1 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

SHANNON ANKNEY, 

 Plaintiff, 

 v. 

CAROLYN W. COLVIN, Acting 

Commissioner, Social Security 

Administration,1 

 Defendant. 

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No. 12 CV 1841 

Magistrate Judge Young B. Kim 

August 1, 2013 

 

MEMORANDUM OPINION and ORDER

 Shannon Marie Ankney seeks disability insurance benefits (“DIB”) and 

Supplemental Security Income (“SSI”) on the basis of her claim that she is unable to 

work because of numerous emotional and physical impairments. After her 

application was denied by the Commissioner of the Social Security Administration 

(“Commissioner”), Ankney filed this suit seeking judicial review. See 42 U.S.C. 

§ 405(g). Currently before the court is Ankney’s motion for summary judgment 

seeking reversal of the Commissioner’s decision, and the Commissioner’s crossmotion for summary judgment seeking affirmation of its decision. For the following 

reasons, Ankney’s motion is granted and the Commissioner’s cross-motion is denied:

 

 

1 Pursuant to Federal Rule of Civil Procedure 25(d), Carolyn W. Colvin—who 

became the Acting Commissioner of Social Security on February 14, 2013—is 

automatically substituted as the named defendant. 
2 

Procedural History

 Ankney applied for DIB and SSI on July 1, 2008, claiming that she became 

unable to work on February 1, 2008. (Administrative Record (“A.R.”) 165-69.) After 

her claims were denied initially and upon reconsideration, (id. at 73-80), Ankney 

sought and was granted a hearing before an administrative law judge (“ALJ”), (id. 

at 83-87). The ALJ held a hearing on October 21, 2010, at which Ankney and a 

vocational expert (“VE”) provided testimony. (Id. at 28-70.) On November 15, 2010, 

the ALJ issued a decision finding that Ankney is not disabled within the meaning of 

the Social Security Act and denying her benefits. (Id. at 9-23.) When the Appeals 

Council denied her request for review, (id. at 1-3), the ALJ’s denial of benefits 

became the final decision of the Commissioner, see O’Connor-Spinner v. Astrue, 627 

F.3d 614, 618 (7th Cir. 2010). On March 3, 2012, Ankney filed the current suit 

seeking judicial review of the Commissioner’s decision. See 42 U.S.C. § 405(g). The 

parties have consented to the jurisdiction of this court. See 28 U.S.C. § 636(c). 

Facts 

 Ankney, who currently is 32 years old and the mother of one daughter, has a 

long history of drug abuse and emotional problems (anxiety, depression, bipolar 

disorder, and attention deficit hyperactivity disorder (“ADHD”)), as well as physical 

pain stemming from a car crash in 2008 (fractured shoulders and a broken ankle, 

among other injuries). She does not have a driver’s license or a car and has not held 

a job since 2008. She stopped attending school regularly after the eighth grade. 

She reads at a fifth-grade level and has an IQ of 75. Ankney claims that she is 
3 

unable to work on account of her medical and emotional problems. At the hearing 

before an ALJ, Ankney presented both documentary and testimonial evidence in 

support of her claim. 

A. Medical Evidence 

1. Mental Health Treatment 

 The medical record begins in January 2008 when Ankney arrived at a 

Michigan emergency room seeking help for drug addiction. (A.R. 252-57.) Medical 

personnel transferred her to the hospital’s addictions unit, at which point Dr. David 

Guffey performed a psychiatric evaluation. (Id. at 244-47.) During this evaluation, 

Ankney admitted to a seven-year addiction to Vicodin and Lortab and to daily use of 

marijuana. (Id. at 244.) She confided to Dr. Guffey that her mother is a drug 

addict, that her father is a recovering alcoholic, that her family has a strong history 

of mental illness, and that she too has suffered from depression since 2002. (Id. at 

244-45.) She also explained to Dr. Guffey that her mother was jailed when she was 

5 years old, that she ran away from home when she was 13 years old and lived on 

the street at times, and that her home life was so chaotic that she did not take 

school seriously. (Id. at 245.) Dr. Guffey noted Ankney’s withdrawal symptoms of 

sweating, chills, nausea, and poor appetite and sleep. (Id. at 246.) At the same 

time, he noted that she was well-groomed, cooperative, pleasant, coherent, alert, 

euthymic (non-depressed), and in no acute distress. (Id.) Ankney stayed at the 

addictions unit for three days. (Id. at 249.) Upon discharge, medical staff noted 

that she was awake, alert, and cooperative, but anxious. (Id.) 
4 

 After her discharge, Ankney received medication and periodic check-ups from 

Nurse Practitioner Susan Michalowski. Nurse Michalowski administered a 

psychiatric evaluation, during which Ankney admitted to having had suicidal 

thoughts and to having attempted suicide. (Id. at 265.) She reported feeling 

anxious, panicky, sad, angry, irritable, unable to sleep, and to having low selfesteem. (Id. at 264.) She also admitted to breaking into homes as an adolescent to 

support her marijuana habit and to cashing a fake check in 2001, both of which led 

to her arrest. (Id. at 267.) Her diagnoses were listed as major depression, panic 

disorder, opioid dependency in partial remission, antisocial personality traits, and 

possible bipolar disorder. (Id. at 271.) Over the course of the next year or so, Nurse 

Michalowski prescribed a number of different medications to help alleviate 

Ankney’s symptoms, including Zyprexa, Seroquel, Clonidine, Ambien, and Lamictal. 

(Id. at 258-63, 300-02.) 

 Dr. Robert Fabiano evaluated Ankney in August 2008 and completed a full 

psychological report. (Id. at 272-75.) He found her to be punctual and well-groomed 

but also depressed, anxious, and with limited conversational skills. (Id. at 272.) He 

noted poor eye contact, poor self-confidence, and a blunted affect. (Id.) A full 

spectrum of clinical testing revealed an IQ of 75 and “significant limitations across 

all areas of intellectual functioning.” (Id. at 273.) His diagnostic impressions were 

bipolar disorder, ADHD, borderline intellectual functioning, psychological stressors, 
5 

and a Global Assessment of Function (“GAF”) score of 50.2 (Id. at 275.) Dr. Fabiano 

noted that Ankney “will perform best with tasks which are relatively simple and 

repetitive.” (Id.) He recommended cognitive-behavioral therapy to increase her 

productive behavior as she demonstrated a “significant degree of dependency and 

very limited feelings of self-confidence and self-worth.” (Id. at 274-75.) 

 The State of Michigan Department of Social Services authorized Dr. Steve 

Geiger to evaluate Ankney on September 3, 2008. (Id. at 276-80.) Ankney reported 

to Dr. Geiger that she was addicted to opiates, Vicodin, morphine, and Demerol. 

(Id. at 277.) She also stated she never had a problem with alcohol or marijuana, 

although she confided that she “skipped school to smoke weed.” (Id.) Ankney 

denied ever attempting suicide, although she admitted to suicidal ideation. (Id.) 

She reported difficulties with sleeping and eating, fatigue, panic attacks, problems 

with her concentration and memory, a loss of interest in life activities, and feelings 

of hopelessness, worthlessness, and guilt. (Id.) Dr. Geiger observed Ankney “to be 

depressed, anxious, angry and emotionally flat,” although she also appeared to have 

good contact with reality. (Id. at 278-79.) He diagnosed her as having a mood 

disorder NOS (not otherwise specified), a panic disorder without agoraphobia, 

opioid dependence (early full remission), and antisocial traits. (Id.) He also noted 

 

2 The GAF scale ranges from zero to 100 and is a measure of an individual’s 

“psychological, social and occupational functioning on a hypothetical continuum of 

mental health-illness.” American Psychiatric Association, Diagnostic and 

Statistical Manual of Mental Disorders 34 (4th ed, Text Rev. 2000) (“DSM-IV-TR”). 

A GAF score of 41-50 indicates “[s]erious symptoms (e.g., suicidal ideation, severe 

obsessional rituals, frequent shoplifting) OR any serious impairment in social, 

occupational, or school functioning (e.g., no friends, unable to keep a job).” DSM-IVTR at 34.
6 

that he needed to rule out ADHD and OCD. (Id.) He listed her prognosis as 

guarded and assigned a GAF score of 53.3 (Id.) 

 Also in September 2008, non-examining state agency psychologist 

Dr. Leonard Balunas completed a Psychiatric Review Technique form based on the 

reports of Dr. Geiger and Dr. Fabiano. (Id. at 282-99.) Based on these reports, 

Dr. Balunas concluded that Ankney has a mood disorder, an anxiety-related 

disorder, and a substance abuse disorder. (Id. at 282.) He opined that she has a 

mild limitation in performing activities of daily living and maintaining social 

functioning, and in understanding and remembering detailed instructions. (Id. at 

292, 296.) He found moderate limitations in maintaining concentration, 

persistence, or pace, and in the ability to respond appropriately to changes in the 

work setting. (Id.) Otherwise, he did not find her to be significantly limited in any 

areas. (Id.) In sum, he found that Ankney “is able to perform unskilled work 

involving 1 and 2 step instructions with limited need for sustained concentration 

and only occasional changes in the work setting.” (Id. at 298.) 

 The following month, in October 2008, Ankney sustained serious injuries 

from a car accident, including fractured shoulders, damage to her knee, a broken 

ankle requiring stabilizing pins and screws, and a brain hemorrhage. The medical 

record does not contain treatment notes from the actual hospital stay. Information 

 

3

 A GAF score of 51-60 indicates “[m]oderate symptoms (e.g. flat affect and 

circumstantial speech, occasional panic attacks) OR moderate difficulty in social, 

occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers).” DSM-IV-TR at 34.
7 

about the accident comes from comments Ankney made to mental health 

professionals that were memorialized in their notes. 

 Several months after the car accident, in 2009, Ankney relocated from 

Michigan to Chicago and sought treatment at Northwestern University Hospital’s 

outpatient clinic. She found her way to the clinic on her own after running out of 

some of her medications. (Id. at 392.) Dr. Sajoy Varghese performed an initial 

assessment and listed as a “precipitating factor” Ankney’s “[n]on-compliance with 

medications” and “[p]sycho stimulant abuse induced mood lability, questionable 

substance abuse.” (Id. at 397.) He listed as a “perpetuating” factor the 

“[c]ontinuous non-compliance [v]ersus abuse of medications.” (Id.) He found her to 

have the capacity to make a reasoned decision about her treatment, and he 

discredited her account of a suicide attempt as “inconsistent.” (Id.) As for her mood 

at the time of the evaluation, he found her to be “calm, pleasant, cooperative, 

reporting anxiety attacks but does not appear restless, diaphoretic or tremulous.” 

(Id.) She was not suicidal; to the contrary she was “future oriented and looking 

forward to starting a new chapter in her life with her boyfriend in Chicago.” (Id.) 

His diagnoses included mood disorder NOS, possible bipolar II disorder, and 

possible stimulant abuse. (Id.) Dr. Varghese then prescribed Prozac, Neurontin, 

Zoloft, Lithium, Seroquel, and Adderall. (Id. at 395.) 

 Beginning in October 2009, Dr. Elizabeth McIlduff became Ankney’s primary 

medication management doctor. Over the ensuing months, Dr. McIlduff tried 

different medications to address Ankney’s symptoms and on occasion discontinued 
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medications where they were ineffective or had intolerable side effects. (Id. at 380, 

386.) Dr. McIlduff strongly advised Ankney to enlist in weekly therapy sessions, as 

opposed to only checking in monthly for medication checks, because she felt several 

of Ankney’s symptoms “appear[ed] to be personality based.” (Id. at 371.) Ankney 

reported that she had no side effects from her psychiatric medications and felt she 

was responding well to them. (Id.) 

 In May 2010, Dr. McIlduff issued a “Final Report” (although she continued to 

treat Ankney), in which she reported that Ankney complained of trouble sleeping, 

panic attacks, trouble concentrating, and racing/negative thoughts, but that she had 

better impulse control, was less agitated, and expressed an interest in starting 

therapy. (Id. at 361-62.) She was well-groomed, cooperative with good eye contact, 

and displayed normal speech and movement. (Id. at 361.) In June 2010, Dr. 

McIlduff performed an annual assessment, noting complaints of anxiety, 

depression, poor impulse control, and antisocial traits. (Id. at 357.) Ankney also 

expressed disgust with her appearance and said she spends much of the day trying 

to cover her face with make-up. (Id. at 358.) The report lists the diagnoses of 

bipolar type II, panic disorder, possible body dysmorphic disorder, OCD, ADHD, and 

possible post-traumatic stress disorder, and a GAF score of 60. (Id. at 359.) 

 Ankney checked in with Dr. McIlduff once a month during the summer of 

2010, and the treatment notes from these visits reflect good days and bad days. (Id. 

at 324-60.) Sometimes Ankney complained of panic attacks, feeling “awful,” and 

wanting people to leave her alone. (Id. at 331.) Other times, she stated that her 
9 

mood had improved since her last visit, that she had no depressive symptoms, and 

that she had no side effects from her medications. (Id. at 341.) Her GAF score in 

August 2010 was 50. (Id. at 343.) In September 2010 a therapist was assigned to 

work with her, (id. at 333), although Ankney expressed an inability to start therapy 

until the following month because of transportation problems. (Id. at 325, 333.) 

 Dr. McIlduff completed a Mental Residual Functional Capacity 

Questionnaire in September 2010. (Id. at 320-23.) She noted that she had seen 

Ankney every four to six weeks for medication management for almost a year. She 

provided the following diagnoses: bipolar type II, generalized anxiety disorder with 

panic attacks, and possible ADHD. (Id. at 320.) She also listed chronic pain, 

unemployment, relationship stress, and limited social support as other stressors. 

(Id.) She assigned a GAF score of 50. (Id.) Dr. McIlduff noted that Ankney’s “mood 

has become more stable with treatment with less anger outbursts and no suicidal 

thoughts.” (Id. at 320.) She noted that Ankney continues “to suffer from poor sleep 

(1-5 hours a night), irritability, anxiety, and panic attacks.” (Id.) Dr. McIlduff 

noted that Ankney’s lack of sleep “can exacerbate [the] perception of physical pain.” 

(Id. at 322.) For a prognosis, Dr. McIlduff stated: “Bipolar Disorder is a chronic, 

episodic illness which will require life-long treatment.” (Id. at 321.) She found a 

marked restriction in Ankney’s activities of daily living, social functioning, and 

concentration, persistence, and pace. She opined that Ankney would be absent from 

work more than four days per month because of her mental health problems. (Id. at 

322.) 
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2. Pain Treatment 

 In February 2010, Ankney saw Dr. Carlos Smith, a podiatrist, complaining of 

shooting pain in the talus of her left foot and wanting to have the surgical screws in 

her ankle removed. (Id. at 316.) Dr. Smith noted that “the severity of the condition 

is moderate.” (Id.) He further noted +1/5 edema in her left foot, as well as painful 

hardware in the left foot and painful arthralgia in the subtalar joint. (Id. at 317.) 

Surgery was discussed, as well as possible surgical outcomes. (Id.) 

 In March 2010 Ankney sought treatment from a different podiatrist, Dr. 

Malcolm Herzog. At the first of six appointments with Dr. Herzog, Ankney 

described the specifics of her 2008 car crash and complained of shooting pain in her 

ankle, back, and shoulder. (Id. at 430.) She stated she could only walk 200 feet 

before needing to rest. (Id.) Dr. Herzog opined that Ankney suffers from 

progressive post-traumatic arthritis that might require a joint fusion and likely will 

cause chronic pain. (Id. at 431.) Dr. Herzog also sent Ankney for an MRI of her 

ankle and mid-tarsus. The physician interpreting the MRI scan reported that 

“[a]lthough the visual findings are limited, the ankle mortis reveals no progressive 

degenerative arthritic changes, no osteochondrial lesion, and no narrowing of the 

joint space.” (Id. at 434.) The physician also reported that, “[t]he subchondrial bone 

plate of the calcaneus reveals very significant sclerosis at the posterior facet raising 

suspicion of early developing post traumatic degenerative osteoarthropathy of the 

subtalar joint.” (Id. at 434-35.) 
11 

 In May 2010 Ankney saw pain specialist Dr. Xavier Pareja for treatment of 

pain in her lower back, left shoulder, right knee cap, and left foot. (Id. at 419-21.) 

Dr. Pareja described Ankney as “well developed, well nourished, [and] in no acute 

distress.” (Id. at 420.) During the physical exam, Dr. Pareja noted that Ankney’s 

right shoulder, right knee, and back were tender to the touch but that her range of 

motion and flexion were good. (Id.) He ordered an MRI of her lumbar spine and 

thoracic spine. (Id. at 420, 422-23.) The MRI of her thoracic spine showed no 

abnormalities, while her lumbar spine scan revealed a protrusion at L5/S1, and her 

shoulder evidenced mild degeneration of the acromioclavicular joint. (Id. at 422-24.) 

Ankney had two follow-up visits with Dr. Pareja, during which he prescribed 

various medications to address her complaints of pain. (Id. at 414-18.) 

 In May, June, July, and October 2010, Dr. Herzog met with Ankney to 

discuss her pain and her appointments with Dr. Pareja. (Id. at 432-33.) Ultimately, 

Dr. Herzog told her that she would never be in as good condition as she was prior to 

her accident and that in his opinion “she will continue to develop a more severe post 

traumatic arthritis which is progressive in nature, in her foot and ankle, which 

could again potentially lead to an ankle fusion in the future.” (Id. at 433.) He 

concluded that “it is my opinion and belief that the patient is disabled to the extent 

where she cannot work and she has great difficulties in carrying out her normal day 

to day activities. In addition, the patient is suffering [from] post traumatic arthritis 

of the left foot and ankle. There is a high probability that the patient will require 

an ankle fusion in the future. I recommend permanent disability.” (Id.) Dr. Herzog 
12 

also completed a Medical Source Assessment in which he rated her prognosis as 

“poor.” (Id. at 426.) He found her incapable of even a “low stress” job and unable to 

walk even a block without severe pain. (Id. at 427.) He believed she only has “bad” 

days and that she “is unable to work in any job currently and her condition will 

worsen with time.” (Id. at 428-29.) 

B. Ankney’s Testimony

 At the hearing, Ankney described the nature of her physical and emotional 

problems and their limiting effects, as well as her troubled childhood and legal 

difficulties. (Id. at 34-37.) She testified that she has had only part-time work as a 

waitress or bartender. (Id. at 38.) Her most recent job in 2008 ended when she 

blacked out as a result of her bipolar medications. (Id. at 38, 41.) She described 

taking Zoloft for depression back in 2003 and then seeking out a medical 

professional after her car accident to help her with her bipolar disorder, ADHD, and 

insomnia. (Id. at 39-40.) She testified that the only condition she has under control 

now is her self-destructiveness. (Id. at 43.) She said that her foot is swollen and 

painful and needs to be stretched out. (Id. at 53.) She can only stand on her left 

foot for five minutes as she can feel the surgical pins pushing out and she testified 

that the pain is “excruciating.” (Id. at 54.) She was going to get the screws out and 

had checked into the hospital to do so, but then [Dr. Smith] called and cancelled the 

procedure. (Id. at 54-55.) She constantly needs to shift positions because of her 

back pain. (Id.) She does not like to take too much medication on account of her 

daughter. She takes just enough to take the edge off her pain and alleviate her 
13 

irritability. (Id. at 55-56.) She finds it difficult to carry more than a few pounds 

and cannot carry anything in her right hand because of her shoulder injury. (Id. at 

52-53.) She is depressed and described her day as “an emotional roller coaster” 

where she starts off happy but then progresses to sadness, depression, anger, pain, 

and sleeplessness. (Id.) Her appetite is poor. (Id. at 58.) She worries about her 

parents, has racing thoughts, has trouble getting along with others, and cannot 

bear people standing too close to her or “breath[ing] down [her] neck.” (Id. at 49, 

59.) She either has been fired from or has quit most of her jobs. (Id.) She does not 

socialize and relies on others to care for her daughter on weekends. (Id.) She has 

panic attacks several times a day and has trouble focusing to the point where she 

can barely help her daughter with her homework or play a game with her. (Id. at 

60-61.) Her physical pain also makes it hard to sit with her daughter for very long. 

(Id.) She does not have any hobbies and does not watch television. (Id. at 52.) She 

devotes much of her day, every day, to taking care of her apartment and her 

daughter. (Id. at 44-45.) She cooks simple meals and gets her daughter off to 

school, although the two-block walk to school is too far for her to go without 

stopping because of pain. (Id. at 46, 54.) She needs constant breaks when doing 

household chores such as cooking and laundry. (Id. at 63.) She only leaves her 

apartment to go to the doctor or to take her daughter to school. (Id. at 63-64.) 

C. The Vocational Expert’s Testimony 

 Richard Hamersma, Ph.D., testified regarding the kinds of jobs someone with 

certain hypothetical limitations could perform. (Id. at 65-70.) His hypothetical 
14 

assumed a younger individual with limited education and no past relevant work 

who could lift and carry no more than 20 pounds occasionally and 10 pounds 

frequently; could stand and walk about four hours in an eight-hour workday; could 

sit about six hours with normal rest periods; is unable to understand, remember or 

carry out detailed and complex job instructions; is unable to do work requiring 

intense focus and concentration for extended periods; can only have limited contact 

with the general public; and is moderately limited in her ability to respond to 

changes in the work setting. (Id. at 65-66.) With these limitations and parameters 

in mind, assuming a sedentary level of work, the VE testified that three jobs exist in 

significant numbers in the Chicago metropolitan area: hand packager, assembly 

positions, and inspection jobs. (Id. at 66.) Ankney’s attorney asked the VE to look 

at the reports of Dr. Herzog and Dr. McIlduff and opine as to whether the 

restrictions in those documents would affect the ability to do the suggested jobs. 

(Id.) The VE responded that the application of those restrictions would eliminate 

the suggested jobs. (Id. at 66-67.) The jobs also would be eliminated by the 

individual having panic attacks about three times a day. However, the suggested 

jobs do not require intense focus or concentration so that an individual with a lack 

of focus still could conceivably perform them. (Id. at 67.) The individual also could 

work while seated and stand as needed, provided the worker stays on task. (Id. at 

68-69.) 

 
15 

D. The ALJ’s Decision 

 The ALJ concluded that Ankney is not disabled under sections 216(i), 223(d), 

and 1614(a)(3)(A) of the Social Security Act. (Id. at 12.) In so finding, the ALJ 

applied the standard five-step sequence, see 20 C.F.R. § 404.1520(a)(4), which 

requires him to analyze: 

(1) whether the claimant is currently employed; (2) whether the 

claimant has a severe impairment; (3) whether the claimant’s 

impairment is one that the Commissioner considers conclusively 

disabling; (4) if the claimant does not have a conclusively disabling 

impairment, whether [s]he can perform [her] past relevant work; and 

(5) whether the claimant is capable of performing any work in the 

national economy. 

Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012). If at step three of this 

framework the ALJ finds that the claimant has a severe impairment that does not 

meet or equal one of the listings set forth by the Commissioner, he must “assess and 

make a finding about [the claimant’s] residual functional capacity based on all the 

relevant medical and other evidence.” 20 C.F.R. § 404.1520(e). The ALJ then uses 

the residual functional capacity (“RFC”) to determine at steps four and five whether 

the claimant can return to her past work or to different available work. Id. at 

§ 404.1520(f), (g). 

 Here, at step one of the analysis, the ALJ determined that Ankney met the 

insured status requirements through September 30, 2012, but that she has not 

engaged in substantial gainful activity since the application date of February 1, 

2008. (A.R. 14.) At step two, he found that she suffers from the following serious 

impairments: “affective disorder, anxiety related disorder, history of substance 
16 

abuse, and posttraumatic osteoarthritis of the left ankle status post open reduction 

with internal fixation.” (Id.) The ALJ noted that Ankney does have a small disc 

protrusion at the L5-S1 level of her lumbosacral spine, but he declined to classify it 

as a severe impairment. (Id.) At step three, the ALJ declined to find that Ankney 

has an impairment or combination of impairments that meet or medically equal one 

of the listed impairments. (Id. at 15.) At step four, he found that she has the RFC 

to perform light work, except that she “can only stand/walk for about four hours in 

an eight-hour workday; is unable to understand, remember, and carry out detailed 

and complex job instructions; is unsuited for work requiring intense focus and 

concentration for extended periods; i[s] moderately limited in the ability to respond 

appropriately to changes in the work setting; and is limited to only occasional 

contact with the general public.” (Id. at 16.) At step five, the ALJ adopted the VE’s 

testimony and found that Ankney’s RFC allows her to work as an assembler, hand 

packager, or inspector. (Id. at 22.) Accordingly, the ALJ concluded that Ankney is 

not under a disability as defined by the Social Security Act and denied her 

application for benefits. (Id. at 23.) 

Analysis

 In her motion for summary judgment, Ankney makes three challenges to the 

ALJ’s decision. First, she argues that the ALJ improperly discounted the opinions 

of Ankney’s treating physicians, Drs. Herzog and McIlduff. Second, she maintains 

that the ALJ erred in finding that she has the RFC to perform light work. Third, 

she contends that the ALJ improperly assessed her credibility. Of these challenges, 
17 

the court agrees with Ankney that the ALJ improperly discounted Dr. McIlduff’s 

opinion and that the RFC analysis fails to meet the substantial evidence standard. 

 This court’s role in disability cases is limited to reviewing whether the ALJ’s 

decision is supported by substantial evidence and is free of legal error. See Scheck 

v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2004). Substantial evidence is that which 

“a reasonable mind might accept as adequate to support a conclusion.” McKinzey v. 

Astrue, 641 F.3d 884, 889 (7th Cir. 2011) (quoting Richardson v. Perales, 402 U.S. 

389, 401 (1971)). The substantial evidence standard requires the ALJ to build a 

logical bridge between the evidence and his conclusion, but not necessarily to 

provide a thorough written evaluation of every piece of evidence in the record. See 

Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir. 2013). In asking whether the ALJ’s 

decision has adequate support, this court will not reweigh the evidence or substitute 

its own judgment for the ALJ’s. Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 

2012). The court must affirm the ALJ’s decision if reasonable minds could differ 

regarding whether the claimant is disabled. Schmidt v. Astrue, 496 F.3d 833, 842 

(7th Cir. 2007). But remand is warranted if the ALJ’s decision “lacks evidentiary 

support or is so poorly articulated as to prevent meaningful review.” Steele v. 

Barnhart, 290 F.3d 936, 940 (7th Cir. 2002). 

A. Dr. Herzog’s Opinion 

 The ALJ afforded Dr. Herzog’s opinion little weight and criticized his 

treatment notes as being “long on descriptions of the claimant’s reports of pain and 

his dire predictions of what would likely occur in the future but short on objective 
18 

findings.” (A.R. 21.) He further noted that Dr. Herzog served as Ankney’s treating 

podiatrist “for a relatively short period of time” prior to rendering his opinion. (Id.) 

Finally, he discounted Dr. Herzog’s conclusion that Ankney is “disabled to the 

extent where she cannot work” as an improper intrusion into the Commissioner’s 

realm. (Id. at 20-21.) Ankney now argues on appeal that the ALJ erroneously 

failed to give Dr. Herzog’s report controlling weight. 

 As a “treating source,” Dr. Herzog’s opinion is entitled to controlling weight, 

provided it is “well-supported by medically acceptable clinical and laboratory 

diagnostic techniques and is not inconsistent with the other substantial evidence” in 

[the] case record. See 20 C.F.R. § 404.1527(d)(2). An ALJ may discredit a treating 

source’s medical record, however, if it is internally inconsistent or inconsistent with 

the opinion of a consulting physician—provided the ALJ minimally articulates his 

reason for crediting or rejecting evidence of disability. Skarbek v. Barnhart, 390 

F.3d 500, 504 (7th Cir. 2004). A decision to deny controlling weight to a treating 

source’s opinion does not prevent the ALJ from considering it; the ALJ may still 

look to the opinion, even after opting to afford it less evidentiary weight. Exactly 

how much weight the ALJ affords depends on a number of factors, such as the 

length, nature, and extent of the physician’s and claimant’s treatment relationship, 

whether the physician supported his or her opinions with sufficient explanations, 

and whether the physician specializes in the medical conditions at issue. See 20 

C.F.R. § 404.1527(d)(2)(i)-(ii), (d)(3), (d)(5). 
19 

 In this case, Dr. Herzog saw Ankney six times over the seven-month period 

immediately preceding the hearing. (A.R. 430-33.) The ALJ articulated the short 

span of overall treatment time as one reason for minimizing the weight to be given 

to Dr. Herzog’s report, and this court finds no error here. During those seven 

months, Dr. Herzog saw Ankney monthly and took copious notes about her 

subjective complaints of pain. He also examined and x-rayed her ankle, referred 

her for an MRI and a nerve conduction study, and referred her to a pain specialist 

who independently prescribed pain medication. But critically, Dr. Herzog himself 

took no action aimed at actually treating Ankney’s ankle. As of the date of the 

hearing, Dr. Herzog had yet to remove the hardware from Ankney’s ankle,4 nor had 

he referred Ankney for physical therapy to strengthen and/or loosen her ankle. (Id. 

at 21.) Dr. Herzog suggested ankle fusion surgery as a possibility for the future, but 

this surgery also has not taken place. In other words, as of the date of the hearing, 

despite numerous office visits with Dr. Herzog, Ankney had yet to undergo a single 

physical therapy session or procedure aimed at alleviating the pain in her ankle. 

This fact, along with Dr. Herzog’s futuristic bent about what Ankney may require 

down the line, supports the ALJ’s conclusion that Dr. Herzog’s treating relationship 

with Ankney lacked sufficient longevity to merit controlling weight. See id. at § 

404.1527(d)(2)(i) (stating that “[w]hen the treating source has seen you a number of 

 

4 Dr. Herzog advised Ankney on two separate occasions that he could remove the 

screws from her ankle. (A.R. 431-32.) Ankney declined, although she indicated at 

the hearing that Dr. Herzog still promotes the surgery. (Id. at 43.) Ankney had no 

obligation to undergo surgery, but 20 C.F.R. § 416.930(a) makes clear that “[i]n 

order to get benefits, you must follow treatment prescribed by your physician if this 

treatment can restore your ability to work.” 
20 

times and long enough to have obtained a longitudinal picture of your impairment, 

we will give the source’s opinion more weight”). 

 The ALJ also found that Dr. Herzog’s treatment notes and medical 

assessment lacked support from objective medical findings. The court agrees. 

Dr. Herzog’s evaluation gives a primary diagnosis of post traumatic arthritis 

subtalor [sic] joint; post traumatic fracture left talus; and chronic bursitis, 

synovitis.” (A.R. 426.) His treatment notes reflect conversations with Ankney in 

which he told her that her post-traumatic arthritis would be progressive and 

permanent and would likely result in the need for an ankle fusion. (Id. at 431.) 

 However, the two podiatrists who read Ankney’s MRI opined that her MRI 

images raise a “suspicion of early developing posttraumatic degenerative” changes 

and that “continuing clinical and radiographic evaluation of the subtalar joint is 

necessary to determine the severity of the [degenerative joint disease].” (Id. at 435 

(emphasis added).) These are considerably more tempered finding than those 

proffered by Dr. Herzog. Similarly, while Ankney contends that the MRI findings 

show “a well-defined stress fracture involving the clinical aspect of the tibia,” the 

MRI report states that there is an “ill-defined” stress fracture. (A.R. 435; R. 24, Pl.’s 

Br. at 3.) Further, Dr. Carlos Smith—who examined Ankney in February of 2010 

and suggested surgery (which never happened) to remove the screws and pins—

limited the extent of his recommendations to those involving the hardware removal. 

As such, the record contains the findings of several other podiatrists who 

approached Ankney’s ankle with substantially less alarm than Dr. Herzog. 
21 

 Finally, even Dr. Herzog appeared unsure of his own diagnoses. His 

treatment notes exhaustively catalogue Ankney’s subjective complaints of pain, but 

in the final analysis his medical opinions are peppered with conjecture: “[Ankney] 

may require a joint fusion in the future,” (id. at 431 (emphasis added)), “it is likely 

that she would suffer from chronic pain,” (id. (emphasis added)), she “potentially 

could have nerve damage,” (id. (emphasis added)), it “appears her talus is 

collapsing,” (id. at 432 (emphasis added)). Dr. Herzog’s dire prognosis lacks 

certainty and does not find equal support in the medical record. See SSR 96-2p, 

1996 WL 374188 at * 2 (July 2, 1996) (“It is an error to give an opinion controlling 

weight simply because it is the opinion of a treating source if it is not wellsupported by medically acceptable clinical and laboratory diagnostic techniques . . . 

or other substantial evidence in the case record.”). 

 Nor does the court find error with the ALJ’s observation that Dr. Herzog’s 

report intrudes into the Commissioner’s decision-making power. The Social 

Security regulations at play here make clear that “[m]edical source opinions on 

issues reserved to the Commissioner,” such as opinions “that are dispositive of a 

case, i.e., that would direct the determination or decision of disability,” are not 

really medical opinions at all and are not entitled to consideration. 20 C.F.R. 

§ 404.1527(e). As the ALJ notes, Dr. Herzog was entitled to make determinations 

regarding the nature and severity of Ankney’s impairments, including whether they 

meet the requirements of any listings, but his determination that Ankney “is unable 

to work in any job currently” is akin to stating that she is disabled. (A.R. 429.) This 
22 

constitutes an intrusion into the ALJ’s domain and thus was a legitimate basis 

upon which the ALJ minimized the weight given to Dr. Herzog’s report. In sum, the 

ALJ had ample grounds on which to afford Dr. Herzog’s opinion lesser weight, and 

the court finds that he minimally articulated his reasons for doing so. See Clifford 

v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000) (stating that “an ALJ must ‘minimally 

articulate his reasons for crediting or rejecting evidence of disability’”) (citations 

omitted). 

B. Dr. McIlduff’s Opinion 

Dr. McIlduff’s Mental Residual Functional Capacity Questionnaire concluded 

that Ankney suffers marked restrictions in daily living, social functioning, and 

concentration, persistence, and pace and that, as a consequence, she would be 

absent from work four or more days a month. (A.R. 322.) Per the VE’s testimony, 

this number of absences would preclude employment. (Id. at 66-67.) The ALJ 

disagreed. After briefly summarizing some of Dr. McIlduff’s main findings, he 

concluded that upon “reviewing the entire record and observing the claimant, the 

undersigned disagrees with Dr. McIlduff and accords her opinion little weight.” 

(Id.) The ALJ then went on to similarly summarize Dr. Balunas’s opinion (that 

Ankney is capable of unskilled work involving one and two-step instructions) and to 

then accord it “great weight” based “on the entire record and observing the 

claimant.” (Id. at 21.) Ankney contends that the ALJ erred in failing to accord 

Dr. McIlduff’s opinion controlling weight. The Commissioner counters that the ALJ 

reasonably adopted Dr. Balunas’s report over Dr. McIlduff’s. 
23 

 As stated above with regard to Dr. Herzog, a treating source opinion is 

entitled to controlling weight, provided it is well-supported by “medically acceptable 

clinical and laboratory diagnostic techniques and is not inconsistent with the other 

substantial evidence” in the case record. See 20 C.F.R. § 404.1527(d)(2). 

Dr. McIlduff qualifies as a treating source—she saw Ankney more or less monthly 

over the course of a year. Still, the ALJ was entitled to discount Dr. McIlduff’s 

medical opinion, provided he offered “good reasons” for doing so. See Punzio v. 

Astrue, 630 F.3d 704, 710 (7th Cir. 2011). In this case, however, the ALJ did not 

offer any concrete reasons for rejecting Dr. McIlduff’s opinion in favor of the 

findings of a non-treating and non-examining psychologist, Dr. Balunas. The ALJ 

did not minimally examine the length, nature, and extent of the treatment 

relationship, see 20 C.F.R. § 404.1527(d)(2)(i)-(ii), nor did he discuss whether Dr. 

McIlduff supported her opinions with sufficient explanations, see id. at 

§ 404.1527(d)(3); see also Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010) (finding 

that “[e]ven if the ALJ had articulated good reasons for rejecting [the treating 

source’s] opinion, it still would have been necessary to determine what weight his 

opinion was due under the applicable regulations”). Here, the ALJ did not describe 

or explain what he observed about Ankney during the hearing that affected his 

decision, gave him cause to discount Dr. McIlduff, or inclined him to adopt Dr. 

Balunas’s report instead. He did not articulate what components of “the entire 

record” he found determinative. He did not specifically analyze any of the other 
24 

examining psychologists’ reports, including those of Dr. Fabiano, Dr. Geiger, or Dr. 

Varghese, for purposes of minimizing Dr. McIlduff’s opinions. 

 The problem with the ALJ’s generalized determination as it pertains to 

Dr. McIlduff is that it provides the court with little to grasp. Five psychologists 

examined Ankney, but the ALJ only gave weight to the one non-examining 

psychologist, and he did so without providing the court with any insight into this 

decision. See Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003) (holding that 

“[a]n ALJ can reject an examining physician’s opinion only for reasons supported by 

substantial evidence in the record; a contradictory opinion of a non-examining 

physician does not, by itself, suffice”). The record paints a varied picture of a 

troubled young woman who has struggled much of her life with drug addiction and 

mental illness, as well as from serious injuries sustained in a car accident. The 

record contains at times contradictory accounts of whether, and to what extent, 

Ankney is able to navigate the world at large. By many accounts she is angry, 

depressed, anxious, and poor at interacting with others, and yet at times she has 

been observed as alert, pleasant, oriented, well-groomed, well-nourished, and even 

future-oriented. At times her story has changed, as with Dr. Pareja when she 

denied suffering from anything other than depression. (A.R. 420.) 

 Dr. Balunas and Dr. Varghese provide a less pessimistic picture of Ankney’s 

prognosis, but there is no consensus: Dr. McIlduff found her unable to work, while 

Dr. Geiger listed her prognosis as “guarded,” did not believe her able to manage her 

benefit fund, and believed her to be “depressed, anxious, angry and emotionally 
25 

flat.” (Id. at 279.) Dr. Fabiano scored Ankney’s IQ at 75 and noted “significant 

limitations across all areas of intellectual functioning.” (Id. at 273.) Ultimately, the 

question of whether these other reports, along with Dr. Balunas’s, support or refute 

Dr. McIlduff’s opinion is a matter for the ALJ to articulate more clearly on remand 

so as to build a logical bridge between the evidence and his conclusion that 

Dr. McIlduff’s opinion inaccurately reflects Ankney’s capacity. As things now stand, 

the ALJ’s decision to reject Dr. McIlduff’s opinion is too poorly articulated to enable 

meaningful review. See Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012) (finding 

that “[i]f a decision ‘lacks evidentiary support or is so poorly articulated as to 

prevent meaningful review,’ a remand is required”). 

C. The RFC Determination 

 Ankney also challenges the ALJ’s finding that she is capable of performing 

light work with certain postural limitations. Specifically, the ALJ found that she 

has the RFC to perform light work, except that she “can only stand/walk for about 

four hours in an eight-hour workday; is unable to understand, remember, and carryout detailed and complex job instructions; is unsuited for work requiring intense 

focus and concentration for extended periods; i[s] moderately limited in the ability 

to respond appropriately to changes in the work setting; and is limited to only 

occasional contact with the general public.” (A.R. 16.) Ankney argues that the ALJ’s 

determination fails to abide by SSR 96-8p, which requires an assessment to “include 

a narrative discussion describing how the evidence supports each conclusion, citing 
26 

specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily 

activities, observations).” See SSR 96-8p, 1996 WL 374184 at *7 (July 2, 1996). 

 The court agrees that the physical component of the RFC determination, 

meaning Ankney’s ability to do light work and to stand/walk for four hours out of an 

eight-hour workday, cannot endure because it lacks an evidentiary basis. See

Briscoe ex. rel. v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Without Dr. Herzog’s 

report to rely upon, the ALJ was left with an evidentiary deficit as to Ankney’s 

physical capabilities. He tried to fill this gap with the findings of Dr. Geiger, who 

opined in September 2008 that Ankney had a “normal gait and posture,” but this 

observation was rendered a month before Ankney’s car accident and thus is hardly 

indicative of her current capabilities. Moreover, Dr. Geiger is a psychologist, not a 

medical doctor or podiatrist. Accordingly, the ALJ’s determination that Ankney has 

the RFC to perform light work and to stand/walk for four hours out of an eight-hour 

workday rests only upon his own lay opinions as to what Ankney is able to do. But 

an ALJ may not “play doctor” and use his own lay opinions to fill in evidentiary 

gaps in the record. See Myles v. Astrue, 582 F.3d 672, 677 (7th Cir. 2009); see also

Scott v. Astrue, 647 F.3d 734, 741 (7th Cir. 2011) (finding that the ALJ did not 

identify any medical evidence supporting the belief that the claimant could stand 

for six hours). The court notes that while Ankney bears the burden of establishing 

the medical record, the ALJ is charged with a duty to develop the record and 

recognize the need for further medical evaluations before rendering his RFC and 

disability determinations. Id. The ALJ failed to build the requisite logical bridge 
27 

between the evidence and his conclusion that Ankney can do light work and stand 

for four hours out of an eight-hour workday. 

 As for the remaining portions of the RFC—those dealing with Ankney’s 

emotional and intellectual capabilities—these too must fail for lack of sufficient 

analysis. The Social Security regulations make clear that an RFC assessment 

“must be based on all of the relevant evidence in the case record,” including medical 

history, laboratory findings, effects of treatment, reports of daily living, effects of 

symptoms, and evidence from attempts to work. SSR 96-8p at *5. This was not 

done here. Dr. McIlduff’s opinion was given little weight, but no specific reason was 

given for this conclusion other than the ALJ’s disagreement with her findings and 

his reliance on the “repeated findings of [other] mental status examinations”—none 

of which was specifically identified, analyzed, and/or compared to Dr. McIlduff’s. 

Dr. Balunas’s report was given great weight, but the reason for this likewise was 

not specifically explained. No mention was made of Ankney’s testimony, including 

her reports of daily living or her complaints of panic attacks, sleeplessness, racing 

thoughts, depression, and social anxiety. The ALJ does mention “a lack of intensive 

psychotherapy” as a reason for his determination, and the court agrees that several 

of Ankney’s doctors recommended therapy, but this alone does not cure the overall 

paucity of analysis. Further, the record shows that Ankney was on a wait list for a 

period of time awaiting assignment of a therapist and that, once she received an 

assignment, she was unable to begin her sessions because she lacked 

transportation. See SSR 96-7p, 1996 WL 374186, at *7 (July 2, 1996) (an ALJ “must 
28 

not draw any inferences about an individual’s symptoms and their functional effects 

from a failure to seek or pursue regular medical treatment” without considering 

explanations the individual may provide). Because the ALJ’s RFC analysis fails to 

satisfy the substantial evidence standard, this matter must be remanded for further 

evaluation. See McKinzey, 641 F.3d at 889. 

D. Ankney’s Credibility 

 Finally, Ankney argues that the ALJ improperly assessed her credibility by 

resorting to boilerplate language5 and then relying unduly on statements about her 

drug use and legal history. The Commissioner argues that the ALJ’s credibility 

finding was properly premised on the fact that Ankney not only is a “convicted liar, 

but also that she lied about it.” (R. 29, Def.’s Br. at 5.) The relevant issue here is 

whether the ALJ offered reasons grounded in evidence to explain his determination 

that Ankney lacks credibility. Ankney has a particularly high hurdle to overcome 

here because this court may only overturn an ALJ’s credibility assessment if it is 

“patently wrong.” See Skarbek, 390 F.3d at 504-05. That means that this court will 

not substitute its judgment regarding the claimant’s credibility for the ALJ’s, and 

Ankney “must do more than point to a different conclusion that the ALJ could have 

reached.” See Jones v. Astrue, 623 F.3d 1155, 1162 (7th Cir. 2010). 

 

 

5 The Seventh Circuit has made it clear that an ALJ’s use of the objectionable 

boilerplate language does not amount to reversible error if he “otherwise points to 

information that justifies his credibility determination.” See Pepper, 712 F.3d at 

367-68. Accordingly, there is no need to reverse based on an ALJ’s use of this 

boilerplate where he gave other reasons, grounded in evidence, to explain his 

credibility determination. See Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012).
29 

 The ALJ found Ankney to lack credibility because of “the evidence of drug 

use, which she denied at the hearing but which she reported to the consultative 

examiner” and “although [she] said that her only legal involvement had been an 

arrest for shoplifting at age fifteen, she told the consultative examiner that she had 

been arrested for perjury and fraud in 2003 when she was in her twenties.” 

(A.R. 21.) The ALJ was free to make a credibility determination regarding 

Ankney’s believability, and his finding that she lacked veracity because she was 

untruthful at the hearing about her drug problems and criminal history was not 

“patently wrong.” That being said, to fully evaluate Ankney’s credibility, the ALJ 

also “must consider the entire case record and give specific reasons for the weight 

given to the individual’s statements,” including her symptoms and complaints of 

pain. SSR 96-7p at *4; see also 20 C.F.R. § 404.1529(a). Given that this case is 

being remanded for further development of the ALJ’s opinion, the court 

recommends that the ALJ flesh out his credibility determination to include an 

analysis of Ankney’s complaints of pain and other symptoms “to determine the 

extent to which the symptoms affect [her] ability to do basic work activities.” SSR 

96-7p, 1996 WL 374186, at *1. 

 
30 

Conclusion

 For the foregoing reasons, Ankney’s motion for summary judgment is granted 

to the extent that this matter is remanded for further proceedings, and the 

Commissioner’s cross-motion for summary judgment is denied. 

 ENTER:

 

 ____________________________________ 

 Young B. Kim 

 United States Magistrate Judge