steele v. Barnhart,
290 F.3d 936, 942 (7th Cir. 2002); Ragsdale v. Shalala, 53 F.3d 816, 819-21 (7th Cir. 1995);
Ehrhart v. Sec'y of Health & Human Servs., 969 F.2d 534, 540 (7th Cir. 1992)). This exception
does not apply here, since the VE never indicated having reviewed Nichols’ medical records, nor
did she indicate in her responses having relied on those records or the hearing testimony. Rather,
the VE’s attention was on the limitations of the hypothetical person posed by the ALJ, and not on
the record itself or the limitations of the claimant himself. Id. (citing Simila, 573 F.3d at 521;
Young, 362 F.3d at 1003).
17