BROWN v. BERRYHILL

Filing 20

ORDER-The Court REVERSES the ALJ's decision denying Plaintiff benefits and REMANDS this matter for further proceedings. Final judgment will issue accordingly. Signed by Magistrate Judge Doris L. Pryor on 6/26/2019.(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DESERAY B. 1,
Plaintiff,
v.
ANDREW M. SAUL, Commissioner, Social
Security Administration,
Defendant.

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No. 1:18-cv-01019-DLP-RLY

ORDER
Plaintiff Deseray B. requests judicial review of the denial by the
Commissioner of the Social Security Administration (“Commissioner”) of her
application for Social Security Disability Insurance (“DIB”) under Title II and for
supplemental security income (“SSI”) under Title XVI of the Social Security Act
(“the Act”). See 42 U.S.C. §§ 301, 416(i), 423(d), 1382c(a)(3). For the reasons set
forth below, the Court hereby REVERSES the ALJ’s decision denying the Plaintiff
benefits and REMANDS this matter for further consideration.
I. BACKGROUND
A. Procedural History
On October 15, 2014, Deseray filed for DIB under Title II of the Act and for
SSI under Title XVI of the Act, alleging her disability began on December 31, 2013.

The Southern District of Indiana has adopted the recommendations put forth by the Court
Administration and Case Management Committee regarding the practice of using only the first
name and last initial of any non-government parties in Social Security opinions. The Undersigned
has elected to implement that practice in this Order.
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[Dkt. 8-6 at 66 (R. 100.] The claim was denied initially on April 23, 2015, and upon
reconsideration on October 14, 2015. [Dkt. 8-4 at 8, 13 (R. 123, 128).] The Plaintiff
then filed a written request for a hearing on November 24, 2015, which was
granted. [Dkt. 8-3 at 66 (R. 100).]
On April 25, 2017, Administrative Law Judge Luke Woltering (the “ALJ”)
conducted the hearing, where Deseray and a vocational expert testified. [Id.] On
July 27, 2017, the ALJ issued an unfavorable decision finding that the Plaintiff was
not disabled as defined in the Act. [Id.] The Appeals Council denied Deseray’s
request for review of this decision on February 6, 2018, making the ALJ’s decision
final. [Dkt. 8-2 at 2 (R. 1).] The Plaintiff now seeks judicial review of the
Commissioner’s decision. See 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c).
B. Factual Background
Deseray was born on November 27, 1974, and was 39 years old at the time of
the alleged onset date in 2013. [Dkt. 8-5 at 2 (R. 192).] She received her General
Education Development (“GED”) diploma in 2002. [Id.]. She has past relevant work
history as a fast food worker, hair stylist, home care worker, [Dkt. 8-6 at 4 (R. 221)],
and street cleaner. [Dkt. 8-3 at 75 (R. 109).]
II. STANDARD OF REVIEW
To prove disability, a claimant must show she is unable to “engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than twelve months.” 42

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U.S.C. § 423(d)(1)(A). To meet this definition, a claimant’s impairments must be of
such severity that she is not able to perform the work she previously engaged in
and, based on her age, education, and work experience, she cannot engage in any
other kind of substantial gainful work that exists in significant numbers in the
national economy. 42 U.S.C. § 423(d)(2)(A). The Social Security Administration
(“SSA”) has implemented these statutory standards by, in part, prescribing a fivestep sequential evaluation process for determining disability. 20 C.F.R. § 404.1520.
The ALJ must consider whether:
(1) the claimant is presently [un]employed; (2) the claimant has a
severe impairment or combination of impairments; (3) the claimant's
impairment meets or equals any impairment listed in the regulations
as being so severe as to preclude substantial gainful activity; (4) the
claimant's residual functional capacity leaves [her] unable to perform
[her] past relevant work; and (5) the claimant is unable to perform any
other work existing in significant numbers in the national economy.
Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351-52 (7th Cir. 2005) (citation
omitted). An affirmative answer to each step leads either to the next step or, at
steps three and five, to a finding that the claimant is disabled. 20 C.F.R. § 404.1520;
Briscoe, 425 F.3d at 352. A negative answer at any point, other than step three,
terminates the inquiry and leads to a determination that the claimant is not
disabled. 20 C.F.R. § 404.1520. The claimant bears the burden of proof through step
four. Briscoe, 425 F.3d at 352. If the first four steps are met, the burden shifts to the
Commissioner at step five. Id. The Commissioner must then establish that the
claimant—in light of her age, education, job experience and residual functional

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capacity to work—is capable of performing other work and that such work exists in
the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. § 404.1520(f).
The Court reviews the Commissioner’s denial of benefits to determine
whether it was supported by substantial evidence or is the result of an error of law.
Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). Evidence is substantial
when it is sufficient for a reasonable person to conclude that the evidence supports
the decision. Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir. 2004). The standard
demands more than a scintilla of evidentiary support, but does not demand a
preponderance of the evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir.
2001). Thus, the issue before the Court is not whether Plaintiff is disabled, but,
rather, whether the ALJ’s findings were supported by substantial evidence. Diaz v.
Chater, 55 F.3d 300, 306 (7th Cir. 1995).
In this substantial-evidence determination, the Court must consider the
entire administrative record but not “reweigh evidence, resolve conflicts, decide
questions of credibility, or substitute our own judgment for that of the
Commissioner.” Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). Nevertheless,
the Court must conduct a critical review of the evidence before affirming the
Commissioner's decision, and the decision cannot stand if it lacks evidentiary
support or an adequate discussion of the issues. Lopez ex rel. Lopez v. Barnhart, 336
F.3d 535, 539 (7th Cir. 2003); see also Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir.
2002).

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When an ALJ denies benefits, he must build an “accurate and logical bridge
from the evidence to his conclusion,” Clifford, 227 F.3d at 872, articulating a
minimal, but legitimate, justification for his decision to accept or reject specific
evidence of a disability. Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004). The
ALJ need not address every piece of evidence in his decision, but he cannot ignore a
line of evidence that undermines the conclusions he made, and he must trace the
path of his reasoning and connect the evidence to his findings and conclusions.
Arnett v. Astrue, 676 F.3d 586, 592 (7th Cir. 2012); Clifford v. Apfel, 227 F.3d at 872.
III.

ALJ’S SEQUENTIAL FINDINGS

In determining whether Deseray qualified for disability benefits under the
Act, the ALJ went through the five-step analysis required by 20 C.F.R. §
404.1520(a). The ALJ first determined that the Plaintiff met the insured status
requirements of the Act through December 31, 2018 and has not engaged in
substantial gainful activity since her alleged onset date of December 31, 2013. [Dkt.
8-3 at 68 (R. 102).]
At step two, the ALJ found Plaintiff’s severe impairments to include “obesity;
bilateral knee osteoarthritis; peripheral neuropathy; hypertension; cervical
degenerative disc disease; and asthma,” along with the non-severe impairments of
“sickle cell disease; Sjoren’s [sic] Syndrome; supraventricular tachycardia;
palpitations; and testimony of severe skin issues with right leg.” [Dkt. 8-3 at 69 (R.
103).] The ALJ also found the Plaintiff’s adjustment disorder to be non-severe. [Id.]

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As noted above, the third step is an analysis of whether the claimant’s
impairments, either singly or in combination, meet or equal the criteria of any of
the conditions in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P,
Appendix 1. The Listings include medical conditions defined by criteria that the
SSA has pre-determined are disabling, so that if a claimant meets all of the criteria
for a listed impairment or presents medical findings equal in severity to the criteria
for a listed impairment, then the claimant is presumptively disabled and qualifies
for benefits. 20 C.F.R. § 404.1520(a)(4)(iii). At step three, the ALJ found that the
Plaintiff did not have an impairment or combination of impairments that meets or
medically equals a Listing. 2
At the fourth step of the five-step sequential evaluation process, the ALJ
weighed the medical evidence, the vocational expert’s testimony, and Deseray’s
testimony and work history, and determined that the Plaintiff had the RFC to
perform a range of sedentary work, except with the limitations that she:
•

Can occasionally use foot controls with the bilateral lower extremities;

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Cannot climb ladders, ropes or scaffolds;

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Can occasionally climb ramps/stairs, balance, stoop, kneel, crouch, and
crawl;

•

Cannot work around hazards, such as unprotected heights and exposed
moving mechanical parts;

The ALJ specifically considered Listing 1.02 for major joint dysfunction, Listing 1.04 for disorders
of the spine, Listing 3.03 for asthma, Listing 4.03 for hypertensive cardiovascular disease, Listing
11.14 for peripheral neuropathy, and Listing 12.04 for depressive, bipolar, and related disorders,
along with Social Security Ruling 02-1p for obesity. [Dkt. 8-3 at 70 (R. at 104).]
2

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•

Cannot tolerate concentrated exposure to extreme cold or extreme
heat, humidity, fumes, odors, dusts, gases, poor ventilation, and other
pulmonary irritants; and

•

Would need to elevate one or both of the lower extremities 8 to 12
inches throughout the workday.

[Dkt. 8-3 at 70 (R. 104.] Based on her RFC, the ALJ determined that Deseray could
not perform any of her past relevant work. [Dkt. 8-3 at 75 (R. 109).] Given the
Plaintiff’s age, education, work experience, RFC, and the vocational expert’s
testimony, the ALJ determined that the Plaintiff was able to perform work that
existed in significant numbers in the national economy, including that of a final
assembler, visual inspector, and sorter. [Dkt. 8-3 at 76 (R. 110).] Based on these
findings, the ALJ concluded that Deseray is not disabled under the Act. [Id.]
IV.

DISCUSSION

Deseray argues generally that substantial evidence fails to support the ALJ’s
determination that she was not disabled, but focuses on two 3 main contentions: 1)
that the ALJ erred by failing to address Listing 8.05 in his written decision and 2)
that the ALJ erred by improperly weighing the opinion of her treating provider and
by not including that provider’s assessed limitations in his RFC findings.
A. Listing 8.05
Plaintiff first argues that the ALJ erred by not addressing Listing 8.05, for
dermatitis, in the written decision. [Dkt. 14 at 11.] Plaintiff asserts that the

Plaintiff’s brief cites three arguments, but her second and third arguments are largely similar and
will be discussed jointly here.
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evidence of record demonstrated that the severity of the listing was either met or
medically equaled; specifically, she argues that “leg swelling, coupled with her knee
problems, creates an inability to ambulate.” [Dkt. 14 at 12.]
To prove presumptive disability by meeting the severity of a listed
impairment, a claimant must establish, with objective medical evidence, all the
criteria specified in the listing. See 20 C.F.R. § 404.1525; Sullivan v. Zebley, 493
U.S. 521, 530-31 (1990); Rice, 384 F.3d at 369 (“The applicant must satisfy all of the
criteria in the Listing in order to receive an award of” benefits at step three). In the
alternative, a claimant can establish “medical equivalence” in the absence of one or
more of the findings if they have other findings related to the impairment or have a
combination of impairments that “are at least of equal medical significance.” See 20
C.F.R. § 404.1526(a)-(b).
Listing 8.05 “Dermatitis” requires the presence of a skin condition “(for
example, psoriasis, dyshidrosis, atopic dermatitis, exfoliative dermatitis, allergic
contact dermatitis), with extensive skin lesions that persist for at least 3 months
despite continuing treatment as prescribed.” 20 C.F.R. Pt. 404, Subpt. P, App. 1,
8.05. The severity of skin disorders is based on the extent of the individual’s skin
lesions, the frequency of flare-ups, symptoms, and treatment. 20 C.F.R. Pt. 404,
Subpt. P, App. 1, Listing 8.00(C). Additionally, the preamble to the listing describes
how the necessary severity is medically demonstrated:
Extensive skin lesions. Extensive skin lesions are those that involve multiple
body sites or critical body areas, and result in a very serious limitation.

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Examples of extensive skin lesions that result in a very serious limitation
include but are not limited to:
a. Skin lesions that interfere with the motion of your joints and that very
seriously limit your use of more than one extremity; that is, two upper
extremities, two lower extremities, or one upper and one lower extremity.
b. Skin lesions on the palms of both hands that very seriously limit your
ability to do fine and gross motor movements.
c. Skin lesions on the soles of both feet, the perineum, or both inguinal areas
that very seriously limit your ability to ambulate.
20 C.F.R. Pt. 404, Subpt. P, App. 1, 8.00(C)(1).
Deseray argues that her skin condition satisfies the severity requirements of
Listing 8.05 because it “seriously limit[ed her] ability to ambulate.” [Dkt. 14 at 12.]
The Plaintiff is correct that the ALJ did not specifically address the Listing by
name, noting rather that he “considered section 1.02, 1.04, 3.03, 4.03, 11.14 and
12.04, along with obesity SSR 02-1p.” [Dkt. 8-3 at 70 (R. 104).] This omission is
notable considering that Plaintiff cited several pieces of evidence showing she
suffered from a form of dermatitis that caused skin ulcers, which could possibly
satisfy the diagnostic criteria of the listing. [Dkt. 14 at 11.] What the Plaintiff does
not cite, in her opening or reply brief, however, is any evidence of record to
demonstrate that her medical condition was severe enough that her impairments
“very seriously limit[ed her] ability to ambulate.” See 20 C.F.R. Pt. 404, Subpt. P,
App. 1, 8.00(C)(1(a)-(c).
The ALJ concluded in his opinion that there “is no evidence of an inability to
ambulate effectively for 12 months or longer.” [Dkt. 8-3 at 70 (R. 104).] Moreover,
the ALJ explained that the Plaintiff had made inconsistent statements throughout
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the record regarding her ability to ambulate. In a functional report, requested by
the SSA and dated December 8, 2014, which asked her how far she could walk, she
indicated “not a block” before needing to rest for forty minutes. [Dkt. 8-6 at 19 (R.
236).] On April 22, 2015, she reported to her treating provider that she was
“walking and exercising a lot” and “walking more, 6 blocks/day, but continues to
have knee pain.” [Dkt. 8-13 at 25 (R. 731).] On September 15, 2015, she again told
her provider that she was “still walking 6 block/day to bring children to school.”
[Dkt. 8-15 at 24 (R. 823).]
The ALJ need not address every piece of evidence, so long as the Court is able
to trace his logic from the evidence to his conclusions. Sims v. Barnhart, 309 F.3d
424, 429 (7th Cir. 2002). To establish error at step three, the Plaintiff must identify
evidence that was ignored or misstated which established all the requirements of
the listing or otherwise demonstrated equivalent severity. Id. at 429-31. Neither
the Plaintiff nor her medical providers have presented to this Court any evidence of
record that the severity of her skin disorder seriously limited her ability to
ambulate. Based on this lack of information and the Plaintiff’s inconsistent
statements throughout the record, the Court does not find any basis to disturb the
ALJ’s step three findings.
B. Treating Medical Provider Opinion
Plaintiff next argues that the ALJ erred by only giving some weight to the
RFC assessment of certified physician assistant Sarah Alajajian (“Ms. Alajajian”)

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and by not including Ms. Alajajian’s assessed limitations in his RFC findings 4. The
Plaintiff argues that it was clear error for the ALJ to discount the opinion of the
only treating medical provider and give more weight to the state agency consultants
who were not provided with the entirety of the Plaintiff’s medical history when they
conducted a record review. [Dkt. 14 at 12-13.] The Commissioner argues that the
ALJ provided a reasoned basis for giving only some weight to the opinion of Ms.
Alajajian, which included noting that Ms. Alajajian’s opinion was not wellsupported by medical findings and “went beyond what the record supports.” [Dkt.
18 at 10.]
When making a disability determination, an ALJ utilizes all evidence in the
case record. “This includes, but is not limited to, objective medical evidence; other
evidence from medical sources, including their opinions; statements by the
individual and others about the impairment and how it affects the individual’s
functioning; [and] information from other ‘non-medical sources….’” 5 Social Security
Ruling 06-03p6 draws a clear distinction between “acceptable medical sources” and
other health care providers because only “acceptable medical sources” can establish
the existence of a medically determinable impairment, give medical opinions, or be
considered treating sources. SSR 06-03p. Physician assistants, such as Ms.
Alajajian, are considered “other medical sources,” whose medical opinion may be
The Plaintiff separates these two points into two distinct arguments, but the Court finds that they
are more appropriately discussed together because they center on the same issue of whether the ALJ
properly weighed the opinion of Ms. Alajajian.
5
The term “medical sources” refers to both “acceptable medical sources” and other health care
providers who are not “acceptable medical sources.” SSR 06-03p.
6 This Social Security Ruling was rescinded but is still applicable to all claims filed prior to March
27, 2017.
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used to provide “insight into the severity of the individual’s impairment(s) and . . .
[to demonstrate how the impairment] affects the individual’s ability to function.”
SSR 06-03p; § 404.1527(d)(2); Phillips v. Astrue, 413 F. App’x. 878, 884 (7th Cir.
2010).
When evaluating opinions from medical sources who are not “acceptable
medical sources,” the “weight to which such evidence may be entitled will vary
according to the particular facts of the case, the source of the opinion, including that
source’s qualifications, the issue(s) that the opinion is about, and many other
factors…” including: “(1) How long the source has known and how frequently the
source has seen the individual; (2) How consistent the opinion is with other
evidence; (3) The degree to which the source presents relevant evidence to support
an opinion; (4) How well the source explains the opinion; (5) Whether the source has
a specialty or area of expertise related to the individual’s impairment(s); and (6)
Any other factors that tend to support or refute the opinion.” SSR 06-03p.
The ALJ gave some weight to the opinion of Ms. Alajajian, stating that he
agreed with her mental assessment because it was supported by the record, but that
he thought her physical assessment went beyond what the record supported. [Dkt.
8-3 at 74 (R. 108).] The ALJ determined that the Plaintiff’s treatment notes
indicated that she was treated conservatively, with her course of care never
progressing beyond medication management, physical therapy, steroid injections,
leg elevation, compression hose, and weight loss for pain control. Moreover, the
Plaintiff did not undergo surgical intervention and her most recent treatment notes

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suggested that her treatment was limited to rehabilitation exercises to promote
weight loss and medication for pain control. Perhaps most tellingly, the ALJ
included some of Ms. Alajajian’s recommendations in his RFC, insofar as he allowed
for leg elevation throughout the workday to address the Plaintiff’s complaints of
lower extremity swelling and pain. Furthermore, certain limitations that were
assessed by Ms. Alajajian do not appear credible. For example, Ms. Alajajian opined
that the Plaintiff could walk only half a block and stand or walk for ten minutes at
a time. [Dkt. 8-13 at 61 (R. 767).] As explained above, these limitations do not
appear consistent with the daily activities that the Plaintiff reported to Ms.
Alajajian.
Although the ALJ did not explicitly discuss each of the factors contemplated
in SSR 06-03p and § 404.1527, the ALJ did discuss the nature of Ms. Alajajian’s
treating relationship and the consistency of her opinion with the other record
evidence. The ALJ, therefore, reasonably considered and evaluated the opinion of
Physician Assistant Alajajian by citing inconsistencies between the opinion and
record evidence.
C. Leg Elevation 7
The Plaintiff argues that the ALJ’s RFC assessment was improper because it
noted that she would need to elevate one or both legs up to 8 to 12 inches
throughout the workday. [Dkt. 8-3 at 70 (R. 104).] Plaintiff contends that this

Imbedded within the Plaintiff’s second argument regarding the weighing of Ms. Alajajian’s medical
opinion is a separate argument that the ALJ improperly assigned the height at which the Plaintiff
needs to elevate her legs. That argument warrants discussion and will be evaluated separately.
7

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height limitation for leg elevation was arbitrarily assigned, without considering the
Plaintiff’s testimony or the medical evidence. [Dkt. 14 at 17.] The Commissioner
responds by asserting that the ALJ did not “play doctor,” but instead clearly
explained that “the limitation regarding leg elevation stemmed from PA Alajajian’s
recommendation that Plaintiff elevate her legs.” [Dkt. 18 at 14.]
The ALJ, in outlining his RFC assessment, explained that “the residual
functional capacity addresses the claimant’s complaints of lower extremity
swelling/pain and the need to elevate her legs by allowing for elevating one or both
of the lower extremities 8 to 12 inches throughout the workday.” [Dkt. 8-3 at 75 (R.
109).] There is no evidence from any source, medical or layperson, that supports
limiting the Plaintiff to elevating her legs only up to 12 inches. At the hearing,
Plaintiff testified that “[i]f I elevate my legs I have to put them -- elevate them
above my waist, and I have to do it like four hours in a day to keep them from
swelling.” [Dkt. 8-2 at 20 (R. 19).] Moreover, although the ALJ claims that Ms.
Alajajian’s opinion supported his decision, a review of the treatment record reveals
that she never offered an opinion regarding the height at which Plaintiff would need
to elevate her legs, noting instead that she recommended “leg elevation.” [Dkt. 8-15
at 26 (R. 825).] In fact, no medical source provided an opinion as to the height
Plaintiff would need to elevate her legs.
In this case, the only reference to a leg elevation height of 8 to 12 inches
comes from the vocational expert (“VE”). The VE was asked during the hearing how
the Plaintiff’s testimony that she needed to elevate her legs above her waist would

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affect employment, and she testified that it “would eliminate work at the
competitive level. There would be no opportunity to elevate an extremity at above
waist level.” [Dkt. 8-2 at 34 (R. 33).] In a follow-up question, the ALJ asked
whether “there [would be] any allowance for elevation of the legs?” [Dkt. 8-2 at 35
(R. 34).] The VE testified, “Yes. Typically at the sedentary level a person would be
able to elevate about eight to 12 inches and still be able to be on task and productive
at the workstation.” [Dkt. 8-2 at 35 (R. 34).] In a follow-up question, the ALJ
confirmed that the three sedentary jobs the VE indicated the Plaintiff could perform
(assembler, inspector, and sorter) also allowed for the precise leg elevation
limitation of 8 to 12 inches. [Dkt. 8-2 at 35 (R. 34).]
At no point does the ALJ articulate why he does not credit the Plaintiff’s
testimony that she needed to elevate her legs above her waist or why he discounted
Ms. Alajajian’s medical assessment elsewhere but credited her recommendation for
leg elevation. Because the only record evidence that lists a height at which the
Plaintiff must elevate her legs comes from the Plaintiff’s testimony, the ALJ was
required to assess the credibility of the Plaintiff’s testimony. In assessing a
claimant’s credibility, an ALJ must explain which of a claimant’s symptoms are not
credible and the extent to which they are not credible. Martinez v. Astrue, 630 F.3d
693, 696 (7th Cir. 2011). In Martinez, the Seventh Circuit reversed an ALJ’s
adverse credibility finding where there was “no explanation of which of [the
claimant’s] statements are not entirely credible or how credible or noncredible any
of them are,” rendering the ALJ’s finding “suspended over air.” Id at 696-97.

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In the portion of his decision discussing leg elevation, the ALJ does not even
mention the Plaintiff’s testimony regarding the need to elevate her legs above waist
level; at other parts of his decision, however, he notes that the Plaintiff’s subjective
complaints are not supported by the evidence in the record because there is a lack of
corroborating objective medical evidence. No explanation is provided as to why or
the extent to which the Plaintiff’s testimony about leg elevation is not credible, an
undertaking which is required in this Circuit. Instead, the Court is left to guess the
extent to which the Plaintiff’s testimony is not credible. As noted above, although an
ALJ is not required “to address in writing every piece of evidence or testimony
presented, he was required to provide ‘an accurate and logical bridge’ between the
evidence and his conclusions.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013)
(citing Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008)). It is impossible, at this
time, for the Court to assess whether the ALJ properly determined the Plaintiff’s
credibility, because there is no bridge between the evidence in the record and the
ALJ’s conclusion.
Thus, the ALJ’s assessment that the Plaintiff can elevate her legs to a height
of 8 to 12 inches is supported by neither the medical nor non-medical evidence in
the record and is not adequately explained in the ALJ’s opinion. Several courts in
the Seventh Circuit have remanded cases in which the ALJ arbitrarily assigned a
height for leg elevation that was not based on medical records or testimony, and
was not supported by substantial evidence. Chase v. Astrue, 458 F. App’x 553 (7th
Cir. 2012); Ellis v. Astrue, No. 2:09 CV 145, 2010 WL 3782265 (N.D. Ind. Sept. 20,

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2010); Ellis v. Astrue, No. 2:09 CV 145, 2011 WL 690218 (N.D. Ind. Feb. 16, 2011);
McKinnie v. Astrue, No. 09 C 0614, 2010 WL 1257776 (N.D. Ill. Mar. 26, 2010);
Voight v. Astrue, No. 10 C 7847, 2011 WL 6156841 (N.D. Ill. Dec. 12, 2011); Tina T.
v. Berryhill, No. 17 C 50282, 2019 WL 354978 (N.D. Ill. Jan. 29, 2019); Sherry P. v.
Berryhill, No. 17 CV 50372, 2019 WL 1584560 (N.D. Ill. Apr. 12, 2019).
The determination of the height at which the Plaintiff must elevate her legs
to experience pain relief is critical to analyzing whether Plaintiff may retain gainful
employment, because if the ALJ credits the Plaintiff’s testimony that she needs to
elevate her legs at waist level, the VE concluded that she would be precluded from
any employment opportunities. On remand, the ALJ should both evaluate the
medical evidence and assess the credibility of the Plaintiff’s testimony regarding leg
elevation height and, if he finds that Plaintiff’s leg elevation limitation is not
supported by the record, he must explain how he arrived at that conclusion.

V. CONCLUSION
For the reasons detailed herein, the Court REVERSES the ALJ’s decision
denying Plaintiff benefits and REMANDS this matter for further proceedings
pursuant to sentence four of 42 U.S.C. § 405(g) as detailed above. Final judgment
will issue accordingly.
So ORDERED.
Date: 6/26/2019

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Distribution:
All ECF-registered counsel of record.

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