IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CHARLES R. BRAZITIS, )

)

Plaintiff, ) No. 11 C 7993

)

v. ) Magistrate Judge Cole

)

MICHAEL J. ASTRUE, Commissioner )

of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Charles Brazitis seeks review of the final decision of the Commissioner of the Social

Security Administration denying his application for Disability Insurance Benefits (“DIB”) under

Title II of the Social Security Act (“Act”), 42 U.S.C. § 423(d)(2), and Supplemental Security

Income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). Mr. Brazitis asks the

court to reverse and remand the Commissioner’s decision, while the Commissioner seeks an

order affirming the decision. For the following reasons, the plaintiff’s motion is granted.

I.

THE PROCEDURAL HISTORY OF THE CASE

Mr. Brazitis applied for DIB and SSI on September 16, 2008, (Administrative Record

(“R.”) 121, 127), alleging that he had been disabled since January 1, 2006. (R. 129). His claims

were denied initially on November 14, 2008, (R. 61), and upon reconsideration on March 19,

2009. (R. 76). Mr. Brazitis filed a timely request for rehearing on April 1, 2009. (R. 89). An

administrative law judge (“ALJ”) convened a hearing on March 5, 2010, at which Mr. Brazitis,

represented by counsel, appeared and testified. (R. 1). Julie Bose also testified as a vocational

expert. (R. 1). On April 20, 2010 the ALJ issued a decision finding that Mr. Brazitis was not

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disabled because he could perform light work with only occasional climbing ramps and stairs,

balancing, stooping, kneeling, crouching, and crawling and no climbing ladders, ropes or

scaffolds, and there are jobs that exist in significant numbers in the national economy that he can

perform despite those limitations. (R. 51, 55). This became the final decision of the

Commissioner when the Appeals Council denied Mr. Brazitis’s request for review of the

decision on September 20, 2011. (R. 35). See 20 C.F.R. §§ 404.955; 404.981. Mr. Brazitis has

appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have

consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c).

II.

THE EVIDENCE

A.

The Vocational Evidence

Mr. Brazitis was born on March 22, 1959, (R. 41), making him fifty-one years old at the

time of the ALJ’s decision. (R. 8). He has a high school diploma. (R. 9). He last worked in 2003

as a lift truck operator and material handler (R. 12). Before that, he performed tire repairs. (R.

12). Mr. Brazitis’s work history also included part-time maintenance for a mobile home park, a

job that involved picking up trash and performing very minor repairs. (R. 13). Mr. Brazitis

stopped working in 2003 because he was laid off. (R. 13).

B.

The Medical Evidence

The medical records begin on July 22, 2006, when Mr. Brazitis sought emergency care at

Oak Forest Hospital of Cook County because he had been experiencing two weeks of weakness

and dizziness, which worsened with exertion. (R. 199). Dr. Susan Arreola found Mr. Brazitis

noncompliant with medication and had a medical history of hypertension, peptic ulcer disease,

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and alcohol abuse. (R. 199). Mr. Brazitis was drinking one-half to one pint of whiskey and

smoking a pack of cigarettes daily. (R. 199). The doctor assessed Mr. Brazitis as having

asymptomatic anemia with gram positive stools; ordered a blood transfusion, EGD, and

colonoscopy; and prescribed Pantoprazole. (R. 200). The doctor also found Mr. Brazitis to have

alcoholic hepatitis and ordered IV hydration, thiamine and folic acid, and chlordiazepoxide to

prevent alcohol withdrawal. (R. 200). For his hypertension, the doctor started Mr. Brazitis on

Enalapril. (R. 200).

Mr. Brazitis next sought medical care on September 3, 2006, when he went to the Oak

Forest Hospital emergency room and was admitted for alcohol withdrawal. (R. 206). He

complained of feeling weak and generally fatigued. (R. 206). Mr. Brazitis reported being able to

walk only four-to-five blocks before needing to rest due to fatigue, (R. 206), but reported being

“independent for activities of daily living.” (R. 207). Dr. Joyce Gertzen found that Mr. Brazitis

had the following active problems: alcohol withdrawal, hypertension, smoker, alcoholic liver

disease, anemia, and hypomagnesemia. (R. 209).

One year later, on September 20, 2007, Mr. Brazitis received emergency care and was

found to have abdominal pain. (R. 198). Mr. Brazitis was admitted to John H. Stroger, Jr.

Hospital of Cook County on September 21, 2007, (R. 241), and his chief complaint was

dizziness and low hemoglobin. (R. 245). He also complained of generalized low energy and poor

exercise tolerance for the last two weeks. (R. 244). Mr. Brazitis had an EGD, which showed a

small exudative patch, evidence of erosive gastritis, a small non-bleeding angioectasia, and a

single edematous erosion. (R. 239). Mr. Brazitis also had “complaints consistent with

symptomatic anemia,” (R. 241). On September 24, 2007, Mr. Brazitis was discharged with

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primary diagnoses of microcytic anemia due to erosive gastritis and hepatomegaly with ascites

and secondary diagnoses of alcohol use, peptic ulcer disease, and hepatitis C. (R. 241).

With respect to Mr. Brazitis’s alcohol abuse, on October 11, 2007, Mr. Brazitis had a

follow-up appointment where he reported abstaining from alcohol for twenty days and no

complaints. (R. 237). On February 19, 2008, Mr. Brazitis also reported that he had stopped

drinking alcohol in September 2007. (R. 231). But on February 27, 2008, Mr. Brazitis was

admitted for detoxification from alcohol abuse. (R. 229–30). At a March 18, 2008 follow-up

appointment, Mr. Brazitis reported that he had stopped drinking alcohol in February 2008. (R

225).

The record shows that Mr. Brazitis received regular medical attention for the next two

years. He attended twenty-seven appointments, (R. 224, 228, 220, 222, 274, 277–78, 273, 272,

279, 280, 297, 298, 299, 303, 305, 306, 307, 308, 312, 313, 314, 315, 316, 320, 321, 322, 324),

and two consultative medical examinations for his DIB and SSI claims. (R. 260, 255).

Mr. Brazitis showed some improvement at these follow-up appointments. At a June 24,

2008 follow-up appointment at Stroger, Dr. Luis Rivera found Mr. Brazitis’s hypertension wellcontrolled. (R. 219). Mr. Brazitis had iron deficiency anemia due to erosive gastritis and

duodenal telangectasis for which Mr. Brazitis was to continue on iron pills. (R. 219). For Mr.

Brazitis’s liver disease and hepatitis, the doctor encouraged him to continue not drinking alcohol.

(R. 220). The attending physician found that Mr. Brazitis’s liver cirrhosis and hepatitis C

“clinically continue to improve.” (R. 220). At an August 19, 2008 follow-up appointment, Mr.

Brazitis reported that he “feels fine” with “no new complaints.” (R. 222).

On October 28, 2008, Dr. Debbie L. Weiss with the Bureau of Disability Determination

Services evaluated Mr. Brazitis. (R. 260). He reported that “his energy is very poor [and] he

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naps one to two hours a day and sleeps a full eight-hour night.” (R. 260). “He said he gets

fatigued with minimal activity. He walks four blocks to his facility a day and he is fatigued.” (R.

260). On November 10, 2008, Dr. Charles Kenney, a medical consultant, evaluated Mr. Brazitis

for a Physical Residual Functional Capacity Assessment and found that he had hypertension and

hepatitis but that the hepatitis did not “limit him to the degree in which he alleges.” (R. 248,

255).

On January 14, 2009, Mr. Brazitis received an examination because of his history of

cirrhosis, and the doctor found his liver enlarged and concluded that Mr. Brazitis had

hepatomegaly with likely cirrhosis. (R. 279). Mr. Brazitis had a follow-up appointment on

January 20, 2009, where he reported “feeling much better” and “feeling fine” with “no

complain[t]s.” (R. 280). The doctor reported that Mr. Brazitis had well-controlled hypertension

and iron deficiency anemia due to erosive gastritis and duodenal telangectasis, recommended

that Mr. Brazitis continue on iron pills, and noted that Mr. Brazitis said he had not been taking

this medication for two months. (R. 281–82).

On March 24, 2009, Mr. Brazitis had another follow-up appointment where he reported

feeling “less energetic.” (R. 297). At a May 5, 2009 appointment, Mr. Brazitis reported “feeling

fine” with “no complain[t]s.” (R. 299). It is unclear when the doctor notes that Mr. Brazitis

“stop taking iron pills” whether that was the doctor’s recommendation or whether Mr. Brazitis

was noncompliant. (R. 300). On August 18, 2009, Mr. Brazitis had an appointment where he

complained of feeling “tired, fatigued, cranky.” (R. 307) Later that month, at his August 25,

2009 appointment, the doctor noted that he “complain[ed] of fatigue since started on antiviral

and [I]nterferon therapy.” (R. 308). The doctor found Mr. Brazitis’s hypertension well-controlled

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and his iron deficiency anemia due to erosive gastritis and duodenal telangectasis resolved. (R.

309).

On September 8, 2009, Mr. Brazitis had another follow-up appointment where the doctor

again noted that he was “feeling fatigued.” (R. 312). On October 20, 2009, the doctor indicated

that he had continuing fatigue since starting Interferon therapy. (R. 314). But at Mr. Brazitis’s

December 1, 2009 follow-up appointment, the doctor noted that he had “no complain[t]s today.”

(R. 316). The doctor found Mr. Brazitis’s hypertension still well-controlled but found that his

iron deficiency anemia was no longer resolved because his hemoglobin level was decreasing

again. (R. 317). The doctor also found “mild improvement of his platelets.” (R. 317).

On December 15, 2009, Mr. Brazitis had another follow-up appointment where the

doctor noted no complaints and that he had regained his appetite. (R. 320). Mr. Brazitis had an

examination for cirrhosis of the liver on January 14, 2009. (R. 322). The doctor found his liver

enlarged and diagnosed him with hepatomegaly with likely cirrhosis. (R. 322). By February 2,

2010, Mr. Brazitis had completed the Interferon treatment. (R. 324).

C.

The Administrative Hearing Testimony

1.

Mr. Brazitis’s Testimony

Mr. Brazitis asserts that he is disabled as of January 1, 2006. (R. 6). At his hearing

before the ALJ, Mr. Brazitis testified that he was single, had two sons, and was living with his

mother. (R. 9). Mr. Brazitis graduated from high school and could read and write English. (R.

9–10). He was six feet tall and weighed 155 pounds. (R. 9). His mother drove him to the hearing.

(R. 10). Mr. Brazitis had a restricted driving permit because of a 1992 DUI and a few later

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instances of driving on a revoked license. (R. 10–11). To get around, Mr. Brazitis’s mother or

acquaintances gave him rides or he used public transportation. (R. 11).

Mr. Brazitis’s previous employment included tire repair, lift truck operator, and material

handler. (R. 11). Because Mr. Brazitis was “not very good with remembering years,” (R. 11), his

attorney explained and Mr. Brazitis confirmed that his tire repair job was from 1997–2000, his

lift truck operator and material handler job was from 2002–2003, and he worked part time

performing maintenance in the mobile home park where he lived until 2003, which is the last

time he worked. (R. 12).

From 2003 until he stopped drinking on March 1, 2008, Mr. Brazitis had not been in jail

or doing drugs—he’d been “mainly drinking” about half a pint to a pint of whiskey per day. (R.

13–14). His mother supported him, and he took out the trash for neighbors to get some money.

(R. 14). When asked why he stopped drinking, Mr. Brazitis testified that “it was the anemia. I

guess fatigue. I couldn’t understand why at the time but I was just unable to stand, unable to, to

do anything.” (R. 15). He quit drinking because he “really felt [he] was that close to dying.” (R.

15). He joined Alcoholics Anonymous (AA), got a sponsor, and attended meetings at least three

times a week. (R. 16).

Mr. Brazitis testified that his anemia caused him to feel “just very tired and worn out

feeling.” (R. 17). At the time of his hearing, he didn’t take medication for the anemia but had in

the past. (R. 17). He was taking medication for high blood pressure and erosive esophagus. (R.

17). Mr. Brazitis had a six-month Interferon treatment for his hepatitis C that ended two months

before the hearing. (R. 17). Although blood tests showed improvement, Mr. Brazitis testified that

he didn’t feel any different after the treatments. (R. 18). Mr. Brazitis also had possible liver

sclerosis but had not yet received the results from the ultrasound by the hearing. (R. 19).

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Mr. Brazitis then testified about how his condition affected his daily life. He testified that

he was able to make a “very minimal” contribution to help his mother with cooking or the dishes

because his condition prevented him from doing more. (R. 19). His mother did all the cooking

and grocery shopping, but Mr. Brazitis cleaned up after himself and did his own laundry. (R.

20–21). His days consisted of watching a lot television, feeding the dog, and taking the dog for

short walks. (R. 20, 22). Mr. Brazitis explained that he didn’t have to walk the dog very far

because he could put the dog out in the small piece of yard by his mobile home. (R. 20). Mr.

Brazitis also went to AA meetings and church on Sunday. (R. 21). He could also perform all of

his personal care such as brushing his teeth, trimming his beard, getting dressed, and taking a

shower. (R. 21). Mr. Brazitis estimated that he could stand for about 15–20 minutes at a time and

could walk about 1–2 blocks before needing a small rest. (R. 21). He didn’t use a cane or walker.

(R. 21). For sitting, Mr. Brazitis estimated that he could sit upright for 20–30 minutes at a time,

and he normally watched television while lying down on the couch. (R. 21–22). Mr. Brazitis

estimated that he could lift no more than 15–20 pounds. (R. 22). When asked if he could sit

through an hour-long television show, Mr. Brazitis replied, “I usually don’t with commercials or

what not.” (R. 22).

Mr. Brazitis testified that he lost concentration when he read the newspaper and had a

pretty good long-term memory but his short-term memory was not good. (R. 23, 52). In terms of

how he got along with other people, Mr. Brazitis testified that he was not a social person and that

“I’ve been sick for the last couple of years but prior to that I would not be one to run away from

a confrontation.” (R. 23).

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In terms of sleeping and napping, Mr. Brazitis said that getting up was a problem because

he didn’t have a regular sleep pattern and doesn’t have “anything really set.” (R. 19–20). Mr.

Brazitis later clarified that his lack of a sleep schedule was because he’s having difficulty

sleeping. (R.23) He would want to go to bed but wasn’t able to fall asleep and when he did, he

only slept three hours at a time before waking up for an hour and then going back to sleep for

another two hours. (R. 23). When he got up in the morning varied, and he napped every day. (R.

23–24). If he got up at 8:00 a.m., he had to lie down for a nap about noon and would nap for an

hour to an hour and a half. (R. 24). When Mr. Brazitis went to doctors’ appointments, he was

“known to fall asleep in the waiting room,” but his attorney commented that “I’m sure you’re not

the first person at Stroger to do that” and the ALJ clarified that Mr. Brazitis sometimes had to

wait for a long time there. (R. 25). Mr. Brazitis’s trips to his doctors’ appointments via public

transportation took four-to-five hours for a short appointment, and when he returned home “it

[wa]s nap time.” (R. 25). Mr. Brazitis’s energy level was bad before, and became worse during,

his Interferon treatment. (R. 27). Mr. Brazitis asked his doctor on his most recent appointment

about his low energy, and the doctor told him to be patient. (R. 27).

When asked why he waited until September 2008 to file for disability when he said that

his impairments began in January 2006, Mr. Brazitis responded that he didn’t know that

disability would be available to him and he filed when he found out about it through someone in

AA. (R. 13).

2.

The Vocational Expert’s Testimony

Julie Lynn Bose testified as an impartial vocational expert (“VE”). (R. 28–29). The VE

characterized Mr. Brazitis’s past work as follows: tire sales and service as heavy and semiskilled; material handler as medium and semi-skilled; and laborer as heavy and unskilled. (R.

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30). The ALJ asked the VE to assume a person with Mr. Brazitis’s age, education, and work

experience, and the ability to perform at the medium exertional level. The VE opined that the

hypothetical person would only be able to perform the material handler job but not the tire

service or laborer jobs. (R. 30). Changing the exertional level to light and adding limitations of

“no ladders, ropes, or scaffolds and only occasional for all the postural limitations” would rule

out all of Mr. Brazitis’s past work with no transferability of the semi-skilled work to light or

sedentary work. (R. 30). However, the VE opined that this more limited second hypothetical

person could perform light, unskilled work with jobs such as mail clerk (2300 to 2500 jobs in the

area), collator operator (800 to 1000 jobs in the area), and mold machine operator (1400 to 1600

jobs in the area). (R. 31). If this second hypothetical person was “absent three or more days a

month due to pain or fatigue associated with a medical impairment or side effects from

medication,” the VE opined that he would be unemployable. (R. 31). A person limited to

sedentary would grid out at age 50. (R. 31). A person limited to sedentary work who required a

one-to-two hour daily nap halfway through the work day would be unemployable. (R 31–32).

Likewise, a person limited to sedentary work whose focus, concentration, or slow production

resulted in a 25% job production reduction would be unemployable. (R. 32).

D.

The ALJ’s Decision

After finding that Mr. Brazitis had not been engaged in substantial gainful activity since

January 1, 2006, his alleged onset date, the ALJ found Mr. Brazitis to have the following severe

impairments: hepatitis C, anemia, hypertension, and alcohol abuse in remission. (R. 50).

However, the ALJ found that Mr. Brazitis did not have an impairment or combination of

impairments that met or medically equaled one of the listed impairments in the Commissioner’s

regulations because he didn’t establish all of the required criteria for hepatomegaly with likely

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cirrhosis (no indication of ascites or hydrothorax after September 24, 2007 ultrasound revealed

moderate ascites) and for anemia (no hematocrit persisting at 30% or less and no blood

transfusion on an average of every 2 months after one July 22, 2006 transfusion). (R. 50–51).

The ALJ determined that Mr. Brazitis had the residual functional capacity to perform

light work except only occasional climbing ramps and stairs, balancing, stooping, kneeling,

crouching, and crawling with no climbing ladders, ropes, or scaffolds. (R. 51). The ALJ reached

this conclusion by considering Mr. Brazitis’s testimony and the medical evidence. (R. 51–55).

The ALJ recounted Mr. Brazitis’s testimony about his daily activities and found that Mr.

Brazitis’s “medically determinable impairments could reasonably be expected to cause the

alleged symptom; 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. 52).1

 The ALJ then explained the basis for

his residual functional capacity assessment in the medical evidence. The ALJ noted that Mr.

Brazitis alleged a January 1, 2006 onset date but didn’t receive medical treatment until July 22,

2006 when he was treated for weakness and dizziness for two weeks duration. (R. 52). On

September 3, 2006, Mr. Brazitis next received medical treatment for alcohol withdrawal and

reported feeling weak and fatigued but independent in activities of daily living. (R. 52). Mr.

Brazitis next received medical treatment on September 24, 2007, and an ultrasound revealed

hepatomegaly with moderate ascites. (R. 52–53). At a June 24, 2008 follow-up appointment,

Mr. Brazitis reported feeling better, had no ascites collection, well-controlled hypertension, and

was taking iron pills for iron deficiency. (R. 53). At his consultative examination in connection

with his claim for disability benefits, Mr. Brazitis reported very poor energy, daily naps, and

1 Despite the Seventh Circuit’s repeated admonition that this sort of reasoning is illogical and backwards, the

ALJs continue to recite this improper formulation. 

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becoming fatigued with minimal activity. (R. 53). The ALJ noted that Mr. Brazitis “has received

regular treatment since his date last insured of June 30, 2008.” (R. 53). Mr. Brazitis reported

feeling much better on January 20, 2009, and his history of iron deficiency anemia was assessed

as resolved on August 25, 2009. (R. 53).

The ALJ then assessed Mr. Brazitis’s credibility. First, the ALJ listed his alleged

limitations but found that he “continues to engage in a wide array of daily activities.” (R. 53).

Moreover, Mr. Brazitis received only sporadic medical treatment until September 2007, “had no

complaints on October 11, 2007, and he felt fine with no new complaints on August 19, 2008.”

(R. 54). His “cirrhosis was assessed as likely well compensated” on December 16, 2008, and his

hypertension “is listed as well controlled at follow-up visits.” (R. 54).

The ALJ gave minimal weight to the determination by the State agency physicians that

he could perform medium exertional work because those physicians didn’t have later medical

evidence. (R. 54). While the ALJ found credible some of Mr. Brazitis’s testimony about his past

alcoholism and current sobriety, the ALJ did not find all of Mr. Brazitis’s testimony about his

limitations credible. (R. 54). Finally, the ALJ noted that Mr. Brazitis “admitted that he can lift 15

to 20 pounds and he admitted at the consultative examination that he walks four blocks to his

facility a day” and that no source has opined further limitations. (R. 54).

The ALJ found Mr. Brazitis unable to perform his past relevant work based on the VE’s

testimony that those jobs were medium or heavy in exertional level. (R. 55). However, based on

the VE’s response to the hypothetical person restricted to light work with other limitations, the

ALJ determined that a significant number of jobs exist in the national economy that Mr. Brazitis

can perform. (R. 55–56).

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Ultimately, the ALJ concluded that Mr. Brazitis had not been under a disability defined

from January 1, 2006, through the date of the ALJ’s decision. (R. 56).

III.

ANALYSIS

A.

The Standard of Review

We review the ALJ’s decision directly, but we play an “extremely limited” role. Simila v.

Astrue, 573 F.3d 503, 517 (7th Cir. 2009); Elder v. Astrue, 529 F.3d 408, 413–14 (7th Cir. 2008).

“We do not actually review whether [the claimant] is disabled, but whether the Secretary’s

finding of not disabled is supported by substantial evidence.” Lee v. Sullivan, 988 F.2d 789, 792

(7th Cir. 1993). If it is, the court must affirm the decision. 42 U.S.C. § 405(g). Substantial

evidence is “ ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’ ” Richardson v. Perales, 402 U.S. 389, 401

(1971); Schaaf v. Astrue, 602 F.3d 869, 874 (7th Cir. 2010). The court may not reweigh evidence

or substitute its judgment for that of the ALJ. Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009);

Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008). Where conflicting evidence would allow

reasonable minds to differ as to whether the claimant is disabled, it is the ALJ’s responsibility to

resolve those conflicts. Simila, 573 F.3d at 513–14; Binion v. Chater, 108 F.3d 833, 841 (7th Cir.

2007). While the standard of review is deferential, the court cannot “rubber stamp” the

Commissioner’s decision. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002).

Although the ALJ need not address every piece of evidence, the ALJ cannot limit

discussion to only that evidence that supports the ultimate conclusion. Herron v. Shalala, 19

F.3d 329, 333 (7th Cir. 1994). The ALJ’s decision must allow the court to assess the validity of

the findings and afford the plaintiff a meaningful judicial review. Hopgood ex rel. L.G. v. Astrue,

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578 F.3d 696, 698 (7th Cir.2009). The Seventh Circuit calls this building a “logical bridge”

between the evidence and the ALJ’s conclusion. Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.

1996). It is a “lax” standard. Berger, 516 F.3d at 545. It is enough if the ALJ “ ‘minimally

articulate[s] his or her justification for rejecting or accepting specific evidence of a disability.’ ”

Berger, 516 F.3d at 545; Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001); Mueller v.

Astrue, 2012 WL 1802075, 1–2 (N.D. Ill. 2012).

B.

The Five-Step Sequential Analysis

The Social Security Regulations provide a five-step sequential inquiry to determine

whether a plaintiff is disabled:

1) is the plaintiff currently unemployed;

2) does the plaintiff have a severe impairment;

3) does the plaintiff have an impairment that meets or equals one of the impairments listed as

disabling in the Commissioner’s regulations;

4) is the plaintiff unable to perform his past relevant work; and

5) is the plaintiff unable to perform any other work in the national economy?

20 C.F.R. § 404.1520; Simila, 573 F.3d at 512–13; Briscoe ex rel. Taylor v. Barnhart, 425 F.3d

345, 351–52 (7th Cir. 2005). An affirmative answer leads either to the next step or, on steps 3

and 5, to a finding that the claimant is disabled. 20 C.F.R. § 416.920; Briscoe, 425 F.3d at 352;

Stein v. Sullivan, 892 F.2d 43, 44 (7th Cir. 1990). A negative answer at any point, other than step

3, stops the inquiry and leads to a determination that the claimant is not disabled. 20 C.F.R. §

404.1520; Stein, 892 F.2d at 44. The claimant bears the burden of proof through step four; if it is

met, the burden shifts to the Commissioner at step five. Briscoe, 425 F.3d at 352.

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C.

Mr. Brazitis’s Intentions

Mr. Brazitis advances two primary arguments for reversal and remand: (1) the ALJ erred

when assessing Mr. Brazitis’s credibility and (2) the ALJ failed to identify a record basis for

finding that Mr. Brazitis could perform light work on a full-time schedule. (Plaintiff’s Brief in

Support of Reversing the Decision of the Commissioner of Social Security, 1).

1.

The ALJ’s Adverse Credibility Determination

Mr. Brazitis criticizes the ALJ’s credibility determination for using the stock phrase, “I

find that the claimant’s medically determinable impairments could reasonably be expected to

cause 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.” (Plaintiff’s Brief, 7). The

Seventh Circuit, noting its frequent use by ALJs in their decisions, has repeatedly criticized this

template as “unhelpful,” Shauger v. Astrue, 675 F.3d 690, 696–97 (7th Cir. 2012), “opaque,”

Bjornson v. Astrue, 671 F.3d 640, 644–45 (7th Cir. 2012), and “meaningless,” Parker v. Astrue,

597 F.3d 920, 921–22 (7th Cir. 2010), and explained that it backwardly “implies that the ability

to work is determined first and is then used to determine the claimant’s credibility.” Bjornson,

671 F.3d at 645–46. More importantly, it fails to indicate which statements are not credible and

yields no clue as to what weight the ALJ gave a claimant’s testimony. See Spiva v. Astrue, 628

F.3d 346 (7th Cir. 2010); Parker, 597 F.3d 920.

In short, this sort of boilerplate is inadequate, by itself, to support an adverse credibility

finding. Richison v. Astrue, 2012 WL 377674, *3 (7th Cir. 2012). Conversely, its use by itself

does not make a credibility determination invalid. Not supporting a credibility determination

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with explanation and evidence from the record does. See Punzio v. Astrue, 630 F.3d 704, 709

(7th Cir. 2011); Parker, 597 F.3d at 921–22. As the Commissioner’s brief correctly points out,

(Commissioner’s Response Brief in Support of Affirming the Decision of the Commissioner, 6)

(hereinafter Commissioner’s Response), the ALJ’s opinion in this case goes beyond the

boilerplate, by examining the plaintiff’s daily activities; medical records; the fact that he left his

job because he was laid off and not for medical reasons; and his follow-up appointments where

he had no complaints and some of his conditions had improved. (R. 53–54). Thus, remand is not

required simply because of the ALJ’s use of the boilerplate phrasing alone. However, the ALJ’s

credibility determination is still inadequate because it’s not supported with explanation and

evidence from the record, as discussed below.

Mr. Brazitis also asserts that “[t]he Seventh Circuit has emphasized that a decision

cannot stand when, as here, the ALJ bases the credibility decision on the objective medical

evidence.” (Plaintiff’s Brief, 9). But an ALJ is not bound to credit a plaintiff’s complaints

insofar as they clash with other, objective medical evidence in the record or if his credibility was

otherwise called into question by appropriate evidence, Arnold v. Barnhart, 473 F.3d 816, 823

(7th Cir. 2007), including discrepancies between objective medical or other evidence and selfreports, which may be evidence of symptom exaggeration. Sienkiewicz, 409 F.3d at 804.

Making judgments about whether someone is telling the truth can be a tricky business. A

reviewing court lacks direct access to the witnesses, lacks the trier of fact’s immersion in the

case as a whole, and lacks the specialized tribunal’s experience with the type of case under

review. See Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir. 2004). Compare Ashcraft v.

Tennessee, 322 U.S. 143, 171, 64 S.Ct. 921, 88 L.Ed. 1192 (1944) (Jackson, J., dissenting) (“a

few minutes observation of the parties in the courtroom is more informing than reams of cold

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record.”). That is why credibility determinations, especially when made by specialists such as

the ALJs of the Social Security Administration, are entitled to “special deference.” Castile v.

Astrue, 617 F.3d 923, 929 (7th Cir. 2010); Briscoe, 425 F.3d at 354; Jones v. Astrue, 623 F.3d

1155, 1160 (7th Cir. 2010); Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008). Only when the

ALJ’s determination is patently wrong can it be reversed. Jones, 623 F.3d at 1162. Moreover, an

ALJ’s credibility determination need not be flawless. Simila, 573 F.3d at 517. Only when it is

“lack[ing] any explanation or support,” will it be deemed “patently wrong.” Jones, 623 F.3d at

1160–62; Simila, 573 F.3d at 517; Elder, 529 F.3d. at 413–14; Allord v. Barnhart, 455 F.3d 818,

821 (7th Cir. 2006); Berger, 516 F.3d at 546. Demonstrating that a credibility determination is

patently wrong is a “high burden.” Turner v. Astrue, 390 Fed.Appx. 581, 587 (7th Cir. 2010).

Mr. Brazitis’s argues that the ALJ’s credibility determination failed to properly analyze

his fatigue and need to nap for one-to-two hours every day. Mr. Brazitis takes issue with the ALJ

crediting his statements about his ability to lift and walk and his sobriety but not crediting his

statements about his napping needs and fatigue symptoms, (Plaintiff’s Brief, 6), and argues that

the ALJ provided “no reasons for the differentiation,” (Plaintiff’s Brief, 7), and that the ALJ’s

failure to properly analyze his claimed fatigue violates the requirement that the ALJ consider all

of the regulatory factors. (Plaintiff’s Brief, 11). 

In making judgments about the veracity of a claimant’s statements about his or her

symptoms, the ALJ, in addition to considering the objective medical evidence, should consider

the following in totality: (1) the claimant’s daily activities; (2) the location, duration, frequency,

and intensity of the claimant’s pain or other symptoms; (3) factors that precipitate and aggravate

the symptoms; (4) the type, dosage, effectiveness, and side effect of any medication that the

claimant takes or has taken to alleviate pain or other symptoms; (5) treatment, other than

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medication, the claimant receives or has received for relief of pain or other symptoms; (6) any

measures other than treatment the claimant uses or has used to relieve pain or other symptoms;

and (7) any other factors concerning the claimant’s functional limitations and restrictions due to

pain or other symptoms. 20 C.F.R. § 404.1529(c)(3). Inconsistencies in the evidence and the

extent to which there are any conflicts between the claimant’s statements “and the rest of the

evidence” are of course significant. 20 C.F.R. §§ 404.1529(c)(4). Compare Kadia v. Gonzales,

501 F.3d 817, 820 (7th Cir. 2007) (“ ‘factors other than demeanor and inflection go into the

decision whether or not to believe a witness. Documents or objective evidence may contradict

the witness’ story; or the story itself may be so internally inconsistent or implausible on its face

that a reasonable fact finder would not credit it.’ ”).

The ALJ’s credibility determination involved recounting Mr. Brazitis’s testimony about

his alleged limitations and then finding “[h]owever, despite these limitations, the claimant

continues to engage in a wide array of daily activities.” (R. 53). The ALJ found it significant that

Mr. Brazitis’s typical day included watching television and taking his dog for short walks, that

he could clean up after himself, do his own laundry, and perform all personal care, that he left

the home to attend AA meetings, church, and social activities three-to-five times per week, and

that he reported in September 2006 being independent in activities of daily living. (R. 54). But

the Seventh Circuit has repeatedly cautioned against equating an ability to engage in sporadic

activities with the ability to work eight hours a day, five consecutive days of the week,

Carradine, 360 F.3d at 755; Clifford, 227 F.3d 863, 872 (7th Cir. 2000); Shramek v. Apfel, 226

F.3d 809, 813 (7th Cir. 2000). The ALJ never explained how someone who requires a one-to-two

hour midday nap can work a full-time job. Although the ALJ discusses Mr. Brazitis’s daily

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activities, as required by the regulations, the credibility assessment never explains how these

sporadic activities are inconsistent with debilitating fatigue and requiring a daily nap.

The ALJ’s credibility determination is also inadequate because it lacks any explanation

or support for rejecting Mr. Brazitis’s claims about needing to take daily naps. The regulations

require consideration of the frequency and duration of symptoms and the measures the claimant

uses to alleviate symptoms. Mr. Brazitis’s primary reported symptom is fatigue, which he

alleviates with daily naps. The ALJ’s credibility determination mentions that Mr. Brazitis “takes

a nap during the day” (R. 53). This reference suggests the ALJ believed that Mr. Brazitis

required his daily naps. The ALJ does not engage in any analysis of this issue. After finding

credible Mr. Brazitis’s testimony about his past alcoholism and current sobriety, the ALJ states,

“[h]owever, as to the alleged extent of limitations on his ability to function, I do not find the

claimant’s testimony supported by the medical evidence beyond the residual functional capacity

set forth above.” (R. 54). This vague statement does not provide the necessary analysis of Mr.

Brazitis’s fatigue symptoms or how he alleviates those symptoms through naps. If the ALJ didn’t

find Mr. Brazitis’s claim about needing naps credible, the ALJ needed to explain why. 

Moreover, his reference to the RFC shows that he did precisely what the Seventh Circuit has said

an ALJ may not do.

Mr. Brazitis also challenges the ALJ’s consideration of his treatment history as

undercutting his credibility. The Seventh Circuit has warned that “the ALJ ‘must not draw any

inferences’ about a claimant’s condition from this failure [to seek regular treatment] unless the

ALJ has explored the claimant’s explanations as to the lack of medical care” Craft, 539 F.3d at

679 (quoting Social Security Ruling 96-7p). See also Shauger, 675 F.3d at 696 (“Although a

history of sporadic treatment or the failure to follow a treatment plan can undermine a claimant’s

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credibility, an ALJ must first explore the claimant’s reasons for the lack of medical care before

drawing a negative inference.”). The ALJ here found it significant that Mr. Brazitis didn’t

“receive any treatment corresponding to his January 1, 2006 alleged onset date.” (R. 54) The

ALJ also counted against Mr. Brazitis that after receiving treatment twice in 2006, he didn’t

receive additional treatment for one year. (R. 54). But the ALJ failed to address before drawing

these negative inferences why Mr. Brazitis might not have sought regular treatment. The ALJ

also inferred that Mr. Brazitis “did well” between his first appointment on July 22, 2006 and his

second appointment on September 3, 2006, (R. 54), but the record does not support this rosy

interpretation.

Instead, the record shows, and the ALJ’s decision noted, that Mr. Brazitis had a history of

alcohol abuse and regularly drank one-half to one pint of whiskey daily, which he reported to his

doctors on July 22, 2006 and September 3, 2006. (R. 52). While the Commissioner disposes of

this problem by arguing that the plaintiff “fails to offer any reason other than his abstention from

alcohol,” (Commissioner’s Response, 7), that argument misses the point. The standard of review

is whether the ALJ minimally articulated the justification for a finding. Berger, 516 F.3d at 545.

Since the ALJ’s decision is silent on explaining the reasons for Mr. Brazitis’s treatment history,

the minimal articulation standard has not been met.

The ALJ’s credibility determination takes into account evidence other than sporadic

treatment history, such as the fact that Mr. Brazitis left his job because he was laid off and not

for medical reasons, that he had no complaints and felt fine with no complaints on October 11,

2007, and August 19, 2008, that his cirrhosis was assessed as likely well compensated on

December 16, 2008, and that his hypertension was assessed as well controlled at follow-up

appointments. (R. 54). In some cases, the Seventh Circuit has affirmed the ALJ’s decision

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despite the presence of flaws in reasoning when the ALJ’s other reasons are valid, Halsell v.

Astrue, 357 F. App’x. 717, 722 (7th Cir. 2009) (“[n]ot all of the ALJ’s reasons must be valid as

long as enough of them are”), or when the evidence supporting the ALJ’s decision is

overwhelming, McKinzey v. Astrue, 641 F.3d 884, 893–94 (7th Cir. 2011) (“Although we have

noted some problems with the way the ALJ articulated her unfavorable determination[,] . . . we

have also concluded that remanding this case to the agency would serve no purpose in light of

the overwhelming evidence supporting the ALJ’s decision.”).

In this case, however, neither of those situations is present. First, unlike Halsell, 357 F.

App’x at 723, where the ALJ’s opinion was supported by enough valid reasons including an

uncontradicted doctor’s report, a physical therapist’s estimate that the claimant had met 75% of

her goals, and a doctor’s characterization of the claimant’s conditions as mild or minimal, the

ALJ’s other reasons here are much less substantial and suffer from their own flaws. The ALJ

finds it significant that Mr. Brazitis’s cirrhosis and hypertension were well compensated and

well controlled, but Mr. Brazitis said his hepatitis C and anemia cause his fatigue, (R. 17, 27).

The ALJ’s credibility determination doesn’t mention those conditions. And, as discussed in the

RFC assessment, those two instances where Mr. Brazitis reported no complaints were evidence

that the State agency physicians’ had when giving their opinions, but the ALJ found these

decisions worthy of only minimal weight because of later evidence. (R. 54). 

This case is also distinguishable from McKinzey where the ALJ’s decision was supported

by the “smoking gun” that the claimant’s own doctor found that she exaggerated her symptoms.

McKinzey, 641 F.3d at 891. No such smoking gun is present in this case. Instead, the cumulative

effect of the errors described above “leave[s] us without confidence that the ALJ’s decision

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builds a ‘logical bridge’ between the evidence and . . . conclusion,” Myles v. Astrue, 582 F.3d

672, 674 (7th Cir. 2009), thus requiring remand.

Mr. Brazitis’s argument that the ALJ ignored highly pertinent evidence that Mr. Brazitis

“might spontaneously f[a]ll asleep if he missed his mid-day nap and that he spent time lying on

the couch, both of which would significantly impact work ability,” (Plaintiff’s Brief, 12), is not

persuasive. Neither piece of evidence that the ALJ ignored qualifies as highly pertinent. First,

characterizing Mr. Brazitis as spontaneously falling asleep is inaccurate. This assertion must be

relying on Mr. Brazitis’s testimony that he sometimes fell asleep in the waiting room at his

doctor’s office. (R. 25). In Mr. Brazitis’s own words, he said that he’s “been known to fall asleep

in the waiting room.” (R. 25). His attorney responded, “I’m sure you’re not the first person at

Stroger to do that,” and the ALJ had Mr. Brazitis clarify that he sometimes must wait at the

doctor’s office for a long time. (R. 25). 

Drifting off while waiting for a long time at a doctor’s office is a far cry from

spontaneously falling asleep. Second, Mr. Brazitis’s own characterization that he “spent time

lying on the couch” undermines its weight as evidence that the ALJ should have considered. Mr.

Brazitis testified that he normally lies down on the couch to watch television. (R. 22). This is the

only evidence in the record about Mr. Brazitis lying down, and it suggests that Mr. Brazitis does

lie down when he watches television but not that he must.2

 Because an ALJ need not consider

every piece of evidence, Jones, 623 F.3d at 1160, the ALJ did not err by not mentioning Mr.

Brazitis’s testimony about falling asleep in the doctor’s office or about lying down while

watching television.

2

 Moreover, in “Section C - Information About Abilities” of Mr. Brazitis’s Function Report that he filled out for the

Social Security Administration to make his claim, he did not check “sitting” as one of the items that his illnesses,

injuries, or conditions affect. (R. 158). Because the ALJ did not consider this, however, the reviewing court can’t either.

See, e.g., Jelinek v. Astrue, 662 F.3d 805, 812 (7th Cir. 2011).

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However, remand is required because the ALJ’s credibility determination did not explain how

Mr. Brazitis’s daily activities are inconsistent with his reported fatigue and need to nap, why the

ALJ found Mr. Brazitis’s fatigue and nap claims not credible, and what were Mr. Brazitis’s

reasons for sporadic treatment history before counting it against him.

2.

Sufficiency of the Residual Function Capacity Assessment

Finally, Mr. Brazitis argues that the ALJ’s residual functional capacity (RFC) assessment

failed to establish a basis in the record for finding that Mr. Brazitis could perform light work

because the ALJ didn’t identify “any medical evidence that he’s capable of the physical

requirements of a range of light work on a regular and continuing basis particularly given his

fatigue.” (Plaintiff’s Brief, 14). Mr. Brazitis faults the ALJ for not relying on a physician’s

opinion and for not explaining how Mr. Brazitis could stand or walk for six hours in an eighthour work day without needing extra breaks.

The RFC assessment is a consideration of the things a claimant can physically

accomplish in order to determine what types of work can be performed. 20 C.F.R. §

404.1545(a)(1); Berger, 516 F.3d at 544. When a reviewing court examines the ALJ’s RFC

determination, it is not to reweigh the evidence or substitute the ALJ’s analysis with its own. Id.;

Terry, 580 F.3d at 475. If there is substantial evidence to support that decision, the court must

affirm the decision of the ALJ. Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir. 2007).

“Substantial evidence” need not be a preponderance, but it must be more than a mere scintilla.

Id. at 841–42. An ALJ need not elaborate in intricate detail the evaluation of every item in the

record, but only allow a reviewing court to “trace the path of the ALJ’s reasoning.” Rohan v.

Chater, 98 F.3d 966, 971 (7th Cir. 1996).

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The ALJ concluded that Mr. Brazitis had the ability to perform light work. The ALJ’s

decision appears to address the RFC assessment in two places. In the first discussion, the ALJ

stated “I have considered the objective evidence of the record, and find that this evidence

supports my Residual Functional Capacity assessment” and then recounted in detail Mr.

Brazitis’s medical history, treatment, and symptoms. (R. 52–53). But much of this discussion is

not related to what Mr. Brazitis can do physically, which is the purpose of the RFC assessment,

and does not include any explanation of what effect the symptoms or medical test results have on

Mr. Brazitis’s ability to work. In short, this first discussion of the RFC assessment does not

allow the path of the ALJ’s reasoning to be traced because it does not provide a logical bridge

from the evidence to the conclusion.

In the second discussion of the RFC determination, the ALJ decided to give minimal

weight to the opinions of the State agency physicians because they didn’t have access to

subsequent medical records. (R. 54). But the ALJ does not explain what in this subsequently

submitted evidence contradicts the State agency physicians’ findings that Mr. Brazitis can

perform medium exertional work. In fact, the ALJ relied on some of the same evidence that was

before the state agency physicians to reach his conclusion that Mr. Brazitis could perform only

light work. In the same paragraph where the ALJ decided to give minimal weight to the state

agency physicians’ opinions, the ALJ noted that Mr. Brazitis “admitted at the consultative

examination that he walks four blocks to his facility a day.” (R. 54). This admission was

evidence that the State agency physicians had when giving their opinions. It doesn’t make sense

that the ALJ only gives these opinions minimal weight because of subsequent medical evidence

but then relies on the same medical evidence as the State agency physicians to support a

different RFC assessment. 

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The ALJ also found it significant that Mr. Brazitis could lift 15 to 20 pounds. (R. 54).

Although lifting that amount of weight is part of the ability to perform light work, it involves

more than that:

Light work involves lifting no more than 20 pounds at a time with frequent lifting or

carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very

little, a job is in this category when it requires a good deal of walking or standing, or

when it involves sitting most of the time with some pushing and pulling of arm or leg

controls. To be considered capable of performing a full or wide range of light work, you

must have the ability to do substantially all of these activities. If someone can do light

work, we determine that he or she can also do sedentary work, unless there are additional

limiting factors such as loss of fine dexterity or inability to sit for long periods of time.

20 C.F.R. § 416.967. Nowhere does the ALJ’s RFC assessment address the other components of

light work. The Seventh Circuit has found that light work requires “much walking or standing

(off and on, for a total of approximately six hours of an eight-hour workday), and, if sitting, it

involves some pushing and pulling of the arms or legs.” Diaz v. Chater, 55 F.3d 300, 306 (7th

Cir. 1995). Walking four blocks a day is not evidence that Mr. Brazitis can perform “a good

deal” or “much” walking. Because the ALJ’s RFC assessment isn’t supported by substantial

evidence, remand is required.

CONCLUSION

The plaintiff’s motion for remand is GRANTED, and the Commissioner’s motion is

denied.

ENTERED:_____________________________________

 UNITED STATES MAGISTRATE JUDGE

DATE: 1/11/13

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