IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ANTONIETTA RINALDI-MISHKA,

Plaintiff,

v.

MICHAEL J. ASTRUE,

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

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No. 12 C 1305

Magistrate Judge 

Maria Valdez

MEMORANDUM OPINION AND ORDER

This action was brought under 42 U.S.C. § 405(g) to review the final decision

of the Commissioner of Social Security denying Plaintiff Antonietta RinaldiMishka’s (“Rinaldi-Mishka” or “Claimant”) claim for Disability Insurance Benefits.

The parties have consented to the jurisdiction of the United States Magistrate

Judge pursuant to 28 U.S.C. § 636(c). For the reasons that follow, Rinaldi-Mishka’s

motion for summary judgment [Doc. No. 14] is granted in part and denied in part.

The Court finds that this matter should be remanded to the Commissioner for

further proceedings.

BACKGROUND

I. PROCEDURAL HISTORY

Rinaldi-Mishka originally applied for Disability Insurance Benefits on April

2, 2008, alleging disability since July 15, 2006. (R. 36) Her application was denied
initially on July 16, 2008 and upon reconsideration on November 13, 2008. (Id.)

Rinaldi-Mishka filed a timely request for a hearing by an Administrative Law

Judge (“ALJ”), which was held on March 23, 2010. (Id.) Rinaldi-Mishka personally

appeared and testified at the hearing and was represented by counsel. (Id.) A

vocational expert also testified. (Id.)

On October 20, 2010, the ALJ denied Rinaldi-Mishka’s claim for benefits and

found her not disabled under the Social Security Act. (R. 46.) The Social Security

Administration Appeals Council denied Rinaldi-Mishka’s request for review (R. 1-

3), leaving the ALJ’s decision as the final decision of the Commissioner and

therefore reviewable by the District Court under 42 U.S.C. § 405(g). See Haynes v.

Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).

II. FACTUAL BACKGROUND

A. Background

Rinaldi-Mishka was born on January 19, 1971. (R. 164.) She married her

current spouse in 2002 and has a six year old daughter. (R. 165.) She worked as a

customer service representative for FedEx for seventeen years, from 1994 through

2006, (R. 173-76), and continued to work there for one hour per day, five days a

week, from July 2006 through February 2008. (R. 192.) Rinaldi-Mishka claims

disability due to degenerative lumbar disc disease, cervical spine disc herniation,

carpal tunnel syndrome, left elbow epicondylitis, and mental impairments of

depression and anxiety related disorder. (R. 38.)

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In her application, Rinaldi-Mishka reported that she is in pain most of the

day. (R. 219.) She can no longer write, type, use the phone, sit, or lift objects with

any regularity. (R. 216.) The pain also affects her at night and prevents her from

sleeping more than three or four hours. (Id.) She wakes up with swollen fingers and

her hands often cramp. (R. 222.) She reported neck and back pain, numbness,

tingling in her hands, and throbbing in her elbows, (R. 216), and has trouble lifting

more than five pounds, bending over, standing, sitting, climbing the stairs, using a

pen or pencil, and more (R. 220, 224)—in short, virtually every activity of daily life

causes her pain. She attributes the pain to degenerative disc disease in her neck

and lower back. (R. 225.) She also started wearing a brace for her left elbow in 2006.

(R. 221.)

Rinaldi-Mishka takes part in household duties on a limited basis. She shares

child care responsibilities with her husband and mother. (R. 215.) She prepares food

on a daily basis, but her cooking is much more limited recently, and she requires

help with cooking, cleaning, laundry, and a weekly shopping trip. (R. 217-18.) Her

husband does most of the house and yard work. (R. 218.) She reported no hobbies,

no regular social activities, and no regular excursions. (R. 219.) 

B. Testimony and Medical Evidence

1. Rinaldi-Mishka’s Testimony

Rinaldi-Mishka testified that she suffers from constant pain in her fingers,

hands, elbows, neck, shoulder, lower back, and right hip, and the pain worsened

from 2006 until the time of her hearing. (R. 61.) She attributed the upper body pain

3
to carpal tunnel syndrome, degenerative disc disease and herniated discs, and said

that she assumed she was referred to a rheumatoid arthritis doctor for the hip pain.

(R. 61-62.) She received no treatment for the neck and lumbar back pain; she had

physical therapy for the carpal tunnel in her hands and elbows. (R. 62.) Two doctors

suggested surgery as an option, but the claimant chose not to proceed. (R. 73.) She

said that she feared it could make her condition worse, based in part on the

experiences of her mother-in-law and a coworker, both of whom had multiple

surgeries for similar problems without success. (Id.) 

Rinaldi-Mishka has carpal tunnel in both hands, which causes her hands to

cramp when she holds objects. (R. 64.) Some days are worse than others. (R. 70.)

She can sometimes pick up and drink a cup of coffee, can pick up coins, and can use

a pen, button or zip a shirt, and tie shoes. (R. 65.) These tasks now take her longer

than they did before: writing a few checks now takes her thirty minutes, while in

the past she reported being much faster at it and requiring fewer breaks. (R. 71.)

She uses a computer to check her email, but stays on for no more than fifteen

minutes. (R. 65-66.) If she types for ten minutes, she requires a minimum break of

fifteen minutes, then can return to typing for another ten minutes. (R. 76.) Her

husband carries the groceries and the laundry bag; she limits how much she must

lift objects at home, and lifting a gallon of milk “is a chore.” (R. 66.) She has also

chaperoned two three-hour school field trips, which required watching the children

but “nothing physical,” and she attends church services but cannot kneel and finds

the sitting difficult. (R. 66-67.) She said she can stand for thirty to forty five

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minutes, sit for fifteen to twenty minutes without shifting, and walk four to six

blocks before the pain makes it too difficult. (R. 63.) 

In terms of medications, Rinaldi-Mishka testified that she takes Xanax as

needed in order to deal with anxiety, generally once or twice per week. (R. 77.) After

taking a dose of Xanax, she sits for fifteen to twenty minutes and finds that the

anxiety subsides within an hour. (R. 78.) She struggles to sleep and takes Ambien a

few times per week to help her rest, but she generally cannot take the pain

medications prescribed to her because they cause bothersome side effects, including

drowsiness, stomach discomfort, and light-headedness. (R. 63, 78.)

The claimant testified that while she had worked for one hour per day

without difficulty prior to claiming disability, she could not have handled returning

to an eight-hour workday in her previous work: she could not perform the repetitive

tasks of writing, typing, filing, and phone use. (R. 69.) She also testified that she

had a workers’ compensation claim, which settled for $200,000 in November 2008.

(R. 68.)

2. Medical Evidence

Dr. Mohammed Alawad examined Rinaldi-Mishka on April 29, 2006, noted

her right elbow pain and finger pain, and ordered her to take a reduced work

schedule. (R. 280.) He continued to treat her, as described below. (This summary of

the medical evidence is roughly chronological.)

Dr. Rolando Garces treated the claimant for right arm pain in June 2006,

diagnosing lateral epicondylitis and ordering her to avoid lifting more than three

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pounds, wear a brace, and limit the use of her right arm. (R. 261-63.) Upon a

referral from Dr. Alawad, Dr. Hamid Mohazab examined the claimant’s right elbow

and found it unremarkable. (R. 342.) 

Dr. Harun Durudogan treated Rinaldi-Mishka for right lateral epicondylitis

and right arm radiculopathy beginning in July 2006, restricting her from working

with her right upper extremities in July and adding restrictions on lifting, pushing,

pulling, and carrying more than two pounds and on repetitive activity for more than

fifteen minutes with her right arm in September. (R. 310-11.) He gave the claimant

an injection in her right elbow in August and prescribed additional non-surgical

treatments. (R. 360.) He also put the claimant on an occupational therapy program,

beginning in July, (R. 361), and saw her at least three times in August, reporting

that using light compression during sleep and a counter force cuff during waking

hours produced a “good result.” (R. 460.) While he found her right hand and wrist

had a range of motion “within functional limits,” the grip and pinch strength

indicated a moderate impairment when compared with her left hand. (Id.) Dr.

Durudogan rechecked her right lateral epicondylitis in September and found that

she still had a radiating pain in her arm, and she reported episodes of burning pain

in her neck. (R. 358.) He kept her on the occupational therapy program and other

treatments. (Id.) At her further follow-up occupational therapy appointments,

Rinaldi-Mishka reported continued pain in her wrist that limited her gripping

ability. (R. 482.) At a follow up later in September she had regained grip strength in

her right wrist to make it comparable to her left, while also seeing improvement on

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other aspects of her wrist strength and a decrease in pain. (Id.) But one week later,

her pain increased and symptoms returned. (Id.) Dr. Durudogan felt that RinaldiMishka “would benefit from surgical intervention,” and discussed the risks and

benefits with her at length in September. (R. 357.) He indicated that she would be

able to return to work the day after that visit. (R. 401.) Rinaldi-Mishka called to

report that another doctor had discontinued her occupational therapy until after

surgery, stating that she planned to schedule the surgery no earlier than the end of

October. (R. 482.) She reported by phone in November that her symptoms remained

significant and that a second doctor, Dr. Anton Fakhouri, had recommended

surgery. (Id.) 

In September 2006, upon a referral from Dr. Durudogan, Dr. Mohazab took

an MRI of claimant’s cervical spine and diagnosed broad based left paracentral

herniation at the C6-7 level and post central disc herniation at C5-6. (R. 290.) An

MRI of claimant’s right elbow led Dr. Joel Leland to indicate a minimal amount of

fluid at the distal biceps tendon, “which may be secondary to mild tendonitis.” (R.

291.)

In October 2006, Dr. Fakhouri diagnosed lateral epicondylitis in the right

elbow with radial tunnel syndrome and right carpal tunnel syndrome. (R. 284.)

Claimant was told that she could discontinue her use of a forearm strap, but could

and did continue to wear a wrist splint while continuing to take non-steroidal antiinflammatory medication, although the doctor believed that this treatment “would

not resolve her condition.” (R. 282.) Dr. Fakhouri presented the option of surgery,

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which would allow a return to light work in two to three weeks and full work in two

to three months. (Id.) Dr. Fakhouri suggested no lifting, carrying, pulling or

pushing more than five pounds. (R. 282, 284.) In response to claimant’s complaints

about wrist pain, the doctor also suggested typing no more than ten minutes per

hour and writing no more than ten minutes per hour, and recommended a return to

work limited to occasional lifting, carrying, pushing or pulling five pounds or less

and no climbing or using tools or equipment. (R. 284, 294.) Dr. Fakhouri included

the same restrictions after a November 2006 follow-up examination. (R. 296.) 

Dr. Richard Lim treated the claimant for neck pain in October 2006, noting

that she had tested positive for carpal tunnel syndrome but negative for

radiculopathy. (R. 281.) Dr. Sung-Lana Kim also examined Rinaldi-Mishka in

October 2006, diagnosing mild median mononeuropathy at the wrists and finding

no evidence of right cervical radiculopathy. (R. 286.) 

Dr. John Stogin, Jr. performed an independent medical evaluation on

Rinaldi-Mishka in January 2007, diagnosing right lateral epicondylitis as her

primary elbow problem, while noting that “she may have some very mild right

carpal tunnel syndrome” and “there may be a component of radial tunnel

syndrome.” (R. 349.) He suggested injections near her lateral epicondyle and

potentially for carpal tunnel, finding that her problem was not sufficiently

dangerous to warrant surgery, despite that suggestion from Dr. Fakhouri. (Id.) Dr.

Stogin believed that her discomfort stemmed from repetitive grasping with elbow

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flexion and extension, but did not attribute her carpal tunnel syndrome to these

activities. (Id.)

Upon a referral from Dr. Alawad in December 2007, Dr. Shahrooz Sepahdari

examined the claimant’s lumbosacral spine and right sacroiliac joint and found no

abnormalities in either region. (R. 337.) 

In March 2008, Dr. Charles Huang took an MRI of the claimant’s lumbar

spine and diagnosed early, multilevel, thoracolumbar degenerative disc disease;

facet arthropathy; and increased adipose tissue. (R. 307.) In May 2008, Dr. Amir

Sepahdari examined Rinaldi-Mishka via an MRI of her left elbow and found partial

disruptions of the common flexor tendon group insertion and anterior bundle of the

ulnar collateral ligament. (R. 363.) 

Dr. Peter Biale reviewed Rinaldi-Mishka’s medical information and spent

thirty minutes with her for a consultative exam on behalf of the Bureau of

Disability Determination Services in June 2008. (R. 375.) He observed her to move

without difficulty or discomfort during the exam, and without apparent mental

disorder, although she complained of low back pain at one point, (R. 376), and had

trouble getting on and off the examination table. (R. 377.) He noted that she

experienced pain in her back (and radiating to her legs), right wrist, and left elbow.

(R. 375, 377.) Dr. Biale listed his clinical impressions as low back pain from

degenerative disc disease and facet arthropathy, neck pain from disc herniation at

C5-C6 and C6-C7, right carpal tunnel, and left elbow epicondylitis with pain but a

full range of motion. (R. 378.)

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Dr. Alawad saw the claimant again in May 2008 for her left elbow pain; he

noted that the MRI imaging was poor, but expressed a concern that she may have

had partial non-complete disruptions of the common flexor tendon group (which

might be an element of epicondylitis) and of the anterior bundle of the ulnar

collateral ligament. (R. 382.) In July, Dr. Alawad reviewed an MRI of her right

elbow and found a minimal amount of fluid that “may be secondary to mild

tendonitis.” (R. 389.) On the same MRIs, Dr. Daniel Frankel found the results to be

negative, while noting the degraded image of the left elbow MRI. (R. 425, 427.) In

August, Dr. Alawad completed a residual functional capacity (RFC) assessment for

Rinaldi-Mishka and indicated the following limitations: she could sit for one hour;

stand for one to two hours; sit and stand for a total of four hours during an eighthour workday; work in a low stress job; be able to shift positions at will during the

workday; and never lift any weight. (R. 386-88.) He indicated she would have

significant limitations with reaching, handling, and fingering, and concluded that

she could spend “no” time during an eight-hour workday using her hands for fine

manipulations, grasping objects, or reaching overhead. (R. 388.) Furthermore, he

indicated that her condition would produce “good days” and “bad days” and would

keep her from work more than four days per month. (Id.)

Dr. Frank Jimenez performed a consultative RFC assessment in July 2008

and found that Rinaldi-Mishka could occasionally lift twenty pounds, frequently lift

ten pounds, stand and/or walk for six hours in an eight-hour workday, and sit for

six hours in an eight-hour workday. (R. 414.) She could occasionally climb stairs,

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balance, stoop, kneel, crouch, and crawl, but never climb ladders, ropes, or scaffolds,

and had a limited range of motion in her spine and an inability to squat, according

to Dr. Jimenez. (R. 415.) He found no manipulative, visual, communicative, or

environmental limitations. (R. 416-17.) He noted that no treating source statement

had been provided. (R. 420.)

Dr. Piyush Buch performed a consultative psychiatric RFC assessment in

September 2008, including a thirty minute exam, and diagnosed Rinaldi-Mishka

with an anxiety state with depressive features. (R. 432-33.) The doctor indicated

that the claimant cooperated, had no incoherence, but had an anxious affect

throughout the examination. (R. 433.) In summarizing Rinaldi-Mishka’s work

history, the doctor noted that she “stopped working because she was laid off and she

is on workman’s comp,” and that she cannot work at the present time because of

chronic back pain and carpal tunnel syndrome. (R. 432.)

Dr. Leon Jackson completed a psychiatric review in November 2008 and

diagnosed an anxiety state with depressive features, reviewing both affective

disorders and anxiety-related disorders. (R. 435, 438.) He indicated mild limitations

in the first three listing categories: restriction of activities of daily living, difficulties

in maintaining social functioning, and difficulties in maintaining concentration,

persistence, or pace. (R. 445.) Dr. Jackson concluded that the claimant’s psychiatric

impairments were not severe. (R. 435, 447.) 

Dr. Jennifer Cooper started seeing Rinaldi-Mishka in March 2009. (R. 452.)

In an RFC in January 2010, she diagnosed carpal tunnel, tendinitis, and a

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herniated disc at the cervical spine; identified symptoms of constant pain, fatigue,

insomnia, and depression; and gave the claimant a prognosis of “poor.” (Id.) She

found that the claimant would be incapable of even low stress jobs and that her

symptoms would interfere with her attention and concentration constantly. (R.

453.) She could walk two blocks, sit for one hour at a time, stand for one hour at a

time, and sit and stand for a total of four hours each during an eight hour workday,

according to the RFC. (R. 453-54.) Dr. Cooper also indicated that Rinaldi-Mishka

would need unscheduled breaks during the day and a job that allowed her to shift at

will between sitting, standing, and walking. (R. 454.) She could lift less than ten

pounds rarely, and never more than ten pounds. (Id.) She had problems with

reaching, handling, or fingering, and could occasionally move her head in various

ways, twist, stoop, crouch, or climb stairs. (R. 455.) Dr. Cooper found that the

claimant would have good and bad days and would be absent from work more than

four days per month, on average. (Id.) 

Dr. Daniel Hirsen completed a fibromyalgia RFC in May 2010, diagnosing

Rinaldi-Mishka with undifferentiated connective tissue disease and giving a

prognosis of “fair.” (R. 519.) He indicated bilateral pain throughout her body,

including spine, chest, shoulders, arms and hands, hips, legs and feet. (R. 520.) He

found that she would be incapable of even low stress jobs, could sit for one hour at a

time, could stand for one hour at a time, and could sit and stand/walk for a total of

less than two hours each in an eight-hour workday. (R. 521.) She could never lift

anything even less than ten pounds, could never sustain flexion in her neck (to look

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down, for example), could never twist her body, and had significant limitations in

repetitive reaching, handling, or fingering, according to the RFC. (R. 523.) Dr.

Hirsen did not diagnose fibromyalgia, although he found her syndrome to be largely

compatible with it; rather, he found that undifferentiated connective tissue disease

was a more appropriate descriptor, which indicates a “mild process of inflamation in

the joints due to a mild, incomplete autoimmune disease.” (R. 530.) He prescribed

hydroxychloroquine, a long-acting anti-inflammatory drug, to control the joint pain.

(Id.) He also cited Rinaldi-Mishka’s depression as having a major effect on her pain

and suggested it could preclude subjective improvement if left untreated. (Id.) Dr.

Hirsen sought to check with the claimant again two months later, but notes from

any subsequent appointment with him do not appear in the record.

3. Vocational Expert’s Testimony

The vocational expert (VE) testified that for a person of Rinaldi-Mishka’s age,

education, and work experience, with the residual functional capacity to perform

light work, limited to occasionally climbing ramps and stairs, never climbing

ladders, ropes or scaffolds, and occasionally stooping, kneeling, crouching, and

crawling, she could work in any unskilled job requiring only light work. (R. 81.)

These included office helper, cashier, light cashier, and information clerk; over

58,500 such jobs are available in the metropolitan area. (R. 82.) When limited

further to occasional handling and occasional reaching overhead, the VE identified

two available jobs—sedentary unskilled information clerk and unskilled

information clerk—but did not testify to the number of such jobs available in the

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metro area and indicated a “low inconsistency between these two DOT titles.” (R.

82-83.) In his earlier testimony, however, the VE indicated that the total number of

information clerk positions was 4,000, (R. 82), and in his later testimony the VE

identified 2,000 sedentary unskilled information clerk positions, (R. 84), so we

deduce that the number of unskilled information clerk positions must be between

2,000 and 4,000. In a second hypothetical, with the added limitations of sedentary

work with occasional postural limitations, the VE identified surveillance system

monitor, unskilled information clerk, and order clerks, totaling 7,100 jobs. (Id.) In a

third hypothetical, for an individual who could not lift, push, or pull more than five

pounds and could neither type nor write for more than ten minutes per hour, the

VE identified sedentary informational clerk and sedentary surveillance system

monitor, (R. 86-87); based on his previous testimony, we deduce that the number of

such jobs is between 4,200 and 6,200 (between 2,000 and 4,000 sedentary

information clerks and 2,200 for surveillance system monitors).

The VE indicated that an absenteeism rate of more than ten percent—that is,

an individual that had to miss more than two days per month—would rule out all

unskilled positions. (R. 85.) In addition to absenteeism, the VE said that limitations

of no reaching, handling, and fingering would be a second “very big problem” that

would, presumably, rule out all unskilled positions. (R. 86.)

C. ALJ Decision

The ALJ found that Rinaldi-Mishka had not engaged in substantial gainful

activity from her initial onset date of July 15, 2006 through her date of last insured

14
of December 31, 2012. (R. 38.) The ALJ also found that Rinaldi-Mishka had severe

impairments of degenerative lumbar disc disease, cervical spine disc herniation,

carpal tunnel syndrome, and left elbow epicondylitis. (Id.) The claimant had also

alleged disability due to depression and anxiety related disorder, but the ALJ found

that these mental impairments did not cause more than minimal limitations and

were therefore nonsevere. (R. 38-39.) The ALJ stated that none of the impairments,

alone or in combination, met or medically equaled any listing of impairments. (Id.)

The ALJ next determined that Rinaldi-Mishka had the RFC to perform light

work with the following limitations: she could occasionally climb a ramp or stairs;

occasionally balance, stoop, kneel, crouch, or crawl; and never climb a ladder, rope,

or scaffold. (R. 39.) The decision relied principally on the RFC conclusions of the

physicians from the State Disability Determination Services, as well as the

statements by Drs. Fakhouri and Lim that the claimant could return to light duty

work. (R. 44.) The ALJ rejected the RFC conclusions of Drs. Alawad and Cooper,

based on the “minimal findings of carpal tunnel syndrome” and claimant’s own

description of her daily activities, which included writing, tying her shoes, and

more. (R. 43-44.) Dr. Hirsen’s RFC assessment was rejected as conclusory and

lacking a clear evidentiary basis. (R. 44.) The ALJ also found the claimant to be

less than credible based on several factors: her pending workers’ compensation

claim, which she settled; her work for one hour per day from the onset date through

2008; her decision to forgo carpal tunnel surgery and rely only on physical therapy

and medication for her carpal tunnel syndrome; her rating of her pain as a six on a

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1-10 scale; her testimony that she could walk four to six blocks; and her statement

to her treating physician in 2008 that she was looking for a job. (R. 44-45.) This last

factor “suggests that inability to obtain work, as opposed to inability to perform

work, may be a motivation behind the current application.” (R. 45.) RinaldiMishka’s testimony was totally disproportionate to the objective medical findings,

according to the ALJ, which did not support limitations to fifteen minutes of sitting.

(R. 45.) Furthermore, the claimant’s own description of her daily activities did not

comport with her description of her limitations. (Id.)

On the basis of the RFC assessment and the VE’s testimony, the ALJ found

that Rinaldi-Mishka could perform her past relevant work as a customer service

representative. (Id.) In the alternative, the ALJ found that the claimant could

perform other jobs that existed in significant numbers in the national economy

based on her RFC. (R. 45-46.) Despite the claimant’s limitations, sufficient jobs in

the regional economy would be available to someone with her age, education,

experience, and RFC, according to the ALJ, such that Rinaldi-Mishka is “not

disabled” within the meaning of the Medical-Vocational Guidelines. (R. 46.)

DISCUSSION 

I. ALJ LEGAL STANDARD

Under the Social Security Act, a person is disabled if she has an “inability to

engage in any substantial gainful activity by reason of a medically determinable

physical or mental impairment which can be expected to result in death or which

has lasted or can be expected to last for a continuous period of not less than twelve

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months.” 42 U.S.C. § 423(d)(1)(a). In order to determine whether a claimant is

disabled, the ALJ considers the following five questions in order: (1) Is the claimant

presently unemployed? (2) Does the claimant have a severe impairment? (3) Does

the impairment meet or medically equal one of a list of specific impairments

enumerated in the regulations? (4) Is the claimant unable to perform his former

occupation? and (5) Is the claimant unable to perform any other work? 20 C.F.R.

§ 416.920(a)(4) (2008). 

An affirmative answer at either step 3 or step 5 leads to a finding that the

claimant is disabled. Young v. Sec’y of Health & Human Servs., 957 F.2d 386, 389

(7th Cir. 1992). A negative answer at any step, other than at step 3, precludes a

finding of disability. Id. The claimant bears the burden of proof at steps 1-4. Id.

Once the claimant shows an inability to perform past work, the burden then shifts

to the Commissioner to show the ability to engage in other work existing in

significant numbers in the national economy. Id.

II. JUDICIAL REVIEW

Section 405(g) provides in relevant part 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). Judicial review of the ALJ’s decision is

limited to determining whether the ALJ’s findings are supported by substantial

evidence or based upon legal error. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir.

2000); Stevenson v. Chater, 105 F.3d 1151, 1153 (7th Cir. 1997). Substantial

evidence is “such relevant evidence as a reasonable mind might accept as adequate

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to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Skinner v.

Astrue, 478 F.3d 836, 841 (7th Cir. 2007). This Court may not substitute its

judgment for that of the Commissioner by reevaluating facts, reweighing evidence,

resolving conflicts in evidence, or deciding questions of credibility. Skinner, 478

F.3d at 841.

The ALJ is not required to address “every piece of evidence or testimony in

the record, [but] the ALJ’s analysis must provide some glimpse into the reasoning

behind her decision to deny benefits.” Zurawski v. Halter, 245 F.3d 881, 889 (7th

Cir. 2001). In cases where the ALJ denies benefits to a claimant, “he must build an

accurate and logical bridge from the evidence to his conclusion.” Clifford, 227 F.3d

at 872. The ALJ “must at least minimally articulate the analysis for the evidence

with enough detail and clarity to permit meaningful appellate review.” Boiles v.

Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Murphy v. Astrue, 498 F.3d 630, 634

(7th Cir. 2007) (“An ALJ has a duty to fully develop the record before drawing any

conclusions, and must adequately articulate his analysis so that we can follow his

reasoning.”).

Where conflicting evidence would allow reasonable minds to differ, the

responsibility for determining whether a claimant is disabled falls upon the

Commissioner, not the court. Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990).

However, an ALJ may not “select and discuss only that evidence that favors his

ultimate conclusion,” but must instead consider all relevant evidence. Herron v.

Shalala, 19 F.3d 329, 333 (7th Cir. 1994).

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III. ANALYSIS

Rinaldi-Mishka argues that the ALJ decision was in error because the ALJ:

(1) incorrectly assessed Rinaldi-Mishka’s physical limitations in determining her

RFC, (2) improperly analyzed Rinaldi-Mishka’s credibility, and (3) rendered an

improper Step Two analysis of the claimant’s mental impairments.

A. Physical Limitations and RFC

1. Treating Physicians

Rinaldi-Mishka first argues that the ALJ failed to give proper (and

controlling) weight to the opinions of three treating physicians: Drs. Alawad,

Cooper, and Hirsen. The ALJ “must offer good reasons for discounting the opinion of

a treating physician.” Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011). Even if the

decision includes sound reasons for refusing to give the treating physicians’

assessment controlling weight, “the ALJ still would have been required to

determine what value the assessment did merit.” Id. The regulations require

consideration of the “length, nature, and extent of the treatment relationship,

frequency of examination, the physician’s specialty, the types of tests performed,

and the consistency and supportability of the physician’s opinion.” Id. As an initial

matter, while Dr. Alawad began treating Rinaldi-Mishka in 2006, Dr. Cooper first

saw her in 2009 (and issued an RFC nine months later, in January 2010), while Dr.

Hirsen treated her in 2010 and issued an RFC at that same time. (R. 280, 452, 519.)

Thus the ALJ would be justified in according less weight to the latter two doctors’

opinions as compared to Dr. Alawad or to the opinions of other treating physicians

19
with a more extensive relationship with the claimant. Indeed, the ALJ noted the

brief treatment history with Dr. Hirsen, (R. 44), in rejecting his opinion.

The ALJ rejected Dr. Alawad’s conclusion of disability, which was based in

part on his indicating that the claimant could spend “no” time during an eight-hour

workday using her hands for fine manipulations, grasping objects, or reaching

overhead, (R. 388), a finding that the ALJ said was at odds with Rinaldi-Mishka’s

own testimony that she could write, zip, tie her shoes, and more. (R. 43.) The

claimant argues that this ignores the actual manner in which the daily activities

are carried out, and that sporadic activities are distinct from working a regular job.

(Pl.’s Br. at 12.) This is true. But the ALJ relied on the daily activities not to prove

that Rinaldi-Mishka could work a regular full-time job; rather, she relied on them

to show that Dr. Alawad’s RFC assessment did not deserve weight. And indeed, the

ability to write, zip, or tie one’s shoes—even sporadically—is in tension with the

assessment that she could spend “no” time using her hands and fingers during the

workday. In light of the deference owed to the ALJ’s determination, see Clifford, 227

F.3d at 869, an apparent overstatement like Dr. Alawad’s is sufficient to explain

why a treating physician’s opinion did not deserve any weight.

The ALJ rejected Dr. Cooper’s RFC assessment, which had been based on

findings of carpal tunnel and degenerative joint disease, because it was contrary to

“objective findings.” (R. 44.) These objective findings included a normal range of

motion in the elbow and wrist, normal nerve conduction, an EMG that did not show

radiculopathy, and 5/5 finger and hand grasp, (id.); as for the joint disease, the

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objective findings included full range of motion in the neck, no evidence of hip

arthritis, only early multi-level degenerative disc disease based on an MRI, and an

unremarkable x-ray of the lumbosacral spine. (Id.) Dr. Durudogan did diagnose

right arm radiculopathy, however, as well as right lateral epicondylitis (R. 311), and

the ALJ gave no indication of whether she credited his findings as a treating

physician. Dr. Fakhouri diagnosed right lateral epicondylitis and right carpal

tunnel as well. (R. 284.) Dr. Stogin also diagnosed right lateral epicondylitis and

noted the possibility of mild carpal tunnel. (R. 349.) All three of these treating

doctors’ diagnoses (which relate directly to the condition of Rinaldi-Mishka’s right

arm and wrist) went unmentioned by the ALJ. The ALJ could have weighed these

doctors’ opinions against the contrary evidence in the record, but the ALJ cannot

cursorily and misleadingly dismiss a treating doctor’s RFC assessment opinion

without some justification that holds up to even deferential review. See Clifford,

227 F.3d at 872. Furthermore, even the consulting physician, Dr. Biale, diagnosed

carpal tunnel syndrome. (R. 378.) The ALJ’s decision to accord no weight to Dr.

Cooper’s RFC assessment in this case was unsubstantiated and therefore in error.

The ALJ also rejected Dr. Hirsen’s RFC conclusion as lacking sufficient

explanation of the evidence relied upon in reaching it, particularly since “the

doctor’s own reports fail to reveal the type of significant clinical and laboratory

abnormalities one would expect if the claimant were in fact disabled.” (R. 44.) Dr.

Hirsen’s RFC discussion is brief, although that is common to many similar reports

in this area. In some cases, that would be insufficient to discount a treating

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physician’s opinion entirely. When the treater has a brief history with the patient,

as here—his RFC assessment was issued at the same time that he began seeing the

claimant, according to the record—however, the deference owed to his opinion by

the ALJ is substantially lowered. See Scott, 647 F.3d at 739. The ALJ relied in part

on this brief treating history in reaching her decision. (Id.) We therefore find no

error in the ALJ rejecting Dr. Hirsen’s opinion.

2. Non-Treating Physicians

Rinaldi-Mishka argues that the ALJ also erred in giving controlling weight to

the RFC assessments of two state agency reviewers. The ALJ accepted the opinions

of the two reviewers on the basis of their support in the objective evidence, other

evidence of record, and the opinions of Dr. Fakhouri and Dr. Lim that the claimant

could return to light work. (Id.) Yet as Rinaldi-Mishka points out, Dr. Fakhouri’s

opinion was that the claimant could return to “light duty work” shortly after she

had carpal tunnel surgery, (R. 282), which she chose not to undergo. Furthermore,

Dr. Fakhouri appeared to attach a different definition of “light work” than the one

used in the Social Security Regulations. In October 2006, he recommended that

Rinaldi-Mishka return to modified work activities, which he called “light duty

work,” but simultaneously restricted her to “no lifting, carrying, pulling or pushing

greater than 5 pounds.” (R. 284.) This is markedly different than the definitions

used in SSDI appeals; it appears that what Dr. Fakhouri prescribed would be a

version of sedentary work under our rules. See, e.g., SSR 83-10 (“The regulations

define sedentary work as involving lifting no more than 10 pounds at a time and

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occasionally lifting or carrying articles like docket files, ledgers, and small tools. . . .

The regulations define light work as lifting no more than 20 pounds at a time with

frequent lifting or carrying of objects weighing up to 10 pounds.”). The ALJ failed to

take this into account and, to compound matters, cited the doctor’s opinion as if it

supported the final conclusion. This is an error. See SSR 96-5p (“Adjudicators must

not assume that a medical source using terms such as ‘sedentary’ and ‘light’ is

aware of our definitions of these terms.”). Furthermore, Dr. Lim does not appear to

mention any return to work, much less a particular exertion level. (R. 408.) The ALJ

had no basis to rely on Drs. Fakhouri and Lim in concluding that the claimant could

return to light work.

Beyond the statements of Drs. Fakhouri and Lim, however, the ALJ pointed

to nothing beyond the generic “objective and other evidence of record” in support of

the consulting, non-treating physicians’ RFC conclusions. (R. 44.) This is precisely

the reason for the axiomatic rule that the ALJ “must at least minimally articulate”

her analysis to allow meaningful review. Boiles, 395 F.3d at 425. Without any

indication of the evidence the ALJ relied upon, we cannot say that her decision is

supported by “substantial evidence.” 42 U.S.C. § 405(g).

The ALJ had justifiable reasons to discount two of the three treating

physicians’ RFC assessments entirely, as described above, but she failed to

substantiate her decision to reject the assessment of Dr. Cooper and she offered no

justifiable reasons for relying upon the non-treating physicians’ assessments of the

claimant’s physical capabilities. These errors must be remedied upon remand.

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B. Credibility

Rinaldi-Mishka argues that the ALJ erred in finding that her claims of

impairment were not credible. An ALJ’s credibility determination receives

substantial deference on review unless it is patently wrong and not supported by

the record. Schmidt v. Astrue, 496 F.3d 833, 843 (7th Cir. 2007); Jens v. Barnhart,

347 F.3d 209, 213 (7th Cir. 2003). The ALJ must give specific reasons for

discrediting a claimant’s testimony, however, and the reasons must find support in

the record and be “sufficiently specific to make clear to the individual and to any

subsequent reviewers the weight the adjudicator gave to the individual’s statements

and the reasons for that weight.” Zurawski, 245 F.3d at 887-88. In this case, the

ALJ offers a variety of reasons for finding a lack of credibility, but none of them

meet the standard required for deference.

As an initial matter, the ALJ’s credibility determination found that RinaldiMishka’s impairments “could reasonably be expected to cause some of the alleged

symptoms; however, the claimant’s statements concerning the intensity, persistence

and limiting effects of these symptoms are not credible to the extent they are

inconsistent with the above residual functional capacity assessment.” (R. 43.) This

boilerplate credibility template has been criticized by the Seventh Circuit as failing

to indicate “in a meaningful, reviewable way . . . the specific evidence the ALJ

considered in determining that claimant’s complaints were not credible.” Bjornson

v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012). More troubling still is that the template

“implies that the ability to work is determined first and is then used to determine

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the claimant’s credibility.” Id. at 645. Such an inverted approach violates the rule

that a claimant’s statements about the intensity and persistence of pain or other

symptoms cannot be disregarded solely because they are not substantiated by

objective medical evidence. Id. at 646 (citing SSR 96-7p). The claimant’s credibility

must be factored into the RFC determination, not result from it.

The ALJ cited the following reasons for finding Rinaldi-Mishka not credible

in this case: her workers’ compensation claim, which she settled; her work for one

hour per day from the onset date through 2008; her decision to forgo carpal tunnel

surgery and rely only on physical therapy and medication for her carpal tunnel

syndrome; her rating of her pain as a six on a 1-10 scale; her testimony that she

could walk four to six blocks; and her statement to her treating physician in 2008

that she was looking for a job. (R. 44-45.) When assessing the credibility of an

individual’s statements about symptoms and their functional effects, an ALJ must

consider all of the evidence in the case record. See SSR 96-7p.1

 “This includes . . .

the individual’s own statements about the symptoms, any statements and other

information provided by treating or examining physicians or psychologists . . . and

any other relevant evidence in the case record.” Id. at *1. We review the stated

reasons in turn.

The ALJ offered no reason why a settled workers compensation claim is a

reason to discount the claimant’s credibility, and none is readily apparent, at least

1

 Interpretive rules, such as Social Security Regulations (“SSR”), do not have force of

law but are binding on all components of the Agency. 20 C.F.R. § 402.35(b)(1); accord Lauer

v. Apfel, 169 F.3d 489, 492 (7th Cir. 1999).

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not to this Court. As Rinaldi-Mishka points out in her brief, settling for a

substantial sum could conceivably be a boon to her credibility, since it suggests a

serious injury. (Pl.’s Br. at 15.) The ALJ did not elaborate. Nor did the ALJ explain

why pain that ranked a six on a 1-10 scale offered any insight into the claimant’s

credibility. We need not hypothesize on the ALJ’s behalf; she must at least

minimally articulate her reasons, and did not do so here.

As for Rinaldi-Mishka’s past job and desire for employment, the ALJ offered

no indication why the claimant’s previous work of one hour per day weighs against

her credibility. The question in this case is whether the claimant could return to a

normal work week; again, if anything, her limited work schedule could help her

credibility by suggesting that she is unable to work more than an hour per day.

Rinaldi-Mishka also argues, persuasively, that the ALJ improperly took into

account that the claimant told her physician that she was looking for a job. A

claimant’s ability to hold a job, desire to return to a job, or loss of a job for nondisability-related reasons does not disprove disability; the ALJ may consider it, but

must also probe the claimant’s capacity before finding that the claimant is capable

of the previous work. Henderson v. Barnhart, 349 F.3d 434, 435-36 (7th Cir. 2003).

A claimant’s “mere ‘determination’ to work, without more, was not a proper basis

for undercutting her credibility.” Anderson v. Astrue, No. 09 C 2399, 2011 WL

5244358, at *2 (N.D. Ill. Nov. 2, 2011) (citing Bartell v. Cohen, 445 F.2d 80, 82 (7th

Cir. 1971)). The claimant gave no indication that she believed she could do her prior

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work, or any other particular work, and therefore her bare statement that she was

looking for work should not undercut her credibility in applying for benefits.

Another factor that the ALJ cited was Rinaldi-Mishka’s failure to get surgery

to treat her carpal tunnel syndrome. Generally, we would credit the ALJ’s

determination that the claimant failed to pursue treatment with sufficient vigor.

The claimant testified that she feared surgery could make the problem worse “at my

age,” based on the experience of her mother-in-law and a coworker’s mother, who

both had similar surgeries and saw their problems remain if not worsen. (R. 73.)

This is neither inherently reasonable or unreasonable. Yet the ALJ made no

mention of the claimant’s rationale—and that is a problem. Moreover, the objective

record included the recommendation from Dr. Stogin that surgery would not be

prudent, (R. 349); the ALJ again did not even mention this seemingly relevant piece

of evidence. It remains undeniable that the claimant did not get surgery, even in

the face of two doctors suggesting she should; we make no determination whether

this is sufficient to discredit the claimant’s testimony, but strongly suggest that the

ALJ remedy this potential deficiency on remand by clearly articulating why this

choice casts doubt on the claimant’s credibility.

The ALJ also found that the claimant’s testimony of her limitations was

disproportionate to the objective findings. Yet this logic rests first on a

misstatement of what the claimant actually said in her testimony and second on a

list of daily activities that appear to have nothing to do with the ability to work at

the jobs at issue here. As for the first: the ALJ said, “Testimony of sitting for 15

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minutes is not supported by any findings,” and cited medical evidence of record. (R.

45.) In her testimony, the claimant actually made two relevant statements: “Sitting,

like right now, I need to constantly be shifting every 15 to 20 minutes,” (R. 63); “[if I

had returned to work for an eight-hour day] I don’t believe that they would have

allowed me to have my restrictions of the 15 to 20 minutes per hour.” (R. 68.)

Nowhere did Rinaldi-Mishka say that she could only sit for fifteen minutes per

hour. The ALJ misstated the claimant’s testimony as only being able to sit for

fifteen minutes, then used the misstatement against her. As to the second category:

the ALJ noted the claimant’s daily activities were not limited to the extent one

would expect. Yet the daily activities included only sporadic events (like three hour

field trips, which the claimant clarified required just watching the children but

“nothing physical,” (R. 66)) and very brief activities (like tying shoes or zipping

zippers). The ALJ did not even minimally articulate why these activities are

inconsistent with the medical evidence of record and we accord no deference to her

determination.

Finally, the ALJ noted the possibility that Rinaldi-Mishka’s treating

physicians may have formed their opinions out of sympathy for her as their patient,

or worse, that the claimant herself may have badgered those physicians into a

helpful note or report for the purposes of her application. (R. 44.) But the ALJ adds

that “[while] it is difficult to confirm the presence of such motives, they are more

likely in situations where the opinion in question departs substantially from the

rest of the evidence of record, as in the current case.” (Id.) In other words, the only

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proof of such discrediting behavior is the medical record itself. This circular

commentary renders the “possibility” of the presence of “such motives” meaningless:

the ALJ offers no proof other than the proof relied upon for the overall credibility

assessment. Such unsubstantiated comments offer no insight into the claimant’s

credibility and we need not weigh them further.

The ALJ offered several factors that could bear on the claimant’s credibility,

but only in one did she even arguably offer the minimal showing necessary to be

accorded deference on her findings. On the whole, we find the credibility analysis

sorely lacking in specificity and clarity, and this must be remedied on remand.

C. Mental Impairments

In assessing a claimant’s mental limitations, the ALJ must follow the

procedure known as the “special technique.” 20 C.F.R. § 404.1520a. Once the ALJ

determines whether the claimant has a medically determinable mental impairment,

she must document that finding and rate the degree of functional limitation in four

areas: activities of daily living; social functioning; concentration, persistence or

pace; and episodes of decompensation. Pepper v. Colvin, 712 F.3d 351, 365 (7th Cir.

2013) (citing 20 C.F.R. § 404.1520a(c)(3)). The ALJ rates each of the first three

functional areas on a five-point scale (none, mild, moderate, marked, and extreme)

and the last area on a four-point scale (one, two, three, and four or more). Id. The

ratings correspond to levels of severity; if the impairment is considered severe, the

ALJ must determine whether it meets or is equivalent to a listed mental disorder;

and if it neither meets nor is equivalent to a listing, the ALJ incorporates the

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mental limitations into the claimant’s RFC at step four. Pepper, 712 F.3d at 365-66

(citing 20 C.F.R. § 404.1520a(d)(1)-(3)). The decision must “adequately discuss the

significant history. . . examination and laboratory findings, and the functional

limitations” relied upon and include “a specific finding as to the degree of limitation

in each of the functional areas.” Id. at 365 (citing 20 C.F.R. § 404.1520a(e)(4)). In

other words, the ALJ must properly document the use of the special technique. Id.

Rinaldi-Mishka does not argue that the ALJ got it wrong, but merely that the

ALJ failed to properly document her findings and thereby build the “logical bridge”

between the evidence and the conclusion. The ALJ did conclude that the claimant’s

limitations were mild in each of the first three functional areas and that she had

had no episodes of decompensation. (R. 38-39.) This supported to the ALJ’s finding

that the mental impairments were non-severe. (Id.) In the RFC determination, the

ALJ reported that Dr. Buch found the claimant to relate well, behave appropriately,

concentrate and pay attention well, and exhibit average memory. (R. 42.)

Nevertheless, she was diagnosed with anxiety disorder and depressive features.

(Id.) Another reviewing doctor found her to have anxiety and affective disorders, but

found them non-severe, as the ALJ noted. (Id.) Indeed, the ALJ made mention of

the limited evidence of the claimant’s mental limitations, and the lack of a lengthier

justification of the findings at step two can be ascribed at least in part to the lack of

evidence. The claimant’s failure to point to any missing evidence—and to rely

entirely on the conclusory nature of the ALJ’s determination—underscores this

point. “[U]nder some circumstances, the failure to explicitly use the special

30
technique may . . . be harmless error.” Pepper, 712 F.3d at 366 (citing Craft v.

Astrue, 539 F.3d 668, 675 (7th Cir. 2008)). This is such a circumstance. The

claimant has not demonstrated that any error by the ALJ would have changed the

outcome of the case. See Shramek v. Apfel, 226 F.3d 809, 814 (7th Cir. 2000).

CONCLUSION

For the foregoing reasons, Plaintiff Antonietta Rinaldi-Mishka’s motion for

summary judgment [Doc. No. 14] is granted in part and denied in part. The Court

finds that this matter should be remanded to the Commissioner for further

proceedings consistent with this order.

SO ORDERED. ENTERED:

 

DATE: ___July 8, 2013______ ___________________________

HON. MARIA VALDEZ

United States Magistrate Judge

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