IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

REBECCA ROEDER )

)

 Plaintiff, )

) Case No. 12 C 259

)

v. ) Magistrate Judge Daniel G. Martin

)

CAROLYN COLVIN )

)

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Rebecca Roeder ("Plaintiff" or "Roeder") seeks judicial review of a final

decision of Defendant Carolyn Colvin, the Commissioner of Social Security

("Commissioner"). The Commissioner denied Plaintiff's application for Supplemental

Security Income benefits ("SSI") and disability insurance benefits. Roeder filed a Motion

for Summary Judgment that seeks to reverse the Commissioner's decision. The

Commissioner subsequently filed a cross motion. The parties have consented to have this

Court conduct all proceedings in this case, including an entry of final judgment. 28 U.S.C.

§ 636(e); N.D. Ill. R. 73.1(c). For the reasons stated below, Plaintiff's motion is granted.

The Commissioner’s motion is denied.

I. Legal Standard

A. The Social Security Administration Standard

In order to qualify for disability benefits, a claimant must demonstrate that he is

disabled. An individual does so by showing that he cannot "engage in any substantial

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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. § 4243(d)(1)(A). Gainful

activity is defined as "the kind of work usually done for pay or profit, whether or not a profit

is realized." 20 C.F.R. § 404.1572(b). 

The Social Security Administration ("SSA") applies a five-step analysis to disability

claims. See 20 C.F.R. § 404.1520. The SSA first considers whether the claimant has

engaged in substantial gainful activity during the claimed period of disability. 20 C.F.R. §

404.1520(a)(4)(I). It then determines at Step 2 whether the claimant's physical or mental

impairment is severe and meets the twelve-month durational requirement noted above. 

20 C.F.R. § 404.1520(a)(4)(ii). At Step 3, the SSA compares the impairment (or

combination of impairments) found at Step 2 to a list of impairments identified in the

regulations ("the Listings"). The specific criteria that must be met to satisfy a Listing are

described in Appendix 1 of the regulations. See 20 C.F.R. Pt. 404, Subpt. P, App. 1. If the

claimant's impairments meet or "medically equal" a Listing, the individual is considered to

be disabled, and the analysis concludes; if a Listing is not met, the analysis proceeds to

Step 4. 20 C.F.R. § 404.1520(a)(4)(iii). 

Before addressing the fourth step, the SSA must assess a claimant's residual

functional capacity ("RFC"), which defines his exertional and non-exertional capacity to

work. The SSA then determines at the fourth step whether the claimant is able to engage

in any of his past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant can do so,

he is not disabled. Id. If the claimant cannot undertake past work, the SSA proceeds to

Step 5 to determine whether a substantial number of jobs exist that the claimant can

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perform in light of his RFC, age, education, and work experience. An individual is not

disabled if he can do work that is available under this standard. 20 C.F.R. §

404.1520(a)(4)(v). 

B. Standard of Review

A claimant who is found to be "not disabled" may challenge the Commissioner's final

decision in federal court. Judicial review of an ALJ's decision is governed by 42 U.S.C. §

405(g), which provides that "[t]he findings of the Commissioner of Social Security as to any

fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). 

Substantial evidence is "such evidence as a reasonable mind might accept as adequate

to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). A court

reviews the entire record, but it does not displace the ALJ's judgment by reweighing the

facts or by making independent credibility determinations. Elder v. Astrue, 529 F.3d 408,

413 (7th Cir. 2008). Instead, the court looks at whether the ALJ articulated an "accurate

and logical bridge" from the evidence to her conclusions. Craft v. Astrue, 539 F.3d 668,

673 (7th Cir. 2008). This requirement is designed to allow a reviewing court to "assess the

validity of the agency's ultimate findings and afford a claimant meaningful judicial review." 

Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002). Thus, even if reasonable minds could

differ as to whether the claimant is disabled, courts will affirm a decision if the ALJ's opinion

is adequately explained and supported by substantial evidence. Elder, 529 F.3d at 413

(citation omitted). 

II. Background Facts

A. Medical History

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In January 2006, Roeder was sitting in her car when another vehicle traveling at 40

miles per hour hit her from behind. (R. 312). The driver responsible for the accident was

not significantly injured, though he later died in a separate automobile accident. Roeder

was taken to the emergency room at North Shore Medical Center, where an x-ray showed 

normal alignment of the spine with some signs of spasm. (R. 199). She was released

after being prescribed Motrin and Vicodin for pain relief. 

Roeder followed up one month later with neurologist Dr. Hien Dang. Her complaints

were largely consistent with those made at the hearing – head pain from the neck up, poor

sleep, neck and back pain, and problems with concentration. (R. 201). Dr. Dang noted

lumbar and cervical sprains, as well as post-traumatic headaches. (R. 202). He

prescribed more Vicodin, as well as the muscle relaxant methocarbanol. Dr. Dang also

ordered a brain MRI for Roeder. The MRI showed only small “patchy” areas in the

cerebellum that were consistent with vascular-pattern headaches. (R. 212). An MRI of the

lumbar spine was also unremarkable except for a mild curvature. (R. 211). An EEG study

ordered by Dr. Dang revealed a left lumbar radiculopathy at the L5 level. (R. 205). 

Despite these unremarkable studies, Roeder continued to experience pain and to

seek relief from it. She began treatment with chiropractor Christopher Szpila shortly after

her accident. Roeder also consulted pain specialist Dr. John O’Hara, who injected her with

nerve blocks and prescribed two medications that are not legible from the record. (R. 215). 

The record is unclear, but Roeder appears to have seen Dr. O’Hara at least through July

2007 for her pain. (R. 214). In September 2007, she consulted with neurologist Dr. Neil

Allen. Dr. Allen agreed with the earlier diagnosis of cervical and lumbar strains, but he also

believed that Roeder had myofascial pain syndrome. Dr. Allen recommended that she

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start on Lyrica, which is used to treat fibromyalgia, and a low dose of the antidepressant

Elavil for sleep. (R. 273). A formal diagnosis of fibromyalgia was made in November 2007

by a physician whose name is illegible. (R. 277). 

Roeder began physical therapy at Lake County Physical Therapy LLC shortly after

this diagnosis was made. (R. 278-79). The record does not indicate what treatment she

may have received in 2008. In January 2009, however, Roeder consulted rheumatologist

Dr. David Mael. Dr. Mael confirmed that she had tenderness at all 18 of the test points

used to diagnose fibromyalgia, as well as significant signs of depression. He urged Roeder

to take Cymbalta to decrease her pain. When she refused, Dr. Mael increased her dosage

of Lyrica and added the pain reliever Tramadol three times a day. (R. 312-14). Three

months later, Dr. Mael added Vicodin to her medication regime. (R. 363). Roeder

attempted to deal with her depression by seeking counseling with Certified Mental Health

Professional Elaine Beisito. The treatment sessions ended in August 2009, when Roeder

claimed that she had no money and was in too much pain to continue with counselling. 

(R. 418).

B. Examining and State Agency Physician Reports

Seven reports by examining and state agency physicians were submitted to the ALJ

in this case. Dr. Scott Kale provided a report to the state disability office concerning his

February 12, 2009 examination of Roeder. Dr. Kale diagnosed her with posttraumatic

fibromyalgia, fatigue, non-restorative sleep, and a “markedly” weak cervical spine that

suggested a possible cervical myelopathy. (R. 317). Dr. Darrell Snyder issued a

Psychiatric Review Technique (“PRT”) for the SSA later the same month. Dr. Snyder

found that Roeder suffered from a non-severe form of depression. (R. 319, 322). He

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found no evidence of an episode of decompensation and only mild restrictions in Roeder’s

activities of daily living, social functioning, and concentration. (R. 329).

On March 4, 2009, state agency physician Dr. Charles Kenney issued a physical

RFC for Roeder. He found that she could lift 20 pounds occasionally, and up to 10 pounds

frequently. She could sit and stand for six hours in an eight-hour workday and had an

unlimited ability to push and pull. (R. 356). Internal medicine specialist Dr. Jeffrey Ryan

then examined Roeder in June 2009 and issued a report for the state disability office. Dr.

Ryan noted that Roeder weighed only 85 pounds. He concluded that she had fibromyalgia 

and a depressed mood. (R. 375-76). Dr. Patricia Morrin then submitted a mental status

report after examining Roeder on July 20, 2009. Dr. Morrin found her to be moderately

depressed, with diagnoses of cannabis abuse, dysthymic disorder, and nicotine

dependence. (R. 388-89).

In August 2009, Dr. Carl Hermsmeyer submitted a new PRT that found a nonsevere dysthymic disorder and a substance abuse disorder. His mental RFC, however,

was more limiting than the earlier RFC issued by Dr. Snyder. Dr. Hermsmeyer found that

Roeder suffered from a mild limitation in her activities of daily living, but she had moderate

restrictions in her social functioning and concentration, persistence, and pace. (R. 400). 

Finally, Dr. Michael Stone submitted a mental disorder report on behalf after Roeder

after examining her in May 2010. Roeder had consulted Dr. Stone in October 2009. The

notes from that consultation are part of the record. Dr. Stone concluded that Roeder

suffered from chronic pain, depression, memory problems, and “agitation” that imposed

“marked” restrictions on her activities of daily living, social functioning, and concentration.

He also found that she would frequently be unable to complete tasks and could not carry

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out work duties on a sustained basis. (R. 479-82).

C. Hearing Testimony

Roeder appeared at a hearing before ALJ Brooks on July 27, 2010. Her testimony

was elicited in large part by her attorney because the ALJ made no meaningful inquiries

concerning Roeder’s medical condition, her claimed limitations, or her activities of daily

living. Instead, the ALJ focused primarily on Roeder’s work history and a pending lawsuit

concerning the automobile accident that initiated her alleged disability. Roeder testified

that she worked as a nanny after her accident from June 2006 through June or July 2007. 

Her wages were $200 a week, though Roeder did not state how often she worked each

month, or what her monthly or annual salary was. (R. 39-40). She also stated that she

rejected two offers of $20,000 and $70,000 to settle her lawsuit because a mediator had

assessed its value at $185,000. (R. 54-56). 

Roeder described her pain as shooting from her neck down through her arms and

hands. She also experiences pain in her legs and lower back. (R. 40). Physical therapy

was helpful, but the injections she received to control the pain were not effective. (R. 41,

44). Roeder stated that she had become increasingly forgetful and fatigued. (R. 42). The

Lyrica and Tramadol given to treat her fibromyalgia were not helpful. Fatigue requires

Roeder to lie down throughout the day. (R. 51-52). Sleep is very difficult for her. (R. 42). 

She can only do small loads of laundry and has difficulty in completing most tasks. (R. 42,

47). Cooking, cleaning, and even eating are also problematic. (R. 48). Roeder, who is

five feet tall, stated that she had lost up to 15 pounds since her accident and weighed only

86 pounds at one point. (R. 50-51). 

Roeder also testified that she had become depressed following her accident. She

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sought treatment for anxiety with a therapist at the Turning Point counseling center and

also consulted psychologist Dr. Stone. However, Roeder lost all insurance coverage in

2007 and did not have the money to pursue further treatment. (R. 46-48).

D. The ALJ’s Decision

ALJ Allyn Brooks issued a written decision on August 9, 2010 that found Roeder to

be not disabled. The ALJ did not find that Roeder had engaged in substantial gainful

activity at Step 1, though the ALJ noted that Plaintiff had worked as a waitress from June

2006 through 2007 at wages below the regulatory threshold for “gainful activity.” At Step

2, Roeder’s severe impairments were identified as “status post motor vehicle accident in

2006, with residual cervical and lumbar sprain,” fibromyalgia, post-traumatic stress, and

depression. Roeder’s depression was not found to meet or medically equal a Listing at 1

Step 3.

Before moving to Step 4, the ALJ found that Roeder had exaggerated her pain. The

ALJ made no other specific credibility assessment, though he appears to have determined

that Plaintiff was largely non-credible. Roeder’s RFC was found to be a full range of

sedentary work, with the ability to understand and carry out simple instructions. Roeder

could not perform her past relevant work at Step 4. At Step 5, the ALJ determined that a

significant number of jobs were available for Roeder and, as a result, concluded that

 It is not clear what the ALJ meant by “post-traumatic stress.” Neither the record 1

nor the ALJ’s decision supports a finding of post-traumatic stress syndrome. The ALJ may

have meant this phrase to refer to Dr. Dang’s diagnosis of post-traumatic headaches. (R.

202). The record also contains findings of post-traumatic myofascial pain syndrome, (R.

277), and post-traumatic fibromyalgia. (R. 317). The ALJ’s decision does not mention any

of these diagnoses. The ALJ shall clarify on remand what post-traumatic stress includes

and the RFC restrictions, if any, that stem from it. 

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Roeder was not disabled.

III. Discussion

Roeder contests the ALJ’s decision on five grounds. She claims that the ALJ erred

because he: (1) failed to consider all of her fibromyalgia symptoms; (2) overlooked key

medical evidence; (3) improperly assessed her credibility; (4) incorrectly determined the

RFC; and, (5) failed to call a vocational expert (“VE”) to testify.

2

A. Fibromyalgia and the Medical Evidence

Roeder first claims that the ALJ overlooked a range of symptoms related to her

fibromyalgia, including fatigue, difficulty in concentration, and insomnia. The ALJ did not

consider Roeder’s fibromyalgia in any detail. The Commissioner claims that the ALJ’s

account is acceptable as it currently stands because the ALJ’s credibility assessment

discussed symptoms like pain and fatigue. According to the Commissioner, that sufficiently

accounts for Roeder’s fibromyalgia complaints. 

The Court does not reach the merits of Roeder’s fibromyalgia claim because this

case requires remand on other grounds. Instead, the ALJ is instructed to analyze this

issue in light of the SSA’s July 15, 2012 Ruling concerning fibromyalgia, SSR 12-2p. The

ALJ did not have the benefit of this Ruling when he issued his decision. SSR 12-2p makes

clear that an ALJ must consider the fact that fibromyalgia symptoms can wax and wane

and that certain limitations may be present that would erode a claimant’s occupational

In light of the errors discussed below, the Court does not reach Roeder’s 2

argument on whether the ALJ should have called a VE to testify at the hearing. The ALJ

will be required to reconsider substantial parts of the record and Roeder’s testimony on

remand. The decision as to whether a VE is necessary is best left to the ALJ’s considered

judgment in light of the facts that emerge from this additional evidence. 

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base. The Ruling also points out that, although fibromyalgia is not a listed impairment, an

ALJ must determine if it medically equals another impairment such as inflammatory

arthritis. The ALJ will have the opportunity on remand to reconsider any part of Roeder’s

fibromyalgia that requires further assessment under SSR 12-2p. 

Roeder also argues as part of this issue that the ALJ failed to properly account for

the medical record. The Court also declines to remand on this issue because the errors

discussed below already require the ALJ to consider the evidence more fully. That said,

the Court has serious concerns regarding the ALJ’s consideration of the record that was

presented in this case. Much of the record was not discussed at all. The ALJ overlooked

records from Roeder’s rheumatologist Dr. Mael and failed to note Plaintiff’s psychotherapy

with Elaine Beisito. Only two of the seven examining and state agency physician reports

discussed above were cited in the ALJ’s decision. No support for the physical RFC was

given at all. The ALJ also mistakenly concluded that Roeder had worked as a waitress

after her alleged onset date. In reality, Roeder only worked as a waitress up to the time

she was injured in January 2006.

The ALJ may have overlooked some parts of the medical record because they postdated the expiration of Roeder’s insurance disability period in September 2007. However,

that does not necessarily justify the exclusion of all medical evidence after the last date

insured. An ALJ must consider all of the record, “including the evidence regarding the

plaintiff’s condition at present.” Parker v. Astrue, 597 F.3d 920, 925 (7 Cir. 2010). See th

also Halsvorsen v. Heckler, 743 F.2d 1221, 1225 (7 Cir. 1984) (“There can be no doubt

th

that medical evidence from a time subsequent to a certain period is relevant to a

determination of a claimant’s condition during that period.”). Evidence after September

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2007 is especially important in this case because Roeder’s fibromyalgia, which the ALJ

found to be severe at Step 2, was itself first diagnosed after that date. (R. 277). The ALJ

could not find fibromyalgia to be a severe impairment and then overlook records from

Roeder’s treating rheumatologist on her condition. 

B. The Assessment of Dr. Stone

An ALJ is required to evaluate every medical opinion in the record. 20 C.F.R. §

404.1527(d). See Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004) ("Weighing

conflicting evidence from medical experts . . . is exactly what the ALJ is required to do."). 

The regulations lay out six factors an ALJ should consider as part of this analysis, including

the nature and length of the treatment relationship, the medical expert's specialization, and

the degree to which a source's opinion is supported by other evidence. 20 C.F.R. §

404.1527(d)(1)-(6). The ALJ must clearly state the weight he has given to the medical

sources and the reasons that support the decision. See Ridinger v. Astrue, 589 F.

Supp.2d 995, 1006 (N.D. Ill. 2008). 

Roeder claims that the ALJ’s assignment of “little” weight to the opinion of Dr. Stone

fails to meet this standard. Roeder met with Dr. Michael Stone in October 2009, and he

issued a Mental Disorders Report in May 2010 that imposed serious restrictions on

Plaintiff’s functional capacity. The ALJ gave Dr. Stone’s report little weight because

Roeder only met with him one time after the last date insured, and because it was not

based “on objective medical findings.” (R. 25). 

The Court agrees that the ALJ’s assessment is flawed, but on different grounds from

those Roeder presents. Plaintiff argues that the ALJ should have given the report

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controlling weight because Dr. Stone was her treating psychiatrist. See 20 C.F.R. §

4041527(d)(2) (directing an ALJ to give controlling weight to a treating source whose

opinion is well-supported by the record). That is not the case. Dr. Stone (who appears to

be a psychologist, not a psychiatrist) did not have an ongoing treatment relationship with

Roeder. (R. 480). A psychologist who only sees a claimant for one session is considered 3

an “acceptable medical source” who is not subject to the treating physician rule. See 20

C.F.R. § 404.1502; White v. Barnhart, 415 F.3d 654, 658 (7 Cir. 2005). th

An ALJ must still weigh the opinion of an acceptable medical source by applying all

the criteria required by the regulations. Several acceptable medical sources are present

in the record, though the ALJ only weighed Dr. Stone’s report. One of the ALJ’s bases for

doing so was that Dr. Stone’s findings were not based on “objective medical findings.” (R.

25). It is entirely unclear what the ALJ meant by this statement. Dr. Stone interviewed

Roeder, as a clinical psychologist would ordinarily do in order to assess a patient’s

depression. Twelve pages of interview notes accompany the psychologist’s report. Such

mental status examinations based on personal interviews are routinely used in cases of

this type. Insofar as the ALJ believed that other evidence was required, he was obligated 4

to explain what was lacking and to build a logical bridge between the absence of such

evidence and the weight given to Dr. Stone. Villano v. Astrue, 556 F.3d 558, 562 (7 Cir. th

A psychologist “is deemed to be a ‘physician’ in the sense of a medical expert with 3

relevant expertise who treats the applicant[.]” Bauer v. Astrue, 532 F.3d 606, 608 (7 Cir. th

2008) (citing 20 C.F.R. § 404.1513(a)). 

Dr. Morrin used the same interview method when she evaluated Roeder’s mental

4

condition for the state disability agency. (R. 384-89). The ALJ did not consider Dr.

Morrin’s opinion. If he had done so, however, the same logic would have required him to

find that the state agency’s own expert report was not based on objective findings. 

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2009). Merely invoking the absence of unspecified “objective medical findings” does not

allow the Court to follow the basis of the ALJ’s reasoning. 

The Commissioner defends the ALJ’s assessment of Dr. Stone by noting that his

report conflicts with other mental status exams, including Dr. Hermsmeyer’s PRT. This

argument faces strong headwinds that the Commissioner does not address. The ALJ

himself did not rely on a conflict in the record to support the weight he gave to Dr. Stone.

Courts cannot supply reasons the ALJ did not cite, even if substantial evidence in other

parts of the record supports the ALJ’s finding. Steele v. Barnhart, 290 F.3d 936, 941 (7

th

Cir. 2002); Baker v. Barnhart, 410 F. Supp.2d 757, 766 (E.D. Wis. 2005). Neither the

Court nor the Commissioner can rely on reports from Dr. Snyder, Dr. Morrin, or Dr. Ryan

to justify the ALJ’s decision because the ALJ never cited these physicians in his decision. 

The Commissioner is correct that Dr. Hermsmeyer’s PRT conflicts with Dr. Stone’s

report. But the ALJ did not rely on Dr. Hermsmeyer to discount Dr. Stone. He only used

Dr. Hermsmeyer to support the RFC assessment. (R. 25). Even if the ALJ had relied on

Dr. Hermsmeyer, he failed to explain why that justified the weight given to Dr. Stone. The

ALJ discounted Dr. Stone, in part, because he only treated Plaintiff one time. However,

Dr. Hermsmeyer – who was clearly given greater weight then Dr. Stone – did not examine

Roeder at all. An ALJ is ordinarily required to give more consideration to a medical source

who has treated a claimant than to one who has not. 20 C.F.R. § 404.1527(d)(1). See

also Gudgel v. Barnhart, 345 F.3d 467, 470 (7 Cir. 2003) (stating that a contradictory th

opinion of a non-examining physician is not sufficient, standing alone, to reject an

examining source); Criner v. Barnhart, 208 F. Supp.2d 937, 954 (N.D. Ill. 2002) (“The

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opinion of a nonexamining physician cannot by itself constitute substantial evidence that

justifies the rejection of the opinion of either an examining physician or a treating

physician”) (internal quote and citation omitted); Simms v. Astrue, 599 F. Supp.2d 988,

1002 (N.D. Ind. 2009). 

The Court agrees with the Commissioner that Dr. Stone’s report presents a more

pessimistic view of Roeder’s functional capacities than the results of the other mental

status exams. The ALJ may have good reason on remand for reaching the same result

that he found here. However, the ALJ must follow the regulatory guidelines for weighing

a medical source, must take the conflicting reports into consideration, and must discuss

the reasons for the weight assigned. Plaintiff’s motion is granted on this issue.

C. The Credibility Issue

If an ALJ finds that a medical impairment exists that could be expected to produce

a claimant's alleged condition, he must then assess how the individual's symptoms affect

his ability to work. SSR 96-7p. The fact that a claimant's subjective complaints are not

fully substantiated by the record is not a sufficient reason to find that he is not credible. 

Instead, the ALJ must consider the entire record and "build an accurate and logical bridge

from the evidence to his conclusion." Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000). 

Factors that should be considered include the objective medical evidence, the claimant's

daily activities, allegations of pain, any aggravating factors, the types of treatment received,

any medications taken, and functional limitations. Prochaska v. Barnhart, 454 F.3d 731,

738 (7th Cir. 2006); see also 20 C.F.R. § 404.1529(c)(3); SSR 96-7p. A court reviews an

ALJ's credibility decision with deference because "the ALJ is in the best position to

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determine the credibility of witnesses." Craft, 539 F.3d at 678. 

The ALJ appears to have found Roeder not to be credible at all, though his only

explicit assessment was that Plaintiff had “exaggerated” her pain. (R. 24). In support, the

ALJ relied heavily on a conclusion that Roeder had returned to work as a waitress for a full

year following her automobile accident. The ALJ mentioned that allegation three times and

found it to be evidence that Roeder could perform sedentary work. (R. 24-25). Roeder

actually testified that she worked as a nanny, not as a waitress, from June 2006 through

June or July 2007. The Commissioner contends that it does not matter whether Roeder

worked as a nanny or as a waitress. Citing Williams-Overstreet v. Astrue, 364 Fed.Appx.

271 (7 Cir. 2010), the Commissioner states that the only relevant point is that she worked th

after her injury. 

A claimant’s ability to work can raise serious doubts about her disability allegations. 

That does not mean, however, that work of any kind automatically requires a finding that

a claimant is not credible. A more nuanced view is required. There must be at least some

evidence showing what work Roeder did, the exertion level it required, and the frequency

of her work. The Commissioner’s reliance on Williams-Overstreet does not suggest

otherwise. In that case, the claimant worked part-time four days a week, six hours a day,

transporting passengers at an airport terminal in a golf car or a wheelchair. Id. at 277. The

VE testified that this constituted work at the “medium” exertional level, which supported a

finding that the claimant could perform sedentary work. Id. 

No equivalent evidence is available in this case. Setting aside the fact that the ALJ

misunderstood the work Roeder actually did, he also failed to elicit the testimony needed

to support his credibility inference. Moreover, the ALJ cited nothing in the record showing

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what Roeder did as a nanny, how many hours she worked each week, or whether her work

was full-time, part-time, or sporadic. The ALJ relied on a conclusion that Roeder earned

$800 a month, implying that she worked on a sustained basis each month from 2006 to

2007. But Roeder only stated that she earned $200 a week. She may have worked only

a few days a week. She may also have only worked one or two weeks a month, or not at

all for periods of time. The Court notes that Plaintiff’s income sheet states that she had no

income for calendar year 2007, and earned only $1,268.70 in 2006. (R. 109). This is not

evidence that Roeder earned $800 a month from June 2006 to June 2007, or that she

worked on a sustained basis. Without asking about the tasks and hours Roeder actually

undertook as a nanny, the ALJ failed to explain why her past work was a ground for

discounting her testimony on this point. 

The ALJ also relied on the fact that Roeder had turned down offers of $20,000 and

$70,000 to settle her personal injury suit. He concluded that “[i]t is evident that the

claimant has an incentive to continue being treated and not to work.” (R. 24). The

Commissioner states that the Seventh Circuit’s decision in Edwards v. Sullivan, 985 F.2d

334 (7 Cir. 1993) implicitly approves of an ALJ’s reliance on a lawsuit to reach such a

th

conclusion. This overstates the extent of Edwards’ discussion. The Seventh Circuit upheld

an ALJ’s adverse credibility decision that depended, in part, on the fact that the claimant

in that case was pursuing a personal injury action. However, the ALJ’s decision was also

based on a range of other factors that undermined the claimant’s subjective allegations. 

Edwards did not single out the pending personal injury suit as a justification for the ALJ’s

decision. Id. at 338. 

The Commissioner overlooks in this regard that many courts have firmly rejected

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an ALJ’s reliance on personal injury suits as basis for discounting a claimant’s credibility. 

See, e.g., Fortier v. Astrue, No. 3:10-cv-1688, 2012 WL 3727178, at *11 (D. Conn. May 11,

2012); Foster v. Astrue, No. 3:08-cv-960, 2009 WL 4757239, at *6-7 (M.D. Fla. Dec. 10,

2009); Aronis v. Barnhart, No. 02-cv-7660, 2003 WL 22953167, at *7 (S.D.N.Y. Dec. 15,

2003). At a minimum, the ALJ was required to explain why Roeder’s suit undermined her

credibility instead of citing the fact that she filed a personal injury suit. It is undisputed that

Roeder was looking for money to treat her pain. The reason is not difficult to find in the

record: Roeder stated that she lost her health insurance in 2007. The ALJ overlooked that

issue entirely. On remand, the ALJ shall explain more carefully how he reached this

conclusion and what evidence supports a finding that Roeder exaggerated her pain.

Roeder’s lawsuit and her alleged work as a waitress were the only specific reasons

the ALJ cited for the credibility assessment. The Commissioner notes that the ALJ also

considered Roeder’s activities of daily living. In reality, the ALJ did not so much discuss

these activities as he merely cited the conclusions of Dr. Hermsmeyer, who did not

examine Roeder. That may be because the ALJ never asked Plaintiff any questions at the

hearing about her activities, her functional limitations, or the symptoms of her impairments. 

Nor did the ALJ cite what Plaintiff actually said at the hearing in response to her attorney’s

questions on these topics. If the ALJ intended to rely on Roeder’s daily activities as a basis

for her credibility, he should have questioned her directly, or at least taken account of her

testimony. That is, after all, one of the purposes of holding a non-adversarial hearing

before a social security ALJ. See Moran v. Astrue, 569 F.3d 108, 112 (9 Cir. 2009); th

Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999). 

Equally important, the ALJ failed to consider the accuracy of what Dr. Hermsmeyer

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stated on this topic. Dr. Hermsmeyer’s account of Roeder’s activities appears to be based

on the self-reported activities that Plaintiff submitted to the SSA. (R. 402, 139-45). The

problem is that Dr. Hermsmeyer’s version of Roeder’s activities does not fully reflect what

she stated in the SSA reports. Plaintiff did state that she could drive a car, but she also 5

claimed that friends have to drive her places. She can do household chores, but only when

she moves slowly. She can go out of the house, as Dr. Hermsmeyer indicated, but only

once a day. These statements strongly suggest qualifications on Roeder’s activities that

neither Dr. Hermsmeyer nor the ALJ considered. On remand, the ALJ should account for

what Plaintiff testified to about her daily activities and explain with greater care how they

support the credibility assessment. Plaintiff’s motion is granted on this issue. 

D. The RFC Issue

Finally, Roeder argues that substantial evidence does not support the RFC

assessment of sedentary work because he overlooked key parts of the medical record. 

As the Court noted earlier, the ALJ failed to consider large portions of the record. The

result is that the ALJ did not provide any discussion of how he reached the RFC. Social

Security Ruling 96-8p requires ALJs to provide “a narrative discussion describing how the

evidence supports each [RFC] conclusion” and must also address the medical source

opinions. Especially important in this case was Dr. Charles Kenney’s physical RFC, which

found that Roeder was able to carry out light work. See 20 C.F.R. § 404.1567(b)

(describing the requirements for light work). The ALJ never discussed this finding and did

The Court’s concerns about the accuracy of Dr. Hermsmeyer’s account of the 5

record is deepened by the fact that he appears to have believed that Roeder (who is

female) was a man. See Record at 406 (repeatedly referring to Roeder as “he”). 

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not rely on it in reaching his own RFC. He also failed to ask Roeder about any of her

exertional or non-exertional limitations at the hearing. 

The only part of the medical record that the ALJ cited was a generalized reference

to documents from the Brain Medical Center. The ALJ believed these documents indicated 

that Roeder had “no limitations on lifting, sitting and standing.” (R. 24). That explains

nothing about why Roeder should be limited to sedentary work. If Roeder had an unlimited

ability to sit, stand, and lift then she could presumably perform sedentary, light, medium,

heavy, or even very heavy work under the regulations. See 20 C.F.R. § 404.1567. The

ALJ’s task was to explain what evidence supported his finding that Roeder actually had

limitations in all of these exertional areas. As it stands, the Court cannot follow the logic

of the ALJ’s reasoning on this issue. 

The result is that the ALJ did what he was not allowed to do – fashion his own RFC

without supporting evidence. Social Security Ruling 96-8p requires an ALJ to explain how

he arrived at the RFC assessment and to describe the evidence that supports its

conclusions. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352-53 (7 Cir. 2005); SSR th

96-8p. This requires a thorough examination of both medical and non-medical evidence.

20 C.F.R. § 404.1545. What an ALJ cannot do is fashion a “middle ground” RFC without

a proper basis. Bailey v. Barnhart, 473 F. Supp.2d 822, 838-39 (N.D. Ill. 2006); Norris v.

Astrue, 776 F. Supp.2d 616, 637 (N.D. Ill. 2011). That is what took place here. On

remand, the ALJ shall explain how the record supports the RFC assessment.

Roeder objects to the ALJ’s finding that her mental limitations could be

accommodated by performing only “simple” tasks. The Court agrees, albeit on slightly

different grounds. An ALJ can fashion an appropriate mental RFC that assigns “simple”

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tasks to a claimant. See Warner v. Astrue, 880 F. Supp.2d 935, 944 (N.D. Ill. 2012). If he

does so, however, he cannot rely on a phrase like “simple tasks” to account for all of a

claimant’s mental restrictions” unless the record shows that a doctor used [such] particular

descriptive language to describe what work a claimant can perform in spite of his

limitations[.]” Conley v. Astrue, 692 F. Supp.2d 1004, 1009 (C.D. Ill. 2010). See also 

Lichtsinn v. Astrue, 683 F. Supp.2d 811, 821-22 (N.D. Ind. 2010).

The ALJ tried to meet this requirement by referencing Dr. Hermsmeyer’s conclusion

that Roeder could perform “simple one- and two-step tasks at a consistent pace.” (R. 25,

406). The Commissioner claims that Dr. Hermsmeyer’s statement, together with Dr.

Morrin’s analysis, sufficiently supports the ALJ’s mental RFC. Unfortunately, that is not the

case. The ALJ never cited Dr. Morrin, and the Commissioner cannot rely on evidence the

ALJ did not consider. As for Dr. Hermsmeyer, his conclusion concerning Roeder was

based on findings that the ALJ did not adopt in their entirety. Dr. Hermsmeyer found that

Roeder’s depression was not severe; the ALJ concluded it was severe. (R. 390). Dr.

Hermsmeyer believed that Roeder had “moderate” limitations in her social functioning; the

ALJ’s special technique analysis at Step 2 found the restriction to be “mild.” (R. 400). Dr.

Hermsmeyer also found that Roeder had a substance addiction disorder; the ALJ did not. 

(R. 390).

These discrepancies are not large in themselves, but it is clear that the ALJ did not

adopt Dr. Hermsmeyer’s opinion completely. The ALJ presumably believed that other

reasons existed for finding that Roeder was less limited in her social functioning, but that

her depression was more severe than Dr. Hermsmeyer believed. However, the ALJ gave

no explanation as to what those reasons were. As this case requires remand on other

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grounds, the ALJ shall clarify what evidence supports his special technique conclusions

and how the fact that Roeder can perform simple tasks accounts for the limitations that are

found by applying that technique. Plaintiff’s motion is granted on the RFC issue. 

IV. Conclusion

For the reasons stated above, Plaintiff's motion for summary judgment [11] is

granted. The Commissioner’s motion [23] is denied. This case is remanded to the Social

Security Administration under sentence four of 42 U.S.C. § 405(g) for further proceedings

consistent with this opinion. It is so ordered.

ENTERED:

__________________________________

 DANIEL G. MARTIN

 United States Magistrate Judge

Dated: July 2, 2013

 

 

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