IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

CHRISTOPHER O. WALLACE, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) No. 12 C 222 

 ) 

MICHAEL J. ASTRUE,1 ) Magistrate Judge Finnegan 

Commissioner of Social Security, ) 

 ) 

 Defendant. ) 

 ) 

 

 MEMORANDUM OPINION AND ORDER 

 Plaintiff Christopher O. Wallace brings this action under 42 U.S.C. § 405(g), 

seeking to overturn the final decision of the Commissioner of Social Security 

(“Commissioner”) denying his applications for Disability Insurance Benefits (“DIB”) and 

Supplemental Security Income (“SSI”) under Titles II and XVI, respectively, of the Social 

Security Act. The parties consented to the jurisdiction of the United States Magistrate 

Judge pursuant to 28 U.S.C. § 636(c). Plaintiff subsequently filed a motion seeking 

reversal of the Administrative Law Judge’s decision, and the Commissioner filed a brief 

opposing the motion. After careful review of the parties’ briefs and the record, the Court 

now grants Plaintiff’s motion and remands the matter for further proceedings. 

PROCEDURAL HISTORY

 Plaintiff applied for DIB and SSI on April 9, 2009, alleging that he became 

disabled beginning on April 4, 2006 due to arthritis, asthma, tendonitis, hypertension, 

and depression. (R. 19, 101, 108). The Social Security Administration denied the 

 1

 On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of 

Social Security, and is automatically substituted as Defendant in this case pursuant to Federal 

Rule of Civil Procedure 25(d)(1). 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 1 of 31 PageID #:1159
2 

applications initially on October 5, 2009, and again on reconsideration on April 22, 2010. 

(R. 19). Pursuant to Plaintiff’s timely request, Administrative Law Judge (“ALJ”) Jose 

Anglada held a hearing on April 11, 2011, where he heard testimony from Plaintiff, 

represented by counsel, and a vocational expert. (R. 9, 56-92). On April 28, 2011, the 

ALJ found that Plaintiff, then 50 years old, is not disabled because he is capable of 

performing jobs that exist in significant numbers in the Chicago Metropolitan Area 

economy. (R. 30-31). The Appeals Council denied Plaintiff’s request for review on 

November 25, 2011. (R. 1-3). 

 Plaintiff now seeks judicial review of the ALJ’s decision, which stands as the final 

decision of the Commissioner. In his motion, Plaintiff advances two main grounds for 

reversal. First, he argues that the ALJ failed to identify his arthritis as a severe 

impairment at Step 2 or assess whether his arthritis meets or equals a listing at Step 3 

of the analysis. Next, he contends that the ALJ erred in determining his Residual 

Functional Capacity by not explaining the weight he gave to the opinions of various 

state agency physicians as it pertains to his limitations arising from his arthritis and 

asthma. 

FACTUAL BACKGROUND

 Plaintiff was born on March 2, 1961, and was 45 years old on the alleged 

disability onset date of April 4, 2006. (R. 19, 30). He is able to communicate in English. 

(R. 30). He dropped out of high school in the 11th grade and has not completed a GED. 

(R. 61). His past relevant work experience is factory work. From March 1999 to April 

2006, he worked in the automotive industry doing shipping, receiving, and loading and 

unloading of trucks. (R. 29, 62, 360, 362). Prior to that, from May 1990 to February 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 2 of 31 PageID #:1160
3 

1998, he worked in the chemical industry lifting heavy bags of chemicals and pouring 

them into mixing bowls and barrels. (R. 360-361). 

A. Plaintiff’s Medical History 

The record in this matter shows a history of complaints of asthma, arthritis and 

tendonitis beginning in 2004 and continuing into early 2011.

 1. 2004 

 The earliest documentation shows that Plaintiff presented to the Covenant 

Healthcare emergency room in Saginaw, Michigan twice in May 2004 complaining of 

shortness of breath on the first occasion and right shoulder pain on the second 

occasion. (R. 335, 336). He was given nebulizer treatment for the asthma and five-day 

prescriptions of Solu-Medrol and Prednisone. (R. 335). The doctor noted that Plaintiff 

“smokes half pack a day” and that the shortness of breath “started two days ago in a 

smoky room.” (Id.). For the shoulder pain, he was prescribed Vicodin, Motrin, and 

exercises. (R. 336). The doctor’s notes indicate that Plaintiff has a history of asthma 

and tendonitis of the right shoulder, for which he has been taking Vicodin. (Id.). 

 2. 2005 

 On two occasions in March 2005, Plaintiff presented at the Saint Mary’s Hospital 

ER in Saginaw complaining of difficulty breathing. (R. 286, 333-34). On March 21, a 

chest x-ray was taken, which was normal. (R. 286). When he returned to the ER on 

March 28, he received intravenous Solu-Medrol and two Albuterol nebulizer treatments 

and was prescribed Albuterol inhaler refills and five days of steroids. (R. 334). Plaintiff 

“improved dramatically” in the ER and was discharged. (Id.). 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 3 of 31 PageID #:1161
4 

 On September 1, 2005, Plaintiff tested positive for cocaine and opiates. (R. 269). 

Dr. Enam Hanna of Janes Street Academic Community Health Center addressed the 

cocaine abuse with him on September 12, 2005, when Plaintiff presented complaining 

of left ankle edema, which Dr. Hanna believed was a possible sprain, and shoulder pain 

for which it was noted he sees a Dr. Chamberlin. (R. 245). Plaintiff saw Dr. Hanna 

again on September 22, 2005, complaining of left ankle pain and bilateral shoulder pain, 

greater on the left. (R. 296). X-rays showed “some very minimal degenerative changes 

particularly in the anterior ossify as well as some syndesmotic old calcification in the 

distal fibular shaft.” (Id.). Dr. Hanna diagnosed rotator cuff tendonitis and bursitis, for 

which he recommended strengthening and range of motion exercises; left ankle arthritis 

with acute exacerbation, for which he recommended an ankle brace and physical 

therapy; and hallux valgus (bunions) for which he recommended wider shoes. (Id.). In 

a U.S. Department of Labor Certification of Health Care Provider form dated November 

7, 2005, Dr. Hanna noted that Plaintiff “may work intermittently” but “will need to be off 

for Dr. visits, specialist appointments, [and] physical therapy.” (R. 293). Dr. Hanna also 

noted that Plaintiff was referred to, but did not see, a physical therapist and 

rheumatologist. (Id.). 

 3. 2006 

 In January 2006, Plaintiff complained of difficulty breathing, but had a negative 

chest x-ray. (R. 268). In February 2006, a doctor from Janes Street Health Center 

found his breathing to be “fairly well controlled” but noted that he needs Singulair and is 

“still smoking,” although down to half a pack per day. (R. 236). For his asthma, the 

doctor recommended continuing Albuterol and Singular, and low doses of Florent and 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 4 of 31 PageID #:1162
5 

Atrovent, as well as tobacco cessation, and advised Vicodin for his osteoarthritis and 

shoulder bursitis. (Id.). Also in February 2006, MRIs of both shoulders showed no 

rotator cuff tear, but indicated extensive peri-tendinosis in the right shoulder and severe 

peri-tendinosis in the left shoulder, as well as rotator cuff impingement due to arthritis in 

both shoulders. (R. 282-83). Plaintiff requested monthly medication refills from Dr. 

Hanna from February through May 2006, and on June 2, 2006 he had a follow-up visit 

during which he complained of asthma and shoulder pain. (R. 228, 229-34). 

 In August 2006, bilateral hip x-rays showed some “early degenerative changes in 

both hips, with fairly well maintained joint spaces bilaterally;” “some areas of sclerosis 

and lucency in both femoral heads, suggesting avascular necrosis,” and “a couple 

calcifications adjacent to the femoral neck on the left.” (R. 281). In October 2006, 

Plaintiff complained to Dr. Hanna of acute lower back pain. (R. 215-16). 

 4. 2007 

 Plaintiff continued to complain of pain in his shoulders and hips during visits to 

Dr. Hanna in January and June 2007. (R. 205, 211). In June 2007, Dr. Carter 

administered corticosteroid injections to both shoulders for his chronic tendonitis. (R. 

203). Plaintiff received Vicodin refills from Dr. Hanna for more than two years, through 

the end of 2008 when Plaintiff moved out of state. (R. 205-16). Plaintiff also 

complained of respiratory difficulties during office visits in September (“tight chested at 

night” despite wearing a mask for his roofing job) and November 2007 (“wheezing” 

nightly), for which Dr. Hanna continued to prescribe Albuterol and Advair. (R. 198, 201). 

Dr. Hanna counseled Plaintiff on smoking cessation in April and September 2007, and 

noted in November 2007 that he smokes half a pack per day. (R. 198, 201, 208). 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 5 of 31 PageID #:1163
6 

 5. 2008 

 In 2008, Plaintiff again saw Dr. Hanna for shoulder pain in February and for 

shoulder and hip pain and asthma in September and October. (R. 177, 180, 191). 

Plaintiff’s prescriptions were refilled for Vicodin, Singulair, and Albuterol; QVAR was 

added to treat his asthma, and he was again counseled on smoking cessation. (R. 177, 

180). He returned to Dr. Hanna in late November 2008 for exacerbation of his asthma 

and for left side pain after a bicycle fall. (R. 174). At that time, Plaintiff was treating his 

asthma with Albuterol and Prednisone and was not taking QVAR; Dr. Hanna advised 

continued used of Albuterol and Prednisone, provided samples of QVAR, and reiterated 

the need to stop smoking. (Id.). He advised Ibuprofen for the pain from the fall. (Id.). 

 Plaintiff also presented to the Covenant ER on three occasions in late 2008. On 

October 28 and November 13, he went to the ER complaining of shortness of breath. 

(R. 314, 318). He received IV Solu-Medrol on both occasions. (R. 314, 318). On the 

October visit, he was admitted overnight; on the November visit he had a negative chest 

x-ray, “markedly improved” after a coughing spell, and was discharged the same day. 

(R. 314, 318). On December 26, he complained of acute asthma and chest pain. (R. 

309). Dr. Hanna referred him for an exercise stress test, which showed a normal 

baseline EKG and “[a]dequate exercise capacity and effort” and no cardiac symptoms. 

(R. 279). A chest x-ray showed “no evidence of focal consolidation, edema, 

pneumothorax, or pleural effusion,” but lateral oblique views showed “an unusual 

configuration of the cardiac silhouette” which is “most probably artifactual” but should be 

followed up by repeat chest x-ray or CAT scan. (R. 309-10). Plaintiff was discharged 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 6 of 31 PageID #:1164
7 

as stable with prescriptions for Albuterol and Advair, and Dr. Hanna “strongly 

counseled” him to quit smoking, which he agreed to do. (Id.). 

 6. 2009 

 In early 2009, Plaintiff relocated from Michigan to the Chicago area. (R. 63-64). 

Plaintiff presented to Provident Hospital twice on March 13, 2009 complaining of asthma 

exacerbation, for which he was admitted for two days, continued on his medication 

regimen and counseled to avoid the tobacco and illicit substances that trigger his 

asthma. (R. 506-10). Plaintiff missed his April 14, 2009 appointment at Provident, but 

presented to the ER at Roseland Community Hospital on April 6, 16, and 21, 

complaining of asthma exacerbation, for which he was given various combinations of 

Xopenex, Solu-Medrol, and Prednisone, and counseled to stop smoking. (R. 451-474, 

494, 515). He was also seen for his asthma at Provident Hospital on April 17, where he 

was given nebulizer treatment and discharged in stable condition the following morning. 

(R. 494-503). At that time, Plaintiff indicated he was smoking 2-3 cigarettes per day. 

(R. 494). 

 Plaintiff was seen for a follow-up visit at Provident on May 1, 2009, where it was 

noted that his asthma was “improving” and he was referred to pulmonology. (R. 513-

14). He presented at the Provident Hospital ER on May 11, 2009 complaining primarily 

of asthma, but also of pain in his fingers radiating up to his shoulder and neck. (R. 482). 

He was discharged and instructed to continue his medication regimen and to “stop 

smoking.” (R. 485). At a follow-up visit on June 12, 2009, he was given a Z-pack for 

acute bronchitis and put on Atrovent and Combivent for his asthma. (R. 512). For his 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 7 of 31 PageID #:1165
8 

shoulder pain, he was scheduled for a corticosteroid injection and was switched from 

Albuprofen to Naproxen and given Tylenol #3. (Id.). 

 On July 30, 2009, Dr. Myrtle Mason completed a Psychiatric Evaluation for the 

Illinois Bureau of Disability Determination Services (“DDS”) upon referral for depression. 

(R. 520-524). Dr. Mason met with Plaintiff for 30 minutes and diagnosed him with 

depressive disorder due to his asthma and arthritis, and substance use disorder based 

on alcohol dependence and a history of cocaine and marijuana abuse. (R. 524). 

 Also on July 30, 2009, Dr. Sujatha Neerukonda completed an Internal Medicine 

Consultative Examination for the DDC. (R. 528-531). Dr. Neerukonda reviewed 

Plaintiff’s records and conducted a 30-minute examination. (R. 528). Her notes identify 

Plaintiff’s complaints as asthma (for the previous 18 years), COPD2

 (2 years), 

hypertension (4 years), bilateral shoulder pain worse on the right (2 years), ankle pain 

and swelling (1 year), low back pain (2 years), and depression (7 months). (R. 529). 

She identified Plaintiff’s various asthma and pain medications (Tylenol #3, Combivent, 

Singulair, Serevent, QVAR, Amitriptyline, Amlodipine, Naprosyn, Prednisone, Albuterol, 

Ibuprofen, and Proventil), his occasional alcohol use, denial of drug use, and smoking 

habit of 2-3 cigarettes per day. (Id.). She conducted a physical examination, observing 

that “[b]reath sounds are harsh and distant bilaterally” and “[n]o rhonchi or wheezes.” 

(R. 530). She also observed as follows: 

MUSCULOSKELETAL: Examination reveals no limitation of movement in 

cervical spine. Right shoulder flexion is limited to 0 to 120 degrees, 

extension limited to 0 to 20 degrees, abduction limited 0 to 130 degrees 

 2

 COPD, or chronic obstructive pulmonary disease, “is a progressive disease that 

makes it hard to breathe.” Among other symptoms, COPD can cause coughing, wheezing, 

shortness of breath, and chest tightness. “Cigarette smoking is the leading cause of COPD.” 

U.S. Department of Health & Human Services, National Heart, Lung, and Blood Institute, 

http://www.nhlbi.nih.gov/health/health-topics/topics/copd/ (last viewed June 11, 2013). 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 8 of 31 PageID #:1166
9 

and rotation within normal limits. Left shoulder flexion is limited to 0 to 130 

degrees, abduction limited to 0 to 140 degrees, extension limited to 0 to 

30 degrees and internal and external rotation no limitation. No limitation in 

the elbows and wrists. Lumbar flexion is limited 0 to 60 degrees, 

extension limited 0 to 20 degrees and right and left lateral bending limited 

0 to 20 degrees. Tenderness at L3 and L4. Right hip flexion limited 0 to 

80 degrees, extension limited 0 to 20 degrees, abduction limited 0 to 20 

degrees, adduction no limitation, internal rotation limited 0 to 20 degrees 

and external rotation limited 0 to 20 degrees. Left hip flexion is 0 to 90 

degrees, and everything [else] is no limitation. No limitation in the knees 

and right ankle. Left ankle is swollen and tender both malleolus. 

Dorsiflexion limited 0 to 10 degrees and plantar flexion limited 0 to 15 

degrees. Gait, limp on the left foot for 50 feet an assistive device. The 

claimant was unable to do toe walk. Heel walk was severely limited. 

Tandem gait was mildly limited. Squat and getting on and off the 

examination table no limitation. Straight leg raise is negative. The 

claimant is right hand dominant. Bilateral fist is 100% and grip is 5/5. 

(R. 530). Her clinical impression identified the following conditions: uncontrolled 

hypertension, bronchial asthma, COPD, bilateral shoulder arthralgia, right hip 

degenerative joint disease, left ankle arthralgia, depression, and lumbar arthralgia. (R. 

531). X-rays were taken that same day of Plaintiff’s right hip, lumbar spine, and left 

ankle. The hip radiology report found “mild degenerative narrowing” of the right hip joint 

and “possible osteonecrosis” of the right femoral head (R. 525). The lumbar radiology 

report found “[a]dvanced degenerative disc changes” at L4-L5, mild to moderate 

degenerative disc changes at L3-L4, and moderately advanced degenerative joint 

changes at L4-L5 and L5-S1. (R. 526). The left ankle x-ray revealed “probably mild 

narrowing of the anterior tibiotalar joint.” (R. 527). 

 On July 30, 2009, the same day he was examined by Dr. Neerukonda, Plaintiff 

was also examined by Dr. Robert Noven. (R. 532). In an Addendum to the Internal 

Medicine Consultative Examination, Dr. Noven explained that he was asked to examine 

Plaintiff when he “had an exacerbation of symptoms and developed acute shortness of 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 9 of 31 PageID #:1167
10 

breath” after completing his examination with Dr. Neerukonda. (Id.). Dr. Noven stated 

that Plaintiff’s examination “revealed diffuse wheezing and diminished breath sounds” 

and “heart sounds were regular and rapid.” (Id.). Dr. Noven advised him not to proceed 

with his pulmonary function test due to the exacerbation of symptoms and to consult his 

primary care doctor. (Id.). Within the next several days, Plaintiff went to three different 

ERs on four separate occasions for asthma symptoms, where he was given Albuterol 

and Prednisone and was discharged. (R. 533-72). A chest x-ray on August 1, 2009 

revealed a normal-sized heart, clear lungs, no excess fluid, and no active 

cardiopulmonary pathology. (R. 573-74). Another chest x-ray on August 22, 2009 also 

showed an “[e]ssentially normal chest” with normal heart size and tissues, clear lungs, 

and no infiltrates. (R. 623-24). 

 On August 20, 2009, Dr. Francis Vincent completed an initial Request for Medical 

Advice for the DDS. (R. 575-577). Based on Plaintiff’s allegations of asthma, Dr. 

Vincent advised a review for asthma equal to Listing 3.03B with an onset date of April 

30, 2009. (R. 575). On September 3, 2009, consulting pulmonologist Dr. James 

McKenna prepared a Case Analysis. (R. 625). Based on his review of the file, Dr. 

McKenna concluded that plaintiff “has known asthma” and has been treated with 

medication, but “has not had regular follow-up visits and was not taking asthma 

‘controllers’” prior to seeking care on March 16, 2009. Dr. McKenna further noted that 

when he was admitted for asthma from March 13-15, 2009, Plaintiff tested positive for 

cocaine, “a potent bronchioconstrictor which commonly exacerbates asthma” and which 

“is contrary to any know asthma management plan.” (Id.). Thus, while a “hospital 

admission for an asthma exacerbation ordinarily would count for two ‘severe attacks,’” 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 10 of 31 PageID #:1168
11 

Dr. McKenna questioned whether this admission qualifies given the cocaine use. (Id.). 

Dr. McKenna found that even if Plaintiff’s April 16, 2009 ER visit and April 17-20, 2009 

hospital stay are construed as 3 severe attacks, this still falls short of the 6 severe 

attacks in a 12-month period required to satisfy Listing 3.03B. (Id.). Accordingly, Dr. 

McKenna concluded that “the DDS’ assessment of an impairment of Listing 3.03B 

severity is not supported by the medical evidence in file,” however Plaintiff “should avoid 

even moderate exposure to extreme cold or to respiratory irritants” given his persistent 

asthma. (Id.). 

 On September 15, 2009, internist Dr. Joseph Franger prepared a Case Analysis 

assessing Plaintiff’s joint pain. (R. 626). He concluded that the medical records support 

a “severe” impairment “involving multiple joints,” and that Plaintiff’s statements 

concerning his joint pain are credible and supported by the records. (Id.). In particular, 

he noted that Plaintiff’s hip necrosis “is at further risk because of corticosteroid use for 

his asthma” and that the “natural history of this condition is one of progression.” (Id.). 

He found that the records support the RFC of May 20, 2008, but with further limitations. 

(Id.). Specifically, he concluded that Plaintiff can stand/walk a maximum of 2 hours per 

day, must never climb ladders or scaffolding, and must avoid even moderate exposure 

to extreme cold due to asthma. (R. 627-28). 

 On September 23, 2009, Dr. J.V. Rizzo prepared a Case Analysis concerning 

Plaintiff’s allegation of depression. (R. 629). Dr. Rizzo concluded that Plaintiff’s 

statements regarding his depression “are consistent with evidence in file and credible,” 

and that his mental impairments are not severe. (Id.). On October 2, 2009, Dr. Kirk 

Boyenga prepared a Psychiatric Review Technique that found Plaintiff “partially 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 11 of 31 PageID #:1169
12 

credible” and concluded that Plaintiff’s mental impairments are not severe. (R. 630-

643). 

 On October 2, 2009, Dr. Richard Bilinsky completed a Physical Residual 

Functional Capacity Assessment for the DDS, which included a review of Dr. 

Neerukonda’s assessment. (R. 644-51). Dr. Bilinsky stated a primary diagnosis of 

COPD, a secondary diagnosis of hypertension, and other alleged impairments of 

asthma and arthritis. (R. 644). He concluded that Plaintiff can occasionally lift or carry 

20 pounds, frequently lift or carry 10 pounds, stand and/or walk at least 2 hours in an 8-

hour work day, sit about 6 hours in an 8-hour work day, and has no limitations on his 

ability to push or pull. (R. 645). He found that Plaintiff is occasionally limited in 

stooping, crouching, and climbing ladders, ropes and scaffolds due to ankle, back, and 

shoulder pain. (R. 646). Finally, he found that Plaintiff is limited in his ability to reach in 

all directions, and should avoid concentrated exposure to extreme cold and fumes, 

odors, dusts, gases, and poor ventilation due to COPD. (R. 647-48). Dr. Bilinsky found 

Plaintiff’s statements concerning his COPD “partially credible in light of the overall 

evidence,” but concluded that “the extent of the limitations described by [Plaintiff] in 

terms of his breathing problems, exceeds that supported by the objective medical 

evidence,” namely Dr. Neerukonda’s physical examination. (R. 651). 

 Three days later, on October 5, 2009, Plaintiff presented at MetroSouth Medical 

Center for chest pain, where he was found to be “[c]linically drunk” but “stable from a 

cardiology standpoint and was counseled on smoking cessation. (R. 721). Shortly 

thereafter, on November 2, 2009, he had a follow-up visit where he sought help for 

alcoholism. (R. 885-87). The doctor’s notes indicate that he had begun a detox 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 12 of 31 PageID #:1170
13 

program, but it was “not going well” so he “checked [him]self out,” and his drinking is 

“out of control.” (R. 887). 

 Upon complaining of chest pain and asthma exacerbation on December 21, 

2009, a chest x-ray showed normal heart size and vascularity and clear lungs, and a 

chest CT angiography showed some evidence of pneumonia. (R. 821, 843, 845). 

Plaintiff received nebulizer treatment and IV Solu-Medrol. (R. 853). 

 7. 2010 

 Plaintiff continued to experience similar symptoms and present to the ER 

throughout 2010. On January 15 and 30, 2010, he presented to the MetroSouth ER 

with chest pain for which he received Albuterol and Prednisone. (R. 1015-16, 1040-46). 

He had follow-up visits on January 20 and March 16, 2010, where he sought refills of 

his asthma medications and complained of shoulder and hip pain (R. 880-83), and on 

June 18 and August 20, 2010, where his condition was mostly unchanged. (R. 909-12). 

But on October 22, 2010 he complained that his arthritis pain had worsened and he 

needed more inhaler puffs than he did previously. (R. 907). He went to the MetroSouth 

ER with asthma symptoms on November 24, 2010, where he was given Albuterol and 

Prednisone (R. 985-86), and on December 28, 2010, where he was not administered 

any medications (R. 971-77). 

 8. 2011 

 Plaintiff’s symptoms continued in early 2011. A chest x-ray on January 7, 2011 

was stable and unchanged from a prior x-ray taken on January 15, 2010. (R. 964). On 

January 16 and 21, 2011, Plaintiff presented to the MetroSouth ER with asthma 

exacerbation, where he received Albuterol nebulizer treatment and Solu-Medrol and 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 13 of 31 PageID #:1171
14 

was discharged. (R. 917-18, 933-34). It was noted that he uses alcohol daily and is 

currently a smoker. (R. 917, 933). On January 21, the same day he was at the ER, he 

also had a follow-up visit at the Near South Health Clinic, where his asthma was 

reported as “stable” and his “breathing good,” and he was prescribed a cane and 

advised to lose weight to manage his chronic arthritis pain. (R. 906, 1049). 

B. Plaintiff’s Testimony 

 At the hearing before the ALJ on April 11, 2011, Plaintiff testified that he suffers 

from asthma, arthritis, and tendonitis. (R. 62, 66). He was hospitalized due to asthma 

about three times in 2010 after experiencing tightness in his chest. (R. 66, 67). He has 

a breathing machine that he uses at home when he feels an asthma attack coming on, 

but it does not always work. (R. 66-67). His asthma medication also does not always 

work, so he goes to the hospital for “a stronger dose.” (R. 67). His attacks typically last 

30 minutes and the medication and breathing treatment leaves him “shaky” and “jittery” 

for about two hours afterwards. (R. 84). He has treated his arthritis with heating pads 

at home and cortisone shots from his doctor. (R. 71). He takes Vicodin and Ibuprofen 

daily for pain, which helps “[o]ff and on” but makes him “groggy.” (Id.). He uses a cane 

that his doctor prescribed to him for his hip problems. (R. 73). His doctor has not 

recommended hip replacement surgery, but advises continued treatment with heat and 

pain medication. (R. 82, 85). Plaintiff also dealt with alcohol abuse from 2007 to 2010 

and was in an alcohol rehabilitation program in August 2010. (R. 64-65). 

 In terms of his recent work history, Plaintiff testified that he dropped out of high 

school in the 11th grade and does not have a GED. (R. 60-61). At the time of the 

hearing, he was not working and his sole income was public assistance. (R. 61). He 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 14 of 31 PageID #:1172
15 

previously did factory work for seven years. (R. 62). For the last three of those years, 

he had arthritis and tendonitis, and sought lighter duty work, but “nobody would hire 

[him]” due to his arthritis and asthma, including his sensitivity to chemicals. (R. 62, 69). 

He stopped working entirely in April 2006 because he “couldn’t do the lifting” or the 

pushing and pulling, and “was missing days at work being in the hospital back and forth 

[and] in the ER” due to arthritis, tendonitis, and asthma. (R. 62, 68). 

 In terms of his functional capacity, Plaintiff testified that he has difficulty standing 

and sitting for long periods of time due to arthritis in his hips and lower back. (R. 70). 

He can walk about a block with or without his cane, but it causes hip pain. (R. 77). He 

can stand for about 10 to 15 minutes and can sit for about 20 minutes before his hips 

and lower back hurt. (Id.). During a typical workday, he would need to alternate sitting 

and standing about 10 times, but could only stand for about 30 to 45 minutes total in an 

8-hour workday. (R. 83, 84). 

 Plaintiff lives with his fiancée, who cooks breakfast for him and helps him bathe 

and dress. (R. 64, 75, 78). He prepares his own lunch in the microwave, but otherwise 

cannot stand long enough to cook for himself. (R. 76). He sometimes has trouble lifting 

a gallon of milk and rarely performs any household chores, other than occasionally 

washing a few dishes or mopping the floor if he’s having a good day. (R. 78-79). He 

watches TV and movies at home and sometimes reads the newspaper, but does not go 

to the movie theatre because the seats are uncomfortable. (R. 80-81). He has difficulty 

sleeping due to pain. (R. 81-82). Plaintiff testified that he has not had a driver’s license 

since it was suspended 22 years previously. (R. 60). 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 15 of 31 PageID #:1173
16 

C. Letter from Plaintiff’s Girlfriend

 The ALJ noted in his decision that he also took into consideration a letter from 

Plaintiff’s girlfriend, Sharon Robinson. (R. 25, citing R. 443). In the letter, Ms. Robinson 

stated that she has lived with Plaintiff for three years, that he “complains of pain all the 

time,” and that they go to the hospital often because he has shortness of breath and his 

breathing machine doesn’t work. (R. 443). She also stated that she helps him dress 

most days due to the pain in his shoulders, and that he cannot stand for long periods of 

time due to shortness of breath. (Id.). 

D. Vocational Expert’s Testimony

 Leann Kerr testified at the hearing as a vocational expert (“VE”). (R. 85). The 

VE identified Plaintiff’s past relevant work as a loader/packer, which was unskilled light 

work but performed by Plaintiff at the heavy level, and as a shipping/receiving clerk, 

which was medium work performed by Plaintiff at the heavy level. (R. 64-65). 

 The ALJ then described a hypothetical individual of Plaintiff’s age, education, and 

work experience who is able to lift and carry 20 pounds occasionally and 10 pounds 

frequently; can stand and/or walk about four hours and sit about six hours during an 

eight-hour workday with normal rest periods; cannot work at heights, climb ladders, or 

frequently negotiate stairs; can only occasionally stoop or crouch; should avoid 

concentrated exposure to extreme temperatures, fumes, odors, gases, or poorly 

ventilated areas; should avoid working or moving dangerous machinery; and needs a 

cane to walk more than one block. (R. 87). The VE testified that such an individual 

would be precluded from performing all of Plaintiff’s past work, but could perform the 

“full range of sedentary [work] but not quite the full range of light [work] due to the 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 16 of 31 PageID #:1174
17 

amount of time on feet.” (R. 87-88). The VE further testified that light, unskilled jobs 

that would allow for intermittent standing and sitting, with no more than four hours on 

the feet, include office helper (2,100 positions), information clerk (2,300), and cashier 

(2,500). (R. 88-89). However, the VE testified that the individual would be unable to 

perform any of these jobs if he was limited to sedentary work. (R. 89). 

 The ALJ then revised the hypothetical to assume the same factors and limitations 

reflected in the initial hypothetical, but adding the limitation that the individual was off 

task five percent of the time during an 8-hour workday. (R. 89). The VE testified that 

this “would be allowable,” but that the individual would be terminated if he was off task 

more than 15 percent of the workday or absent more than one day per month. (Id.). 

 Plaintiff’s attorney then revised the hypothetical to assume the same factors and 

limitations reflected in the initial hypothetical, but adding the limitation that the individual 

required a sit/stand option 10 times per day lasting for 10 minutes each, equating to 

“about 100 minutes off task.” (R. 90). The VE responded that it would preclude work if 

it took the individual off task, but would allow for work if the individual “could remain on 

task and functioning even through they’re changing positions.” (Id.). Finally, the VE 

testified that all competitive employment would be eliminated if the individual could only 

stand/walk for two hours per day and sit for two hours per day, constituting less than an 

8-hour workday in total. (R. 90-91). 

E. ALJ’s Decision

 In his written decision, the ALJ found Plaintiff not disabled under the relevant 

provisions of the Social Security Act. (R. 31). In applying the five-step sequential 

analysis required by 20 C.F.R. § 404.1520(a), the ALJ first determined that Plaintiff has 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 17 of 31 PageID #:1175
18 

not engaged in substantial gainful activity since the alleged onset date of April 4, 2006. 

(R. 21). At Step 2, he then determined that Plaintiff has the severe impairments of 

asthma, hypertension, and polysubstance and alcohol abuse. (Id.). However, at Step 

3, the ALJ determined that none of these impairments met or medically equaled any of 

the listed impairments identified in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 22-

23). Specifically, as to Plaintiff’s asthma under Listing 3.03, the ALJ found that 

Plaintiff’s asthma attacks “do[] not satisfy the listing requirement of prolonged 

symptomatic episodes lasting one or more days and requiring intensive treatment,” and 

further noted that “it is questionable as to whether [Plaintiff] was compliant with 

prescribed treatment and whether [he] was forthright with his treating physicians as to 

the status of his cigarette smoking and using, something [he] admitted exacerbated his 

symptoms.” (R. 22). As to Plaintiff’s hypertension under Listing 4.00(H), he found “little 

or no evidence regarding effects of hypertension” on Plaintiff, and cited evidence 

showing that Plaintiff’s hypertension “has been noted to be benign and well controlled 

with medication.” (Id.). As to his depression under Listing 12.04, the ALJ found under 

the Paragraph B criteria that Plaintiff has only moderate restriction of daily living 

activities, mild difficulties in social functioning, and no difficulties in maintaining 

concentration, persistence, or pace, and that he has experienced no episodes of 

decompensation of extended duration, nor has he satisfied the Paragraph C criteria 

showing a chronic affective disorder of two years or more. (R. 22-23). As to his alcohol 

and substance use under Listing 12.09, the ALJ found that the record shows that 

Plaintiff’s history of substance abuse did not elevate his impairments to the level of 

severity required by the listing for the reasons explained in his decision. (R. 23). 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 18 of 31 PageID #:1176
19 

 Proceeding to Step 4, the ALJ concluded that Plaintiff retains the residual 

functional capacity (“RFC”) to perform light work except that he “can lift 20 pounds 

occasionally and 10 pounds frequently; can be on his feet standing/walking about 4 

hours and sit about 6 hours in an 8 hour workday, with normal rest periods[;]...is unable 

to work at heights, climb ladders, or frequently negotiate stairs[;]...may only 

occasionally stoop or crouch[;]...should avoid concentrated exposure to extremes of 

temperatures, fumes, odors, dusts, gases, or poorly ventilated areas[;]...should avoid 

working around moving or dangerous machinery; and...needs a cane to ambulate more 

than one block.” (R. 24). Upon considering the evidence, the ALJ concluded that 

Plaintiff can perform a variety of activities of daily living. (R. 24-25). The ALJ noted that 

Plaintiff alleged an asthma onset date of April 4, 2006, but the medical records show he 

was not treated with asthma medications until 2009, and many chest x-rays were 

“largely normal.” (R. 25). The ALJ found it significant that Plaintiff was often noncompliant with treatment – missing appointments, failing to follow through with asthma 

education and pulmonary testing referrals, not taking medications as directed, 

continuing to smoke despite repeated instructions to stop (and knowing that it 

aggravated his asthma), taking cocaine on at least one occasion, and continuing to 

drink alcohol heavily. (R. 25-26). The ALJ noted that none of Plaintiff’s treating or 

examining physicians have “endorsed” his allegations of disability, emphasizing that his 

primary care doctor found his asthma to be “stable” and his “breathing good” in January 

2011. (R. 27, 28). The ALJ also discussed the various state agency consulting 

physician opinions, assigning great weight to certain portions of their opinions and 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 19 of 31 PageID #:1177
20 

moderate, limited, or no weight to other portions in light of the totality of the evidence. 

(R. 28-29). 

 In his credibility finding, the ALJ found that “the information provided by [Plaintiff] 

may not be entirely reliable” given inconsistencies between his statements and the 

record evidence. (R. 28). Among other inconsistencies, the ALJ found it significant that 

Plaintiff has a history of alcohol abuse and tobacco use which he misrepresented to 

medical providers, as well as instances where Plaintiff made opposite representations 

about his condition to his treating physicians compared to ER staff. (R. 27). For 

example, the ALJ referenced an instance where Plaintiff told MetroSouth staff that he 

was “currently” smoking, but told Near South clinic staff (three months prior) that “he 

was quitting or had quit smoking.” (R. 27, citing. R. 907, 917). The ALJ also noted that 

Plaintiff gave conflicting information about his education. (R. 28). 

 The ALJ then found that Plaintiff is unable to perform his past relevant work, but 

relying on the VE, concluded that there are other jobs that exist in sufficient numbers in 

the Chicago Metropolitan Area that Plaintiff can perform, given his age, education, work 

experience, and RFC. (R. 29-31). Accordingly, the ALJ found that Plaintiff was not 

disabled since his alleged disability onset date. (R. 31). 

DISCUSSION 

A. Disability Standard

 A claimant who can establish he is “disabled” as defined by the Social Security 

Act, and was insured for benefits when his disability arose, is entitled to Disability 

Insurance Benefits. 42 U.S.C. §§ 423(a)(1)(A), (E); see also Liskowitz v. Astrue, 559 

F.3d 736, 739-40 (7th Cir. 2009). In order to qualify for Supplemental Security Income, 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 20 of 31 PageID #:1178
21 

a claimant must establish that he is “disabled” and eligible for SSI benefits as defined by 

the Social Security Act. 42 U.S.C. §§ 416(i)(1), 1382(a)(1). “Disability” means an 

“inability to engage in any substantial gainful activity by reason of any medically 

determinable physical or mental impairment which can be expected . . . to last for a 

continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 

1382(a)(3)(A). An individual is under a disability if he is unable to do his previous work 

and cannot, considering his age, education, and work experience, engage in any gainful 

employment that exists in the national economy. Id. at § 423(d)(2)(A). 

 In order to determine whether a claimant is disabled, the ALJ conducts a 

standard five-step inquiry, set forth in 20 C.F.R. § 404.1520(a)(4), which requires the 

ALJ to consider in sequence: (1) whether the claimant is currently unemployed; (2) 

whether the claimant has a severe impairment; (3) whether the impairment meets or 

equals one of a list of specific impairments enumerated in the regulations; (4) whether 

the claimant can perform his past relevant work; and (5) whether the claimant is able to 

perform other work in the national economy. Zurawski v. Halter, 245 F.3d 881, 885 (7th 

Cir. 2001) (citations omitted). “An affirmative answer leads either to the next step, or, 

on Steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any 

point, other than Step 3, ends the inquiry and leads to a determination that a claimant is 

not disabled.” Id. (quoting Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985)); 

see also 20 C.F.R. § 404.1520(a)(4). 

B. Standard of Review 

Judicial review of the Commissioner’s final decision is authorized by Section 

405(g) of the Social Security Act. 42 U.S.C. § 405(g). A “court will reverse an ALJ’s 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 21 of 31 PageID #:1179
22 

denial of disability benefits only if the decision is not supported by substantial evidence 

or is based on an error of law.” Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009). 

Evidence is considered substantial “so long as it is ‘sufficient for a reasonable person to 

accept as adequate to support the decision.’” Ketelboeter v. Astrue, 550 F.3d 620, 624 

(7th Cir. 2008) (quoting Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003)). The 

reviewing court may not “displace the ALJ’s judgment by reconsidering facts or 

evidence, or by making independent credibility determinations.” Elder v. Astrue, 529 

F.3d 408, 413 (7th Cir. 2008). Even when there is adequate evidence in the record to 

support the decision, however, the findings will not be upheld if the ALJ does not “‘build 

an accurate and logical bridge from the evidence to the conclusion.’” Berger v. Astrue, 

516 F.3d 539, 544 (7th Cir. 2008) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 

2000)); see also 42 U.S.C. § 405(b)(1) (denial of benefits must contain a discussion of 

the evidence and a statement of the Commissioner’s reasons). 

C. Analysis

 The Court now addresses Plaintiff’s two arguments challenging the ALJ’s 

decision. 

 1. ALJ’s Failure to Consider Arthritis at Steps 2 and 3 

 Plaintiff challenges the ALJ’s failure to find at Step 2 of the sequential analysis 

that he is severely impaired by arthritis in his spine and hips and at Step 3 that his 

arthritis meets or medically equals a listed impairment identified in 20 C.F.R. Part 404, 

Subpart P, Appendix 1 (“the Listings”). As discussed below, the ALJ’s failure to do so 

requires the matter to be remanded. 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 22 of 31 PageID #:1180
23 

 The ALJ’s first error was his failure to mention, let alone discuss, Plaintiff’s 

arthritis at Step 2. An ALJ “is required to determine at step two of the sequential 

analysis whether the claimant in fact has an impairment or combination of impairments 

that is ‘severe.’” Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010) (citing 20 C.F.R. 

§ 404.1520(a)(4)(ii)). “A severe impairment is an impairment or combination of 

impairments that ‘significantly limits [one’s] physical or mental ability to do basic work 

activities.’” Castile, 617 F.3d at 926 (citing 20 C.F.R. § 404.1520(c)). If an ALJ finds an 

impairment to be severe at Step 2, the ALJ must then consider at Step 3 whether the 

impairment meets or equals a listed impairment. The severity finding at Step 2 is 

merely a threshold finding, and thus if an ALJ finds that one or more impairments are 

severe, the ALJ must then at Step 3 “consider the aggregate effect of this entire 

constellation of ailments – including those impairments that in isolation are not severe.” 

Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003) (citing 20 C.F.R. 

§ 404.1523); see also Arnett v. Astrue, 676 F.3d 586, 591 (7th Cir. 2012). The burden 

is on the claimant at Step 2 to show severity. Castile, 617 F.3d at 926-27. 

 Here, the ALJ failed to even mention arthritis at Step 2, despite ample objective 

and subjective evidence of this impairment. The ALJ’s Step 2 analysis consists in its 

entirety of the following: 

3. The claimant has the following severe impairments: asthma; 

hypertension; and polysubstance and alcohol abuse (20 CFR 404.1520(c) 

and 416.920(c)). 

These impairments impose more than minimal restrictions on the 

claimant’s ability to perform basic work activities. Accordingly, I find that 

these impairments are severe. 

(R. 21). It is puzzling that the ALJ omitted any mention of Plaintiff’s arthritis, even if to 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 23 of 31 PageID #:1181
24 

explain why it is non-severe, given the extensive record evidence of Plaintiff’s joint 

problems and their effect on him. The record is replete with Plaintiff’s complaints of 

arthritis pain and his use of Vicodin over at least three years to treat it. (R. 177, 180, 

191, 203-16, 236, 512). Plaintiff also testified at the hearing that he takes Vicodin and 

Ibuprofen daily for the pain, uses heating pads at home, has received cortisone shots 

from his doctor, and walks with a cane prescribed by his doctor. (R. 71, 73, 1049). The 

medical records from examining and consulting physicians are also ample. For 

example, MRIs of both shoulders in February 2006 showed extensive peri-tendinosis in 

the right shoulder and severe peri-tendinosis in the left shoulder, as well as rotator cuff 

impingement due to arthritis in both shoulders. (R. 282-83). X-rays taken on July 30, 

2009 found “mild degenerative narrowing” of the right hip joint and “possible 

osteonecrosis” of the right femoral head; “[a]dvanced degenerative disc changes” at L4-

L5, mild to moderate degenerative disc changes at L3-L4, and moderately advanced 

degenerative joint changes at L4-L5 and L5-S1, and “mild narrowing of the anterior 

tibiotalar joint” of the left ankle. (R. 525-27). That same day, Dr. Neerukonda 

completed a consultative examination for the DDC, including a musculoskeletal 

examination that revealed various limitations in flexion, abduction, extension, and 

rotation of both shoulders, the lumbar spine, the right hip, and the left ankle, as well as 

inability to do toe walk, severe limitations in heel walk, and mild limitations in tandem 

gait. (R. 530). Dr. Neerukonda’s clinical impression included bilateral shoulder 

arthralgia (joint pain), right hip degenerative joint disease, left ankle arthralgia, and 

lumbar arthralgia. (R. 531). A case analysis review by Dr. Joseph Franger on 

September 15, 2009 concluded that the medical records support a “severe” impairment 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 24 of 31 PageID #:1182
25 

“involving multiple joints,” and that Plaintiff’s statements about his pain are credible and 

supported by the records. (R. 626). 

 Given that Step 2 is simply a threshold finding, and the ALJ here progressed to 

Step 3 based on other severe impairments he identified, his failure to mention arthritis at 

Step 2 would have been remedied had he discussed Plaintiff’s arthritis at Step 3. But 

he failed to do so, never evaluating whether it meets or equals a listing on its own or in 

combination with his other severe impairments. The Listings identify and describe 

impairments that are considered severe enough per se to prevent an individual from 

performing significant gainful activity, regardless of age, education, and work 

experience. 20 C.F.R. § 404.1525(a). Thus, if a claimant satisfies the requirements of 

a listed impairment, he is presumptively considered disabled and the inquiry ends. Id.

at § 404.1520(d); see Lavarier v. Astrue, No. 09 CV 7881, 2011 WL 2116412, *15 (N.D. 

Ill. May 27, 2011); Stramaglio v. Astrue, No. 09 C 50040, 2011 WL 1118725, *7 (N.D. Ill. 

Mar. 28, 2011). Accordingly, if Plaintiff’s arthritis satisfies a listing, he is deemed 

disabled. 

 Here, Plaintiff argues that the ALJ failed to evaluate whether his arthritis of the 

hip and spine satisfies Listing 1.02 (major dysfunction of a joint) and/or Listing 1.04 

(disorders of the spine).3

 The Commissioner responds that “[a]s a preliminary matter, it 

 3

 Major dysfunction of a joint under Listing 1.02 is “[c]haracterized by gross 

anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and 

chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the 

affected joint(s), and findings on appropriate medically acceptable imaging of joint space 

narrowing, bony destruction, or ankylosis of the affected joint(s)” together with: (A) “Involvement 

of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to 

ambulate effectively, as defined in 1.00B2b;” or (B) “Involvement of one major peripheral joint in 

each upper extremity (i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform fine 

and gross movements effectively, as defined in 1.00B2c.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, 

§ 1.02. Disorders of the spine under Listing 1.04 include, among other conditions, osteoarthritis 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 25 of 31 PageID #:1183
26 

is significant that no medical source opined that Plaintiff’s impairments met or equaled 

the criteria of Listing 1.02.” (Doc. 25 at 4). However, opinions concerning whether a 

claimant is disabled are not medical opinions, but rather are opinions reserved for the 

Commissioner. 20 C.F.R. § 404.1527(e). Thus, it is not dispositive that no medical 

source expressly opined on whether Plaintiff’s condition satisfied a specific listing. 

Moreover, the Commissioner is misplaced in relying on the ALJ’s own statement that 

“none of the claimant’s treating or examining physicians have endorsed the claimant’s 

allegations of disability...” (Doc. 25 at 4, citing R. 28), particularly given that the ALJ 

omitted any mention of state agency reviewing physician Dr. Franger, who opined that 

the medical records support a “severe” disability “involving multiple joints.” (R. 626). 

The ALJ’s statement and the Commissioner’s argument also fail to take into account the 

medical evidence of arthritis identified above, including clinical tests and examinations. 

This factual scenario is distinguishable from the sole case cited by the Commissioner, in 

which two state agency physicians expressly found that the claimant’s impairments did 

not satisfy a listing and there was no contrary medical opinion. (Doc. 25 at 6, citing 

Knox v. Astrue, 327 F. App’x 652, 655 (7th Cir. 2009)). 

 The Commissioner next argues that, in any event, the evidence does not support 

a finding that Plaintiff meets or equals Listing 1.02 or 1.04. But it is not the role of this 

Court to weigh the evidence and make a determination as to whether a listing is 

satisfied. See Robinson v. Astrue, 667 F.Supp.2d 834, 843 (N.D. Ill. 2009) (“As the 

Seventh Circuit has explained, ‘regardless whether there is enough evidence in the 

 

and degenerative disc disease “resulting in compromise of a nerve root...or the spinal cord” 

together with evidence of nerve root compression characterized by pain, limitation of motion, 

motor loss accompanied by sensory or reflex loss and, if the lower back is involved, positive 

straight-leg raising test. Id. at § 1.04. 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 26 of 31 PageID #:1184
27 

record to support the ALJ’s decision, principles of administrative law require the ALJ to 

rationally articulate the grounds for her decision and confine our review to the reasons 

supplied by the ALJ.’”) (quoting Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002)). 

Rather, it is the role of this Court to assess whether the ALJ performed the required 

analysis. See Robinson, 667 F.Supp.2d at 843 (“The question here is whether the ALJ 

engaged in the required analysis, not whether, if the ALJ had engaged in the required 

analysis and had found against [Plaintiff], that conclusion would have been supported 

by substantial evidence.”) (citing Godbey v. Apfel, 238 F.3d 803, 808 (7th Cir. 2000)). 

 Here, the ALJ performed no analysis whatsoever of Plaintiff’s arthritis at Steps 2 

or 3 by failing to mention the condition entirely, let alone articulate a rationale for his 

determination that Plaintiff’s arthritis is not severe and does not meet or equal a listing. 

He did this despite a record containing x-rays, tests, and other medical evidence of 

Plaintiff’s arthritis. This is analogous to Robinson, where the court remanded because 

the ALJ “fails to discuss or even acknowledge” whether the plaintiff satisfied a listing for 

a condition where the record contained “significant evidence” that the plaintiff was 

diagnosed with and suffered from the condition. Robinson, 667 F.Supp.2d at 841-43; 

see also McKinney v. Astrue, No. 10 C 2134, 2011 WL 3704259, *10 (N.D. Ill. Aug. 22, 

2011) (same). In fact, by arguing that the ALJ was not required to discuss the listings 

due to the insufficiency of the evidence, “the Commissioner puts the cart before the 

horse” as “[i]t is only after reviewing the evidence that the ALJ could have made an 

informed determination as to whether the Listing[s] requirements had been met.” 

Robinson, 667 F.Supp.2d at 843. “Indeed, by speculating what the ALJ could have 

concluded based on the evidence, the Commissioner ‘violated the Chenery doctrine 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 27 of 31 PageID #:1185
28 

(see SEC v. Chenery Corp., 318 U.S. 80, 87-88, 63 S.Ct. 454, 87 L.Ed. 626 (1943)), 

which forbids an agency’s lawyers to defend the agency’s decision on grounds that the 

agency itself had not embraced.’” Thomas v. Astrue, No. 09 C 7851, 2011 WL 

5052049, *7 (N.D. Ill. Oct. 19, 2011) (quoting Parker v. Astrue, 597 F.3d 920, 922 (7th 

Cir. 2010)). 

 For these reasons, and without reaching any conclusions as to whether Plaintiff’s 

arthritis may meet or equal a listing, the Court remands this matter for further 

consideration of Plaintiff’s arthritis in the context of Listings 1.02 and 1.04. 

 2. The RFC Determination 

 Plaintiff also challenges the ALJ’s RFC on the ground that the ALJ failed to 

explain the weight he gave to the opinions of various state agency physicians as they 

relate to Plaintiff’s limitations arising from his arthritis and asthma. 

 In order to determine at Steps 4 and 5 of the analysis whether the claimant can 

perform his past relevant work or adjust to other work, the ALJ must first assess the 

claimant’s RFC, which is defined as the most the claimant can do despite his limitations. 

See 20 C.F.R. §§ 404.1520(e), 404.1545; Social Security Ruling (“SSR”) 96–8p, 1996 

WL 374184, *2. This requires an ALJ to consider all functional limitations and 

restrictions that stem from medically determinable impairments, including those that are 

not severe. See SSR 96–8p, 1996 WL 374184, *5. In doing so, an ALJ is not permitted 

to “play doctor” or make independent medical conclusions that are unsupported by 

medical evidence or authority in the record. Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 

565, 570 (7th Cir. 2003); Clifford, 227 F.3d at 870. Nor may an ALJ selectively consider 

medical reports. Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009); Godbey, 238 F.3d 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 28 of 31 PageID #:1186
29 

at 808. An ALJ need not discuss every piece of evidence, but must logically connect 

the evidence to the ALJ’s conclusions. See Jones v. Astrue, 623 F.3d 1155, 1160 (7th 

Cir. 2010); Berger, 516 F.3d at 544. 

 As discussed below, the RFC is not supported by substantial evidence because 

the ALJ selectively accepted and rejected portions of opinions from the various state 

agency physicians without explaining his basis for doing so. For example, state agency 

pulmonologist Dr. McKenna determined that Plaintiff should avoid even moderate 

exposure to extreme cold or respiratory irritants, yet the ALJ found, without providing 

any explanation, that “the greater weight of the evidence supports only avoiding 

concentrated exposure to extreme cold and pulmonary irritants.” (R. 28). The 

Commissioner argues that the ALJ’s discussion of Plaintiff’s asthma provides sufficient 

explanation, citing for example that “the ALJ pointed out that Plaintiff smoked cigarettes 

and was told to quit smoking by medical staff a countless number of times” as “smoking 

would presumably be contrary to any know asthma management plan.” (Doc. 25 at 7, 

citing R. 26). While the ALJ does indeed reference evidence that smoking exacerbates 

Plaintiff’s asthma, the ALJ does not reference smoking (or any other evidence) in 

rejecting Dr. McKenna’s determination. And it is not clear on its face why Plaintiff’s 

smoking habit supports the conclusion that he should avoid only “concentrated” rather 

than “even moderate” exposure to cold and irritants. The Commissioner also argues 

generally that elsewhere in his decision the ALJ identified inconsistencies “which 

suggested that Plaintiff was seeking physician intervention primarily in order to generate 

evidence for his disability application and appeal...” (Doc. 25 at 8, citing R. 27-28). But 

again, it is not clear how such inconsistencies support the ALJ’s decision to replace his 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 29 of 31 PageID #:1187
30 

own opinion for Dr. McKenna’s. Notably, later in his decision the ALJ specifies that he 

accepts the less stringent limitation proposed by state agency physician Dr. Bilinsky, 

whose specialty is unknown, concerning exposure to pulmonary irritants, while rejecting 

without explanation the more stringent limitation stated by Dr. McKenna, a 

pulmonologist. This perplexing finding only further confuses any rationale that may 

underlie the ALJ’s determination. 

 Plaintiff also cites the example of the ALJ’s assigning “limited weight” to state 

agency internist Dr. Franger’s RFC assessment finding that Plaintiff could stand or walk 

a maximum of 2 hours per day. Again, the ALJ provides no explanation whatsoever for 

his determination that Plaintiff can, in fact, stand or walk for 4 hours per day. Likewise, 

the ALJ selectively accepts and rejects portions of the RFC assessment by state 

agency physician Dr. Bilinsky, determining based “on the substantial evidence of record 

and giving the claimant the benefit of every due consideration” to “assign great weight to 

Dr. Bilinsky’s opinion as to lifting, sitting, stooping, crouching, and avoiding concentrated 

exposure to pulmonary irritants” while “agree[ing] with his opinion that the claimant 

could stand and walk at least 2 hours in an 8 hour workday, but find[ing] that he could 

stand/walk for about 4 hours in an 8 hour workday...” (R. 29) (emphasis in original). 

Nowhere in the decision does the ALJ identify what medical evidence supports his 

conclusion that Plaintiff can stand and walk for 4 hours in an 8-hour workday. In 

defending the ALJ’s determination concerning Dr. Bilinsky, the Commissioner relies 

again upon the misguided assumption that no physician “endorsed” Plaintiff’s 

allegations of disability, which as discussed above is not accurate and is, in any event, 

insufficient evidence to support the ALJ’s selective consideration of the medical reports 

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 30 of 31 PageID #:1188
31 

and his rejection of a medical opinion in favor of his own unsupported conclusions. See 

Clifford, 227 F.3d at 870-71; see also Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 

2009); Godbey, 238 F.3d at 808. 

 As noted previously, the ALJ must “build an accurate and logical bridge from the 

evidence to the conclusion.” Berger, 516 F.3d at 544; see also 42 U.S.C. § 405(b)(1) 

(denial of benefits must contain a discussion of the evidence and a statement of the 

Commissioner’s reasons). The ALJ failed to give a well-supported justification for 

selectively accepting and rejecting portions of the medical opinions in crafting the RFC. 

Nor did he identify other medical source opinions or objective medical evidence in the 

record that support his contrary RFC determination, particularly as it relates to Plaintiff’s 

ability to tolerate exposure to extreme cold and pulmonary irritants or his ability to stand 

or walk for 4 hours in an 8-hour workday. Accordingly, the RFC is not supported by 

substantial evidence. 

CONCLUSION

 For the reasons stated above, Plaintiff’s Motion for Summary Judgment [Doc. 20] 

is granted. Pursuant to sentence four of 42 U.S.C. § 405(g), the ALJ’s decision is 

reversed, and this case is remanded to the Social Security Administration for further 

proceedings consistent with this opinion. 

 ENTER: 

 

 

Dated: June 11, 2013 __________________________ 

 SHEILA FINNEGAN 

 United States Magistrate Judge

Case: 1:12-cv-00222 Document #: 31 Filed: 06/11/13 Page 31 of 31 PageID #:1189