treatment throughout the years, which included physical therapy; multiple,
different pain medications; aqua therapy; chiropractic treatment; and cortisone
injections.

SSR 96-7p provides that “a longitudinal medical record demonstrating an
individual’s attempts to seek medical treatment for pain or other symptoms and to
follow that treatment once it is prescribed lends support to an individual’s
allegations of intense and persistent pain . . . for the purposes of judging the
credibility of the individual’s statements.” 1996 WL 374186, at *7. “Persistent
attempts by the individual to obtain relief of pain . . . such as by increasing
medications, trials of a variety of treatment modalities . . . or changing treatment
sources may be a strong indication that the symptoms are a source of distress to the
individual.” Id.

The record here is replete with documentary evidence demonstrating that
since the inception of Kirsch’s back injury, Kirsch pursued the aforementioned
avenues to treat her back injury and its accompanying pain, but none were
successful in alleviating her problems. The ALJ however failed to discuss any of
these modes of treatment in her credibility determination. To be sure, in evaluating
Kirsch’s credibility, the ALJ recounted Kirsch’s objective medical history, crediting
the medical evidence indicating that Kirsch was experiencing few functional
limitations and that her condition was improving. But there is no indication in the
ALdJ’s opinion—and the Commissioner points to none—that the ALJ considered the

other alternative courses of treatment that Kirsch pursued to alleviate her pain. By

20



with substantial evidence in the record. Elder v. Astrue, 529 F.3d 408, 415 (7th Cir.
2008); see also Schmidt v. Astrue, 496 F.3d 838, 842 (7th Cir. 2007) (stating ALJ
may discount treating physician’s medical opinion if it “is inconsistent with the
opinion of a consulting physician or when the treating physician’s opinion is
internally inconsistent, as long as [she] minimally articulates [her] reasons for
crediting or rejecting evidence of disability”) (ternal quotation marks omitted). “A
decision to deny a physician’s opinion controlling weight does not prevent the ALJ
from considering it, however, and the ALJ may still look to the opinion after opting
to afford it less evidentiary weight.” Elder, 529 F.3d at 415. If an ALJ declines to
give a treating physician’s opinion controlling weight, the regulations require the
ALJ to consider a number of factors to determine what weight, if any, to afford the
treating physician’s opinion. Id. These factors include: the length, nature, and
extent of the treatment relationship; the frequency of examination; the physician’s
specialty; the types of tests performed; and the consistency and support for the
physician’s opinion. Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010); see also 20
C.F.R. § 404.1527(c)(2). If, after considering these factors, the ALJ discounts the
physician’s opinion, that decision will stand so long as the ALJ “minimally
articulate[d]” her reasons for doing so. Elder, 529 F.3d at 415 (internal quotation
marks omitted).

The Seventh Circuit has consistently criticized ALJs for failing to analyze the
factors set forth in the regulations when deciding what weight to afford a treating

physician’s opinion after they have denied that opinion controlling weight. See

14



Kirsch correctly notes that an ALJ should not translate an ability to perform
daily activities, like caring for family members, into an ability to work full-time. See
Roddy v. Astrue, 705 F.3d 631, 639 (7th Cir. 2013). But that is not what the ALJ
did. The Seventh Circuit has determined that as part of a credibility determination,
it is appropriate for an ALJ to consider a claimant’s daily activities, id. (citing SSR
96-7p), and inconsistencies regarding those daily activities, see SSR 96-7p, 1996
WL 374186, at *5 (“One strong indication of the credibility of an individual’s
statements is their consistency, both internally and with other information in the
case record.”). An examination of the ALJ’s credibility determination demonstrates
that the ALJ was not, as Kirsch asserts, equating Kirsch’s ability to perform a
limited range of daily activities with an ability to work full-time. Rather, the ALJ
was simply pointing to the inconsistencies between Kirsch’s description of her daily
activities and the evidence in the record as a reason that the ALJ found Kirsch’s
testimony regarding her limitations to be incredible.

In sum, while the ALJ’s credibility determination was not as deficient as
Kirsch claims, there are shortcomings in that determination that ultimately
warrant remand so that the ALJ may build the required logical bridge from the
record to her credibility determination.

Ill. The ALJ’s Development Of The Record And Her Analysis Of Kirsch’s
Carpal Tunnel Syndrome

Kirsch finally argues that the ALJ failed to develop the record regarding her
hand and arm impairments—namely her carpal tunnel syndrome—and also failed

to adequately analyze those impairments in her opinion. Kirsch contends that

24



The next year, beginning in January 2007, Kirsch began seeing Dr. Jeffrey
Oken. Id. at 1538. After diagnosing Kirsch with lumbar hyperlordosis, low back
pain, lumbar radicular pain, and myofascial pain, Dr. Oken recommended that
Kirsch pursue similar pain therapies that Dr. Kirincic had recommended, which
included prescription drugs, acupuncture, enrollment in a pain clinic, and
injections. E.g, id. at 1518, 1520, 1522, 1540, 1567. But again, objective testing
throughout 2007—a late January CT scan of Kirsch’s lumbar spine and an MRI
taken six months later in June—revealed unremarkable results. Id. at 1102, 1513.
While under Dr. Oken’s care, Kirsch experienced both improved and worsening
pain. E.g., id. at 1525, 1921. Test results revealed tightness in Kirsch’s hip flexors,
full range of motion in her back, and tender palpation in her bilateral parsipinals.
Id, at 1517, 1521, 1907, 1911, 1916, 1923.

The record includes two Physical Residual Functional Capacity (“RFC”)
Assessment forms from two state-agency physicians. Dr. Frank Jimenez completed
his RFC for Kirsch on August 29, 2007. Dr. Jimenez opined that Kirsch can sit or
stand for six hours in an eight-hour workday, occasionally lift 20 pounds, and
frequently lift 10 pounds. Id. at 1543. Later that year, on December 7, 2007, Dr.
Young-Ja Kim opined that Kirsch can stand at least two hours in an eight-hour
workday, sit about six hours, and occasionally lift 10 pounds. Jd. at 1571. Dr. Kim
noted, however, that Kirsch could perform work activities within the limitations

that he outlined in his RFC provided that she received adequate pain medication.

Id. at 1577.



failing to do so, the Court is left to wonder why the ALJ discounted Kirsch’s
numerous trips from 2004 to 2009 to her doctors, emergency rooms, clinics, and
physical therapy. Presumably, the ALJ believed that despite the treatments that
she attempted, Kirsch was simply exaggerating her pain symptoms. But “[nJothing
in Social Security Ruling 96-7p suggests that the reasons for a credibility finding
may be implied.” Golembiewski v. Barnhart, 322 F.3d 912, 916 (7th Cir. 2003).
Accordingly, the Court finds that remand is warranted so that the ALJ may address
this omission from her decision.

Kirsch also faults the ALJ for failing to consider the side effects of her
medications when assessing her credibility. The record evidence and Kirsch’s
testimony demonstrate that the prescribed medication she takes makes her drowsy,
which contributes to Kirsch’s inability to function. A.R. 49, 228. The Social Security
regulations require that an ALJ consider the side effects of a claimant’s medication,
but the Commissioner points to nowhere in the ALJ’s opinion where the ALJ
complied with this requirement. See SSR 96—-7p, 1996 WL 374186, at *3; accord
Villano, 556 F.3d at 562-63. Accordingly, the Court instructs the ALJ to consider
this factor when assessing Kirsch’s credibility on remand.

Kirsch finds less success with her next two complaints about the ALdJ’s
credibility finding. Kirsch argues that the ALJ improperly concluded that her pain
allegations were not fully supported by the objective medical evidence. An ALJ may
not disregard a claimant’s allegations about the intensity and persistence of pain

solely because there is no objective medical evidence to support it. SSR 96-7p, 1996

21



an ALJ need not address every piece of evidence in his decision.”). Here, the focus of
the medical reports, Kirsch’s testimony, and her application for disability were
Kirsch’s back and shoulder pain, not any hand or arm limitations. A review of the
record confirms this. Accordingly, the Court concludes that the ALJ developed a full
and fair record and did not err by not discussing Kirsch’s hand limitations in her
opinion.
Conclusion
For the foregoing reasons, Kirsch’s motion for summary judgment, R. 14, is
granted insofar as it requests a remand, and the case is remanded to the ALJ for
further proceedings consistent with this opinion.
ENTERED:

oonttc " Luthyr.

Thomas M. Durkin
United States District Judge

Dated: October 2, 2013

27



Kirsch finally contends the ALJ improperly found that her testimony
regarding the effects of her impairments on her daily living activities was
inconsistent with the record.‘ In evaluating Kirsch’s credibility, the ALJ considered
Kirsch’s subjective complaints and limitations and observed inconsistencies
between Kirsch’s allegations and the record. Among the AlJ’s observed
inconsistences: (1) Kirsch alleged that she did not have the strength to get out of
bed, but there was no indication in the record that she was bed-ridden; (2) Kirsch
testified that her husband provides 24-hour care for her grandfather and cares for
her children, but documentary evidence from Kirsch indicated that she cared for her
grandfather's house and performed child-care duties; (3) documentary evidence that
Kirsch submitted indicated that she could not perform chores while other
documents suggested she could cook or clean on good days; (4) Kirsch testified that
she had not worked since 2004, but an earnings record showed otherwise; (5) Kirsch
alleged that her husband lifted and carried everything and she could not lift more
than one to two pounds, but she also described in the documentary record how she
was able to lift her left arm. A.R. 14. The ALJ then went on her in opinion to note
that Kirsch’s “description of her daily activities is inconsistent with her claim of

total disability at all exertional levels.” Id. at 16.

4 Kirsch notes that the ALJ failed to take into account the fluctuating nature of
Kirsch’s pain on “good” and “bad” days. Given the remand for further development
of the ALJ’s opinion on Kirsch’s credibility, the Court recommends that the ALJ
further expand on her credibility determination to include an analysis of the
fluctuating nature of Kirsch’s pain between “good days” and “bad days.”

23



medical evidence; and (8) failed to consider the side effects of her medications when
determining her credibility. Kirsch also contends that the ALJ improperly found
that her testimony regarding the effects of her impairments on her daily living
activities was inconsistent with the record. And lastly, Kirsch finds fault with the
ALJ’s use of meaningless boilerplate language in evaluating Kirsch’s credibility.

Beginning with Kirsch’s challenge to the ALJ’s use of the constantly-
criticized boilerplate language—conclusory statements that an ALJ then fails to
link with objective medical evidence—the Seventh Circuit has made clear that an
ALdJ’s use of the objectionable language does not amount to reversible error if she
“otherwise points to information that justifies [her] credibility determination.”
Pepper, 712 F.3d at 367-68. Here, the Court concludes that the ALJ provided other
sufficient reasons, grounded in evidence, to explain her credibility determination.
See Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012). Because the ALJ did that,
remand is not warranted simply on the basis that the ALJ used the suspect
boilerplate language.

This Court affords an ALdJ’s credibility finding “considerable deference,”
overturning it only if “patently wrong.” Prochaska v. Barnhart, 454 F.3d 731, 738
(7th Cir. 2006). The reason for such “special deference” is because the ALJ “is in the
best position to see and hear the witness and determine credibility.” Shramek v.
Apfel, 226 F.3d 809, 811 (7th Cir. 2000); see also Briscoe v Barnhart, 425 F.3d 345,
354 (7th Cir. 2005). In the end, however, the ALJ must connect her credibility

determination to the record by an “accurate and logical bridge.” Castile v. Astrue,

18



rejecting another part of that opinion. Kirsch’s first argument lacks merit, but her
second one fares better.

Turning to the first challenge, Kirsch asserts that the ALJ erred by failing to
address the factors listed in the Social Security regulations for evaluating medical
opinions when giving Dr. Kirincic’s opinion controlling weight. An ALJ gives a
treating medical source opinion controlling weight if the opinion on the issues of the
nature and severity of the claimant’s impairments is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2). The
regulations further provide that “[u]nless we give a treating source’s opinion
controlling weight under paragraph (c)(2) of this section, we consider all of the
following factors in deciding the weight we give to any medical opinion.” 20 C.F.R.
§§ 404.1527(c); 416.1527(c).

Here, the ALJ gave Dr. Kirincic’s opinion controlling weight, explaining that
Dr. Kirincic was a treating source, that her opinion was supported by medical
findings, and that it was consistent with the record. A.R. 16. Under the plain
language of the regulations, once the ALJ assigned Dr. Kirincic’s opinion controlling
weight, it was no longer necessary for her to further analyze the factors in 20 C.F.R.
§ 404.1527(c)(1)-(6) to determine what weight to give that opinion. Accordingly, the
ALJ did not err when she declined to include an additional analysis of the factors in

the regulations in evaluating Dr. Kirincic’s opinion.

10



falling when walking. Id. at 52-54. She testified that her husband performed the
household chores and that she could only lift up to five pounds. Jd. at 51, 53. Kirsch
indicated that she would need further surgery on her shoulder, but despite her
overall ailments, she maintained that only her back injury prevented her from
working. Id. at 50.

Kirsch concluded her testimony by mentioning her interest in a pain program
that Dr. Oken recommended. Id. at 59. She said that she would like to enter a pain
program similar to the RIC that was near her home, but stated that she needed
financial assistance to pay for the program because worker’s compensation and
Medicaid would not. Id.

Cc. Vocational Expert’s Testimony

Vocational expert Lee Knutson also testified at the hearing. A-R. 54. The ALJ
asked Knutson to consider a hypothetical individual with Kirsch’s background who
was capable of performing sedentary work with the use of a cane and with
occasional opportunities to stand and move every 30 minutes. Id. at 57-58. Knutson
estimated that about 6,700 jobs exist in the regional economy that a hypothetical
individual with these limitations could perform. Jd. at 58. The ALJ then added to
the characteristics of this hypothetical individual, asking Knutson to consider the
additional limitation of needing to be absent from work two or more days per week
due to pain complaints. Jd. Knutson responded that this limitation would eliminate

any available jobs for the hypothetical individual. Id.



The record also includes various opinions from Kirsch’s treating physicians.
In a “progress note” dated February 9, 2009, Dr. Kirincic opined that Kirsch “has
always been presenting and exaggerating her symptoms with minimal objective
findings to support her ongoing disability.” Id. at 1891. The doctor also noted that
Kirsch was capable of sedentary or light work, but added that Kirsch would be
unable to progress to that level of work without first enrolling in an active pain
management program. Jd. Dr. Oken opined in his physical RFC assessment, which
he completed in August 2009, that Kirsch would be unable to sit or stand for more
than two hours in an eight-hour workday. Id. at 1901. He also concluded that
Kirsch should be limited to lifting no more than 10 pounds occasionally and that
due to her ailments, she would likely miss more than four working days per month.
Id. at 1901-02.

B. Kirsch’s Hearing Testimony

At the hearing before the ALJ, Kirsch testified that on some days, the pain in
her back and legs prevents her from getting out of bed. A.R. 48. According to Kirsch,
this occurred about two to three days per week. Id. Kirsch then described her pain
and how she had managed it. She testified that to relieve her pain, she received six
injections in her back every month and took numerous pain medications that made
her drowsy. Id. at 48-49. Kirsch rated her pain as an eight on a scale of one to 10.
Id. at 48. She noted that she experienced difficulty sleeping because of the pain,
stating that the pain limited her to sleeping about two hours per night. Id. at 52.

Kirsch added that she had trouble walking and needed a cane to prevent her from



617 F.3d 923, 929 (7th Cir. 2010) (internal quotation marks omitted). To build that
logical bridge for a credibility determination regarding pain, the ALJ must consider
not only the objective medical evidence, but also the claimant’s daily activities; the
duration, frequency, and intensity of pain; any precipitating and aggravating
factors; the dosage, effectiveness, and side effects of medication; and functional
restrictions. See SSR 96-7p, 1996 WL 374186, at *3 (July 2, 1996); accord Villano v.
Astrue, 556 F.3d 558, 562-63 (7th Cir. 2009) (requiring analysis of factors listed in
SSR 96-7p as part of building logical bridge for credibility determinations). The
Social Security regulations require an ALJ’s credibility determination to “contain
specific reasons for the finding on credibility, supported by evidence in the case
record.” SSR 96-7p, 1996 WL 374186, at *2, 4; see also Terry v. Astrue, 580 F.3d 471,
477 (7th Cir. 2009) (“(T]he ALJ must consider the claimant’s level of pain,
medication, treatment, daily activities, and limitations, 20 C.F.R. § 404.1529(c), and
must justify the credibility finding with specific reasons supported by the record.”);
Villano, 556 F.3d at 562-63.

Kirsch makes four challenges to the ALJ’s credibility finding. Two are
successful; two are not. The two shortcomings Kirsch identifies, which each point to
the ALJ’s failure to address certain factors identified in SSR 96-7p, are sufficient to
warrant remand.

Kirsch first takes issue with the ALJ’s failure to properly consider her
lengthy treatment history and how that history affected her allegations of pain.

Specifically, Kirsch points to the ALJ’s failure to consider her significant course of

19



Legal Standard

This Court confines its review to the reasons offered by the ALJ, Steele v.
Barnhart, 290 F.3d 936, 941 (7th Cir. 2002) (citing SEC v. Chenery Corp., 319 US
80, 93-95 (1943)), and examines whether the ALJ’s decision is supported by
substantial evidence, Getch v. Astrue, 5389 F.8d 473, 480 (7th Cir. 2008).
“Substantial evidence means ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Clifford, 227 F.3d at 869 (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). This Court will “not reweigh the
evidence, resolve conflicts, decide questions of credibility, or substitute [its] own
judgment for that of the Commissioner.” Jd. A decision denying benefits need not
“provide a complete written evaluation of every piece of testimony and evidence,”
but the ALJ in rendering that decision “must build a logical bridge from the
evidence to [her] conclusion.” Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir. 2013)
(internal quotation marks omitted).

Analysis

I. The ALJ’s Evaluation of the Opinions of Kirsch’s Physicians

A. Dr. Kirincic’s Opinion

Kirsch makes two challenges to the ALJ’s analysis of Dr. Kirincic’s opinion.
First, she argues that even though the ALJ assigned Dr. Kirincic’s opinion
controlling weight, the ALJ failed to analyze the factors for evaluating medical
opinions set forth in 20 C.F.R. §§ 404.1527(©)(1)-(6) and 416.1527(c)(1)-(6). Second,
Kirsch faults the ALJ for selectively considering Dr. Kirincic’s opinion and

improperly accepting part of that opinion without explaining her reasons for

9



because she was unrepresented at the hearing, the ALJ had an added responsibility
to probe further into her hand limitations and the effect of those limitations on her
ability to work.

It is well-settled that the ALJ has an obligation to develop a full and fair
record; such a duty is heightened if a claimant is unrepresented. Thompson v.
Sullivan, 933 F.2d 581, 585 (7th Cir. 1991). In discharging this duty, “(t]he ALJ
does not act as counsel for claimant, but as an examiner who thoroughly develops
the facts.” Id. at 586.

At the hearing, the ALJ asked about Kirsch’s work history, pain, abilities,
daily activities, and past injuries. A.R. 40-54. Kirsch never brought to the ALJ’s
attention any problems concerning her wrist. Rather, she only discussed her back
and shoulder issues. Jd. at 48-54. Indeed, on two separate occasions during the
hearing, the ALJ questioned Kirsch about issues affecting her ability to work, and
she declined to mention her wrist:

Q [ALJ]: So let me ask you this. If you could get rid of your back

pain and you just had the shoulder would that, that effect,
would that prevent you from working?

A [Kirsch]: No.

Q: Okay. You can go back to work --
A: Yes.

Q: -- with that?

A Yes. I wish I could.

eK

25



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Jennifer Kirsch,
No. 11 C 9199
Plaintiff,
v. Judge Thomas M. Durkin
Carolyn W. Colvin,

Acting Commissioner of Social Security
Administration, !

weeveveveveveerverwerv

Defendant.
MEMORANDUM OPINION AND ORDER

Plaintiff Jennifer Kirsch seeks review of the final decision of the Defendant,
the Commissioner of Social Security (“Commissioner”), denying her supplemental
security income (“SSI”) under Title XVI of the Social Security Act (“Act”), 42 U.S.C.
§ 1382c(a), and disability insurance benefits (“DIB”) under Title II of the Act, 42
U.S.C. § 423(d)(2). Kirsch asks the Court to reverse the Commissioner’s decision
and award her benefits, or in the alternative, to remand the case for further
proceedings. For the following reasons, Kirsch’s motion for summary judgment is
granted insofar as it requests a remand.

Procedural History
Kirsch applied for SSI and DIB on May 11, 2007, alleging that she became

disabled on September 14, 2004. Administrative Record (“A.R.”) 62-65. The

' Pursuant to Federal Rule of Civil Procedure 25(a), Carolyn W. Colvin—who
became the Acting Commissioner of the Social Security Administration on February
14, 2013—is automatically substituted as the named defendant.

1



program she would not be able to progress to return to work.” Id. The ALJ
concluded that such a conclusion was similar to an opinion that a claimant is
“disabled” or “unable to work.” Id. In the ALJ’s view, Dr. Kirincic’s opinion
regarding Kirsch’s need for a pain program was not a medical opinion but an
“administrative finding[ ] dispositive of a case,” and consequently was an issue
reserved to the Commissioner. Jd. at 16-17 (citing 20 C.F.R. §§ 404.1527(e)(2),
416.927(e)(2)).

The ALJ’s rejection of this part of Dr. Kirincic’s opinion without further
explanation was erroneous. The ALJ provided no reason for granting controlling
weight to one part of Kirincic’s opinion (Kirsch is capable of sedentary work) while
rejecting a condition for that opinion (enrollment in a pain management program
was necessary before Kirsch could return to work). The ALJ erroneously limited the
discussion to the evidence that supported her conclusion, see Smith v. Apfel, 231
F.3d 433, 438 (7th Cir. 2000), and her failure to minimally explain her dismissal of
that critical piece of Dr. Kirincic’s opinion leaves the Court without the necessary
logical bridge connecting the ALJ’s conclusion with the evidence. See Pepper, 712
F.3d at 362; Bjornson v. Astrue, 671 F.3d 640, 647-49 (7th Cir. 2012). On remand,
the ALJ ‘might find, as she did initially, that Kirsch is capable of performing
sedentary work with certain restrictions. But before reaching this conclusion, the
regulations require that she must minimally account for the remaining part of Dr.

Kirincic’s opinion that she originally disregarded. The ALJ’s error in this regard

was not harmless.

12



Kirsch next argues that the ALJ selectively considered Dr. Kirincic’s medical
opinion. According to Kirsch, the ALJ accepted part of Dr. Kirincic’s opinion but
improperly disregarded another part of that opinion. While the final determination
of disability is ultimately left to the ALJ, not a medical source, Clifford, 227 F.3d at
870, “opinions from any medical source about issues reserved to the Commissioner
must never be ignored,” SSR 96-5p, 1996 WL 374183, at *3 (July 2, 1996).

A review of the ALJ’s decision demonstrates that the ALJ erred in her
analysis of Dr. Kirincic’s opinion. The ALJ gave controlling weight to Dr. Kirincic’s
opinion that Kirsch was capable of at least sedentary work, but rejected the doctor’s
qualification that Kirsch would be unable to return to work without participation in
an active pain management program. A.R. 16, 1891. Dr. Kirincic’s final progress
note regarding her treatment of Kirsch provided:

My opinion regarding Mrs. Kirsch’s condition, the patient has been

always presenting and exaggerating her symptoms with minimal

objective findings to support her ongoing disability. I certainly believe

the patient would be capable of at least sedentary or light duty but was

unable to progress the patient into return to work, and any attempt of

easing her pain has been only temporary. I believe that without an
active program in an interdisciplinary pain program like at RIC or

Marianjoy she will not be able to progress into return to work.

Id. at 1891. The ALJ credited Dr. Kirincic’s opinion, noting:

I give controlling weight to the treating physician’s (Dr. Kirincic)

opinion that [Kirsch] can do at least sedentary or light work. Dr.

Kirincic is an orthopedist and her conclusion is well supported by the

medical findings in the record . . . and consistent with the record as a

whole.

Id. at 16. The ALJ then went on to reject the latter part of Dr. Kirincic’s opinion,

noting that “[t]reating physician Kirincic concluded that without an active pain

11



D. The ALJ’s Decision

After considering the proffered evidence, the ALJ concluded that Kirsch is
not disabled. A.R. 12. In evaluating Kirsch’s claim, the ALJ conducted the standard
five-step sequential inquiry for determining disability, which required her to
analyze:

(1) whether the claimant is currently [unJemployed; (2) whether the

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

impairment meets or equals one of the impairments listed by the

[Commissioner], see 20 C.F.R. § 404, Subpt. P, App. 1; (4) whether the

claimant can perform her past work; and (5) whether the claimant is
capable of performing work in the national economy.

Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000) (internal quotation marks
omitted). The ALJ made the following findings: (1) Kirsch had not engaged in
substantial gainful activity since the alleged onset date of her injury; (2) her low
back pain, myofascial pain syndrome, and right shoulder impairments were severe
impairments; (3) these severe impairments do not individually or collectively meet
or medically equal one of the impairments listed in 20 C.F.R. § 404, Subpt. P, App.
1; (4) Kirsch has the residual functional capacity to perform sedentary work;? and
(5) based on this RFC, while Kirsch could not perform her past relevant work, there
were a significant number of jobs in the national economy that she could perform.
A.R. 11-12, 17-18. Based on these findings, the ALJ concluded that Kirsch is not

disabled as defined by the Social Security Act, and denied her benefits.

2 A claimant’s residual functional capacity is the “most [she] can still do despite
{her] limitations.” 20 C.F.R. § 404.1545(a)(1).

8



WL 374186, at *6. The ALJ did not do that here. To be sure, the ALJ pointed to
specific objective evidence that the ALJ believed demonstrated that Kirsch’s
allegations of pain were not credible. According to the ALJ, the medical record from
2004 to 2009 demonstrated that Kirsch’s condition had improved. Had the ALJ
stopped there and determined that Kirsch’s allegations of pain were not credible,
Kirsch would be on better footing with this argument. But the ALJ went on to also
consider: (1) the inconsistencies between Kirsch’s statements and the record; (2)
Kirsch’s admitted activities; (3) Dr. Kirincic’s observation that Kirsch had been
presenting and exaggerating her symptoms; and (4) Kirsch’s statements that she
had not complied with her prescribed treatment or medications and that she was
too busy for a pain program. A.R. 14-16. The ALJ also found significant that Kirsch
maintained that the treatment for her pain had not helped to alleviate the pain, but
the medical evidence had demonstrated her physical condition had improved
throughout the years. Id.

Kirsch points to other objective evidence in the record that she alleges
substantiates her complaints of pain. But much of the medical evidence Kirsch cites
indicate fairly unremarkable results. Accordingly, the Court declines to fault the
ALJ for noting that Kirsch’s pain allegations were not fully supported by the
objective medical evidence where the ALJ’s opinion demonstrated that she
considered a number of other factors in evaluating Kirsch’s credibility in addition to

the failure of the medical evidence to corroborate Kirsch’s claims of pain.

22



By February 2006, Dr. Kirincic concluded that no methods of alternative
therapies were available to relieve Kirsch’s pain. Id. at 620. Kirsch’s remaining pain
treatment therapy with Dr. Kirincic thus consisted of injections and a variety of
prescription medicine. E.g., id. at 624, 637, 649, 661, 1591, 1596, 1610, 1616. Dr.
Kirincic consistently diagnosed Kirsch with ongoing back pain of unknown origin.
E.g., id. at 1617, 1626, 1630, 1633, 1634. A February 23, 2006 MRI revealed normal
lumbar alignment, a very tiny small lateral disc protrusion at L3-4, a very minimal
disc bulge at L4-5, and no spinal stenosis. Id. at 1470. In June, July, and August of
2006, as a result of her weakened leg strength and back pain, Kirsch fell down
multiple times, causing injuries to her wrist, knee and face. Id. at 1594, 1599, 1608.
Kirsch’s final examination with Dr. Kirincic on October 17, 2006, revealed ongoing
thoracolumbar discomfort with no known pathology. Id. at 1587. On October 26,
2006, Dr. Kirincic declined to prescribe any additional opiate-based drugs for pain
relief. Id. at 1586.

On October 31, 2006, Kirsch saw Dr. Ning Sun who diagnosed her with low
back pain, possible radiculopathy, and possible carpal tunnel syndrome. Id. at 932.
Dr. Sun recommended further objective testing. Id. In November, Kirsch sought
emergency treatment for her back pain and was diagnosed with myofascial pain
syndrome, bilateral lower extremity radiculopathy, and lumbar degenerative disk
disease. Id. at 933, 988. An MRI of the lumbar spine and an EEG taken during
Kirsch’s stay revealed normal findings. Id. at 998-99. An MRI of the cervical spine

showed a minimal diffuse disc bulge at C4-C5. Id. at 1078.



Campbell v. Astrue, 627 F.3d 299, 308 (7th Cir. 2010); see also Larson, 615 F.3d at
751 (criticizing ALJ’s decision where it “said nothing regarding this required
checklist of factors”); Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008) (stating
when treating physician’s opinion is not given controlling weight “the checklist
comes into play”).

Here, after the ALJ declined to give Dr. Oken’s opinion controlling weight,
she was then required to consider the aforementioned factors in deciding what
evidentiary weight to afford Dr. Oken’s opinion. The ALJ failed to do this and
omitted from her analysis any discussion of the length, nature, and extent of Dr.
Oken’s treatment relationship with Kirsch. A.R. 16. Nor did the ALJ make any
reference to Dr. Oken’s specialty or the types of tests he performed while Kirsch was
under his care. Id. The ALJ simply stated that Dr. Oken’s opinion was inconsistent
with the medical record and unsupported by his own minimal examination findings
without ever explaining how or why this was the case. See id. Conclusory
statements like these have warranted remand for further explanation, and the
same result is warranted here. Clifford, 227 F.3d at 871; see also Boiles v. Barnhart,
395 F.3d 421, 426 (7th Cir. 2005). The lack of explanation required moreover is even
more problematic given that consideration of several of the factors supports the
conclusion that Dr. Oken’s opinion should be given greater weight. For example,
between January 16, 2007, and October 2, 2009, Dr. Oken treated Kirsch 21 times,
each time providing detailed and extensive findings in his evaluations. A.R. 1517-

40, 1907-24. The doctor’s findings also remained relatively consistent throughout

15



finding reserved to the Commissioner. Id. at 16-17. Again, however, the ALJ failed
to minimally articulate, how she arrived at these conclusions as she was required to
do. While the ALJ correctly noted that Dr. Oken’s opinion that Kirsch was not
capable of performing any work activities was ultimately an issue reserved to the
Commissioner, id. at 16-17 (citing 20 C.F.R. §§ 404.1527(e)(2), 416.927(e)(2)), such a
conclusion did not relieve the ALJ from discharging her responsibility to minimally
articulate the reasons she was rejecting the opinion of a treating physician.? In
sum, while the ALJ ultimately may have been correct in her conclusions regarding
Dr. Oken’s opinion, she failed to minimally articulate her reasons for discounting it.
The ALJ’s failures in this regard warrants remand.
Il. The ALJ’s Credibility Determination

Kirsch challenges the ALJ’s adverse credibility determination of her as
deficient on several grounds. She argues that the ALJ: (1) failed to properly consider
her treatment history and how that affected her allegations of pain; (2) improperly
concluded that her pain allegations were not fully supported by the objective
3 In finding the ALJ’s rejection of Dr. Oken’s opinion to be wanting, the Court
observes that the ALJ discounted Dr. Oken’s opinion on the basis that his
examination findings were minimal. But a review of the record in fact indicates to
the contrary—Dr. Oken’s treatment and examination notes were fairly extensive
and detailed. A.R. 1517-40, 1907-24. The ALJ rejected Dr. Oken’s opinion on the
additional basis that it was unsupported by the medical evidence. But a review of
the record appears that conclusion to not be entirely accurate. Dr. Oken repeatedly
cited Kirsch’s tenderness and pain to palpation, tenderness to myofascial bands and
paraspinals, and tightness in her hip flexors, e.g., id. at 1911, 1916, 1921, and also
routinely reported his diagnoses of myofascial pain syndrome, lower back pain, and
radiculopathy, e.g., id. at 1520, 1540, 1912, 1922. These results appear consistent
with similar results from Kirsch’s stay at Hinsdale Hospital on November 2, 2006.

Id. at 988 (noting findings of myofascial pain syndrome, bilateral lower extremity
radiculopathy, and lumbar degenerative disk disease).

17



2005, revealed a mild broad-based disc protrusion at the L4-5 and L5-S1 levels,
resulting in a mild flattening of the thecal sac at L4-5. Id. at 549. Several weeks
later on March 22, 2005, Kirsch sought emergency treatment for severe back pain
and pain extending into her legs. Id. at 737, 763. An MRI taken during her eight-
day hospital stay revealed no abnormalities. Id. at 743. In the months that followed,
objective testing revealed normal findings: a March 28, 2005 EMG revealed results
within normal limits, id. at 896; an April 19, 2005 discogram of the lumbar spine
proved negative, see id. at 559, 572; and an April 25, 2005 CT scan of the lumbar
spine revealed normal results, see id. at 421, 561.

Dr. Kirincic recommended various treatments to Kirsch for pain relief.
Following a referral to chiropractor Dr. Shawn Allan in May 2005, Kirsch pursued
months of manual therapy, which somewhat reduced the pain in her legs and back.
See id. at 572, 575, 581, 598. Kirsch also tried various injection therapies, none of
which resolved her pain. She attempted an epidural steroid injection on July 7,
2005, id. at 584; a steroid joint injection on August 2, 2005, id. at 350; and a psoas
and quad muscle injection on August 23, 2005, id. at 378. In November 2005, Kirsch
attempted aquatic therapy, which provided some relief. See id. at 602. Although
Kirsch pursued certain of Dr. Kirincic’s recommended therapies, she declined
others, including additional aquatic therapy, gym memberships, and a membership

in the chronic pain program at the Rehabilitation Institute of Chicago (“RIC”). Id. at

584, 1587, 1599, 1620, 1626.



Q: Besides your back pain is there anything else that’s
preventing you from working?

A: Just the leg weakness and numbness.
Id. at 50, 53. Moreover, both at the close of her testimony and at the close of the
hearing, the ALJ gave Kirsch two additional opportunities to supplement her
testimony with any other relevant information. Id. at 54, 59-60. Kirsch did not
mention any problems with her wrist at these times. Id.5

Kirsch attempts to highlight certain parts of the record demonstrating
potential carpal tunnel issues and other arm and hand limitations, arguing that the
ALJ failed to consider them in her opinion. But these mentions are few and far
between. Id. at 932 (Dr. Sun’s October 31, 2006 report mentioning “{r]ule out
radiculopathy and Carpal Tunnel Syndrome”), 1423 (Dr. Sun’s November 2, 2006
brief mention of possible carpal tunnel syndrome diagnosis), 1556, 1558 (another
Dr. Sun report in same timeframe).6 And the ALJ need not address every piece of
evidence in order to develop a full and fair record. See, e.g., Villano, 556 F.3d at 562
(‘An ALJ is not required to discuss every piece of evidence.”); Sims v. Barnhart, 309
F.3d 424, 429 (7th Cir. 2002) (“The ALJ’s failure to address these specific findings,

however, does not render his decision unsupported by substantial evidence because

5 Notably, in a letter to the Appeals Council following the ALJ’s decision, Kirsch
indicated, consistent with her omissions at the hearing, that she did not find her
hand limitations or carpal tunnel to impair her ability to work: “[The ALJ] also
writes that I was diagnosed with Carpal Tunnel, yet I’ve NEVER had a doctor even
bring anything of the sort to my attention. This made me feel as if the Judge maybe
confused someone else’s case with my case.” A.R. 147 (capitalization in original).

® Kirsch also relies on a December 18, 2008 report by Dr. Oken, id. at 1919-21, but
this report appears to contain no mention of wrist ailments.

26



Commissioner denied her applications on August 30, 2007, id. at 67, and again on
reconsideration on December 18, 2007, id. at 72, 76. Kirsch thereafter requested
and received a hearing before an administrative law judge (“ALJ”) on December 2,
2009. Id. at 130. On July 23, 2010, the ALJ issued a decision finding Kirsch not
disabled. Id. at 9. The Appeals Council denied Kirsch’s request for review on
October 21, 2011, id. at 1, making the ALu’s decision the final decision of the
Commissioner, see Shauger v. Astrue, 675 F.3d 690, 695 (7th Cir. 2012). Kirsch then
initiated this civil action for judicial review of the Commissioner’s final decision. 42
US.C. § 405(g).
Background

A. Medical Evidence

Kirsch, age 34, suffers from chronic low back pain, myofascial pain syndrome,
and a right shoulder impairment. A.R. 11. Kirsch’s pain originated with a shoulder
injury on April 25, 2004, caused by carrying heavy electronic equipment during her
employment as a customer service representative at Best Buy. Id. at 431. On
September 20, 2004, Kirsch had surgery to repair a posterior superior labral tear.
Id. at 255. Five months later, in February 2005, while undergoing physical therapy
to treat the shoulder injury, she began experiencing back pain. Id. at 304.

From March 1, 2005, through October 26, 2006, Kirsch was a regular patient
of Dr. Marie Kirincic. Id. at 1584-1655. Dr. Kirincic initially diagnosed Kirsch with
lumbar strain, mild scoliosis, secondary myofascial pain syndrome, postural

abnormalities, and muscle imbalances. Jd. at 1655. An MRI conducted on March 11,



B. Dr. Oken’s Opinion

Kirsch further challenges the ALJ’s analysis of Dr. Oken’s opinion, arguing
that the ALJ (1) failed to apply the factors set forth in 20 C.F.R. §§ 404.1527(0),
416.1527(c)—factors, she contends, the ALJ should have considered after declining
to give Dr. Oken’s medical opinion controlling weight—and (2) further failed to fully
consider the entirety of Dr. Oken’s opinion and explain why she discounted portions
of it.

The ALJ gave “little weight” to Dr. Oken’s opinion that Kirsch could perform
less than sedentary work because she found this opinion “not supported by the
minimal examination findings in his own treatment notes” and “inconsistent with
the medical record.” A.R. 16. The ALJ further noted Dr. Oken’s opinion that Kirsch
“was not capable of performing any work activities,” but discounted that conclusion
because it was an issued reserved for the Commissioner, not a “medical opinion.” Id.
at 16-17. This was the extent of the ALJ’s analysis of Dr. Oken’s medical opinion
and falls far short of the minimal justification required to sustain a decision
rejecting a treating physician’s opinion.

Kirsch first claims that even though the ALJ declined to afford Dr. Oken’s
opinion controlling weight, the ALJ was still required to apply the checklist of
factors in 20 C.F.R. §§ 404.1527(c), 416.1527(c), and explain what weight, if any, she
gave to Dr. Oken’s opinion in light of those factors. The Court agrees. A treating
physician’s opinion regarding the nature and severity of a medical condition is

entitled to controlling weight if it is supported by medical findings and consistent

13



the course of his treatment. Id. at 1520, 1540, 1911-12, 1916, 1921-22. Proper
consideration of these factors may have caused the ALJ to afford greater weight to
Dr. Oken’s opinion.

Kirsch further contends that the ALJ’s analysis of Dr. Oken’s opinion was
deficient because the ALJ failed to consider the entirety of his opinion and explain
why she rejected portions of it. Dr. Oken provided an RFC assessment of Kirsch,
opining that she would not be capable of low-stress jobs and that she could only sit
or stand for 10 to 15 minutes at a time for a maximum of two hours a day. Id. at
1900-01. Dr. Oken also noted that Kirsch required a job that would allow her to
shift positions at will and take numerous unscheduled breaks during the workday,
and further opined that due to her impairments, she would be absent from work
more than four days per month. Id. at 1901-02. The ALJ, however, failed to explain
why she rejected these portions of Dr. Oken’s opinion. Indeed, she failed to include
any discussion of these restrictions in her decision at all. See SSR 96-5p, 1996 WL
374183, at *4 (noting that “medical source statements may actually comprise
separate medical opinions regarding diverse physical and mental functions” and
that “it may be necessary to decide whether to adopt or not adopt each one”).

The ALJ provided two reasons for rejecting Dr. Oken’s opinion that Kirsch
was unable to perform sedentary work it was: (1) inconsistent with his minimal
examination findings; and (2) unsupported by the medical record. A.R. 16. The ALJ
then further rejected Dr. Oken’s additional opinion that Kirsch was not capable of

performing any work activities because that conclusion was an administrative

16