IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KENNETH LEE LAMPKIN, )

)

Plaintiff, )

) No. Lz CV L727

v.)

) Magistrate Judge

CAROLYN W. COLVIN, ) Maria Valdez

ACTING COMMISSIONER OF )

SOCIAL SECURITY,I )

)

Defendant. )

)

MEMORANDUM OPINION AND ORDER

This action was brought under 42 U.S.C. S a05G) to review the final decision

of the Commissioner of Social Security denying Plaintiff Kenneth Lee Lampkin's

claims for Disability Insurance Benefits and Supplemental Security Income. The

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

pursuant to 28 U.S.C. $ 636(c). For the reasons that follow, Lampkin's motion for

summary judgment [Doc. No. 16] is granted in part and denied in part. The

Commissioner's cross-motion for summalTr judgment [Doc. No. 22] rs denied. The

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

proceedings.

1 Carolyn W. Colvin is substituted for her predecessor, Michael J. Astrue, pursuant to Federal Rule

of Civil Procedure 25(d).
BACKGROUND

I. PROCEDURAL HISTORY

On January 8, 2009, Lampkin filed claims for both Disability Insurance

Benefits and Supplemental Security Income, alleging disability since September 10,

2008. (R.2L7-23.) His applications were denied on March 19, 2009 and upon

reconsideration on April 23,2009. (R. 90-99, 103-10.) Lampkin filed a timely

request for a hearing by an Administrative Law Judge ("AIJ"), @. 11 l-L2),which

was held on July 28, 2011. (R. 30, 46-85.) Lampkin personally appeared and

testified at the hearing and was represented by counsel. (Id.) Vocational expert

Richard Fisher also testified. (Id.)

On September 1, zOlL, the ALJ denied Lampkin's claims for both Disability

Insurance Benefits and Supplemental Security Income. (R. 30-39.) The ALJ also

found Lampkin not disabled under the Social Security Act. (1d,.) The Social Security

Administration Appeals Council then denied Lampkin's request for review, (R. 1-B),

leaving the AIJ's decision as the final decision of the Commissioner and, therefore,

reviewable by the District Court under 42 U.S.C. $ a05(g). See Haynes u. Barnhart,

416 F.3d 62L, 626 (7th Cir. 2005).

U. FACTUAL BACKGROUND

A. Background

Lampkin was born on February b, 1960 , 

(R. 2rT, 22L), and.was bl years old

at the time of the ALJ hearing, (R. 34). He is five feet nine inches tall, weighs

around 185 pounds, and he has an eleventh grade education. (R.2To, z7b). At

2
various times, he has been employed as a laborer in the construction, packing, and

printing industries. (R. 56-57,286.) Lampkin was incarcerated between November

2009 and November 20L0. (R. 34, 61.) After his release, he resided both at a

"halfivay house" and at "Elite independent living." (R. G2,72.)

Lampkin alleges a disability onset date of September 10, 2008, when he was

48 years old. (R. 34,2L7-33.) The alleged disability results from various

impairments, including diabetes, nerve damage, and a diminished ability to use his

arms and hands. (R. 34.) In his first Disability Report, Lampkin reported that he is

unable to lift anything or use his left arm. (R. 271.)

B. Testimonv and Medical Evidence

1. Lampkin's Testimony

Lampkin testified that he has a severe, throbbing pain, which shoots down

from his neck. (R. 58-59, 69.) The pain travels through his shoulders, arms, and.

hands. (Id.) He also claimed that he has tingling and numbness in his fingers and

hands. (R. 59.) Lampkin testified that his right hand is more problematic than his

left. G.. 69.) Lampkin stated that as a result of the tingling and numbness, he has

trouble lifting and holding objects. (R. 59, 74.) Lampkin also testified that he takes

the medications Motrin and Robaxin, (R. 34,59), and that he takes Metformin for

his diabetes, (R. 68).

Lampkin claimed that, unless he takes medication, he experiences pain

throughout the day, and even with medication, he still suffers from some pain. (R.

3
73-74.) During questioning by his own attorney, Lampkin answered that he was

experiencing pain during the hearing itself. (R. 73.)

Lampkin testified that he is unable to work or take care of himself because of

his impairments. (R. 68.) For example, he has problems ironing clothes and washing

dishes, and he must rely on family members to do those tasks. (R. 68-69.) Lampkin

also testified that he often has pain while performing personal hygiene. (R. 7a.) He

claimed that although he is able to wash his feet with his left hand, he cannot use

his right. (/d.) When he takes showers, he leans against a wall, and he cannot walk

more than one block without becoming tired. (R.74-75).

Lampkin testified that finding a job was part of a post-prison program that

he entered into, but he was nearly denied entry into the program because his

medical condition allegedly precluded him from attaining a job. (R. 64.) In both the

independent living program and the halfivay house where he stayed after prison,

Lampkin performed chores such as cooking, mopping floors, and washing dishes. (R.

70-7L.)

2. Medical Euidence

As a preliminary note, Claimant's recitation of the facts surrounding his

various treatments is somewhat muddled.2 Nevertheless, it appears as if Lampkin

received treatment from Fantus Health Center ("Fantus") several times during

early 2008. (R. 434-38.) At a February 15, 2008 appointment, he complained of

back pain, which had allegedly begun after he received a gunshot wound to his

2 For instance, Claimant states that he "began" treatment at the Fantus Health Center after moving

from Florida to Illinois in late 2008 or early 2009. (Pl.'s Br. at 3.) However, the record indicates that

he was treated at Fantus at least as early as February lb, 2008. (R. 4Bb-86.)
spine in 1988. (R. 435.) He stated that his back and neck pain grew worse and

sharper "by twisting motions." (Id.) He also complained of left arm paresthesias.

(Id.) Lampkin's x-rays showed some amount of degenerative disc disease, and he

was diagnosed with osteoarthritis of the spine. (R. 486.)

Between September 10 and September 18, 2008, Lampkin was hospitalized

at Jackson Memorial Hospital in Miami, Florida. (R. 4zB-29.) Although he was

originally admitted because of perineal pain, he also complained. of neck pain. (R.

423-24.) On October 7,2008, Lampkin underwent x-rays at Jackson, which showed

"spondylosis." (R. 395, 419.) On November 13, 2008, a magnetic resonance imaging

("MRI") report showed "degenerative changes of the cervical spine." (R. Bg8-gg.)

on November 18, 2008, Lampkin returned to Jackson because of

"worse[ning]" cervical neck pain. (R. 395-97.) At the time, he claimed that the pain

was predominately in his left neck and left shoulder, radiating down from his neck

through his shoulder and arm. (Id.) He also stated that he was unable to lift up his

left shoulder and suffered from numbness in his left fingers. (1d.)

The subsequent medical examination found that, although Lampkin had a

full range of motion in his left neck, he had pain upon "palpation on the lateral

aspect of the spine." (1d.) Furthermore, he was unable to "abduct his arm without

hiking his shoulder," and he had "weakness" in his left arm "second.ary to pain.,,

Qd.) Lampkin was diagnosed with "cervical stenosis." (R. 396.) He was referred to

physical therapy, but he had not done any therapy as of November 18, 2008. (1d.)

5
Lampkin later moved to Illinois and once more began receiving treatment at

Fantus. (R. 434-45.) At a January 5, 2009 appointment, Lampkin claimed that his

pain had been getting worse. G". 44L-42.) On January 23,2009, he complained of

neck pain radiating down his left arm, as well as numbness and tingling in his left

hand. (R. 439.) X-rays showed "chronic posttraumatic disc disease" with "probable

canal stenosis, muscle spasm." (R.444.)

On February 3, 2009, Dr. Sherfunnissa Husain began treating Lampkin, who

had come in complaining of neck, shoulder, and back pain. (R. 5Bb-86.) The neck

and shoulder pain had purportedly worsened during the four to five months leading

up to the appointment. (R. 538.) Dr. Husain diagnosed Lampkin with chronic

posttraumatic disc disease, "with probable canal stenosis" and "muscle spasm." (1d,.)

At a July 14,20Og appointment, Dr. Husain noted. that Lampkin had "on and

off' neck pain and stiffness. (R. 534.) Dr. Husain filled out a "Spinal Impairment

Questionnaire," (R. 460-68), in which she diagnosed Lampkin with cervical disk

disease and spinal stenosis (as well as with diabetes and hepatitis C), (R. 462). As

for clinical findings, Dr. Husain found that Lampkin had a limited. range of motion

at the cervical spine, tenderness at the cervical spine of "7" to "8," reflex changes,

and muscle atrophy and weakness. (R. 462-63.) Dr. Husain also noted pain in

Lampkin's right and left shoulders. (R. 463.) In support of this diagnosis, Dr.

Husain identified the aforementioned x-ray report from January 28,2009. (R. 464.)

Dr. Husain reported that Lampkin's primary symptoms were pain, which

accompanied movement of the neck and both shoulders, and associated. fatigue. (,Id.)

6
Dr. Husain also stated that Lampkin could only sit for four hours and stand/walk

for two hours during the typical eight-hour workday. G,. 465.) In addition, Lampkin

would need to get up and move around every half hour. (1d.) According to Dr.

Husain, Lampkin could occasionally lift, but could never carry, up to five pounds.

(R. 465-66.) Further, Lampkin's symptoms were severe enough to frequently

interfere with his attention and concentration. (R. 466.) Dr. Husain also reported

that Lampkin was incapable of even "low stress" work, he would likely need to be

absent from work an average of two to three times per month, and he would need to

take unscheduled breaks during an average workday. G,. 466-67.)

In addition, Dr. Husain listed a variety of limitations that would interfere

with Lampkin's ability to work at a regular job on a sustained basis. (R. 468.)

Specifically, Lampkin would need to avoid wetness, noise, fumes, gases,

temperature extremes, humidity, dust, and heights. (1d.) Further, Lampkin had

"Iimited vision," and he would need to refrain from pushing, pulling, kneeling,

bending, or stooping. (R. 468.) Dr. Husain also noted that Lampkin had been

prescribed several medications, including Gabapentin, Tylenol III, and lbuprofen.

(R.466.)

In March 2009, Dr. Chansoo Kim performed a consultative Residual

Functional Capacity Assessment ("RFC"), (R. 446-53), and concluded that Lampkin

could occasionally lift twenty pounds, frequently lift ten pounds, stand/walk and sit

for six hours in an eight-hour workday. (R. 447.) Lampkin could only occasionally

crawl or climb ladders, ropes, and scaffolds. (R. 448.) Dr. Kim found no visual,
communicative, or environmental limitations, yet he did report that Lampkin was

limited in his left arm's "reaching" ability. (R. 449-50.) Otherwise, Dr. Kim found no

manipulative limitations. (R. 449.) Dr. Kim reported that Lampkin's statements

regarding lifting, reaching, completing tasks, and using his hands were "partially

credible." (R. 451.) However, Dr. Kim concluded that while Lampkin's medically

determinable impairments could be expected to produce "some limitations in

function," the extent of the limitations exceeded what was supported by Dr. Kim's

review of the objective medical findings. (1d.) Further, Dr. Kim stated that Lampkin

had no "visible physical limitations." (Id.) on April 22, zoog, Dr. Ernst Bone

affirmed Dr. Kim's RFC. (R. 459.)

As noted above, Lampkin was incarcerated for a time, and he received

medical treatment in prison. (R. 479-507.) A recorded list of his medical history

included references to spinal stenosis and arthritis. (R. 480.) Of note, prison medical

records suggest that Lampkin took several types of pain medication during his

incarceration, including Ibuprofen/Ivlotrin and Robaxin. (R. 480-507.) On October

17, zoLo, Lampkin saw a nurse for "severe back pain." G. 502.) At another point in

2010,3 Lampkin again saw a nurse for back pain, and he informed the nurse that he

had "spinal stenosis." (R. 504.)

After completing his prison sentence, Lampkin saw Dr. Husain in early

201I-4 (R. 532.) Lampkin presented for a follow-up evaluation of diabetes. (1d,.) Dr.

Husain conducted a review of his symptoms and found no joint or muscle pain as

3 The exact date of examination is not visible on the copied document provided in the record. (R. b04.)

a This document is undated, and the parties seemingly disagree as to the exact date. (Pl.'s Br. at 5;

Def.'s Br. at 3.)

8
well as no numbness or tingling.s (1d.) Nevertheless, Dr. Husain diagnosed

Lampkin with "cervical disc disease and low back pain." (R. 533.)

On May 23,20LL, Dr. Husain filled out a "Multiple Impairment

Questionnaire" for Lampkin. G,. 553-60.) Dr.Husain's responses on this

questionnaire were similar to her responses on the 2009 Spinal Impairment

Questionnaire. Dr. Husain again described Lampkin's neck and back pain and

stated that he had cervical spinal stenosis. (R. 553-54.) Dr. Husain reported that

Lampkin s pain was "severe" because it rated a"lO" on a scale of one to ten. (R.

555.) In a regular eight-hour workday, Lampkin would be able to sit for only four

hours, would be able to stand for only five, and would need to move around every

two. (1d.)

Dr. Husain marked that Lampkin was both "never" and "occasionally" able to

lift up to five pounds and was both "never" and "occasionally" able to carry up to five

pounds. (R. 556.) According to Dr. Husain, Lampkin was significantly Iimited in his

ability to do repetitive reaching, handling, fingering, and lifting.(Id.) Further,

Lampkin was "essentially precluded" from grasping, turning, and twisting objects

with either hand. (1d.) Lampkin was "significantly limited but not completely

precluded" from using his fingers and hands for "fine manipulations." (R. 556-57.)

Moreover, Dr. Husain noted that Lampkin's symptoms were "frequently"

severe enough to interfere with his attention and concentration and that Lampkin

was incapable of even "low stress" work. (R. 558.) Lampkin would need to take

5 Because Lampkin's appointment was related to his diabetes, it is unclear what weight to give this

review.
unscheduled breaks to rest every three to four hours during an average workday

and would require ready access to a restroom. (R. 558-59.) Dr. Husain also listed

other limitations that would affect Lampkin's ability to work, including the need to

avoid fumes, gases, temperature extremes, humidity, dust, and heights; his limited

vision; and the need to avoid pushing, pulling, kneeling, bending, and stooping. (R.

559.) As she did in the earlier questionnaire, Dr. Husain listed Lampkin's

medications, which now included Ibuprofen and Robaxin. (R. 557.)

3. Vocational Expert's Testimony

Richard Fisher testified at the hearing as a Vocational Expert ("VE"). The

ALJ asked the VE several questions involving a hypothetical person who is closely

approaching advanced age, has an eleventh grade education, and who shares

Lampkin's vocational background. (R. 76.)

First, the ALJ asked the VE whether there would be any work available to

the hypothetical person if he were limited to light work-able to lift up to twenty

pounds occasionally; lift and carry up to ten pounds frequently; unable to kneel,

crawl, and climb ladders, ropes, and scaffolds; able to stoop or crouch only

occasionally; and limited to only occasional flexion of the neck and reaching with the

Iefrb arm. (1d.) The VE responded that this hypothetical person could work several

jobs including routing clerk (3,750 available jobs in Illinois according to the VE) and

mail clerk (1,650 available jobs). (R.76-77.)

Second, the ALJ asked the VE whether there would be any work available to

the hypothetical person if, instead of light work, he were timited to sedentary work

10
and able to lift up to ten pounds occasionally. (R. 77.) The VE responded that this

hypothetical person could work as a seeder (1,700 available jobs), telephone quote

clerk (2,400), and order clerk (1,200). (Id.)

Third, the ALJ asked the VE whether there would be any work available to

the hypothetical person if he were limited to light work and further limited to only

occasional handling and fingering with his left hand. (R.77-78.) The VE responded

that this hypothetical person could still work as a routing clerk and could also work

as a sales attendant (4,070 available jobs) and vending machine attendant (4,000).

(R. 78.)

Fourth, the ALJ asked the VE whether there would be any work available to

the hypothetical person if he were limited to sedentary work and further limited to

only occasional handling and fingering with his left hand. (R.77-Tg.) The VE

responded that this hypothetical person would be unable to perform any jobs. @.

78.)

The VE added that, if both hands of the hypothetical person had limitations

on occasional handling and fingering, the hypothetical person would be unable to

perform any jobs regardless of whether he were limited to light or to sedentary

work. (R. 79.) The VE also testified that, if the hypothetical person could not reach

away from his body with either hand, the hypothetical person would be unable to

perform any jobs. (R. 79-80.)

Lastly, the VE testified that the hypothetical person would be unable to

perform any jobs if he needed to miss work two or more times per month. (R. 80-

11
81.) Similarly, to hold a job, the hypothetical person would need to be on task

during at least eighty percent of the workday. (R. 81.)

C. ALJ Decision

The ALJ found that Lampkin has not engaged in substantial gainful activity

since the alleged onset date of September 10, 2008. (R. 32.) The ALJ further found

that Lampkin has the severe impairments of cervical spine pain, Iumbar spine pain,

and diabetes. (1d.) However, the ALJ found that none of the impairments, alone or

in combination, meets or medically equals any Iisting of impairments. @. 83.)

Next, the ALJ found that Lampkin has the RFC to lift up to twenty pounds

occasionally; to lift or carry up to ten pounds frequently in light work; to stand or

walk for about six hours and sit for about two hours per eight-hour workday; to

never kneel, crawl, or climb ladders, ropes, or scaffolds; and to only occasionally

stoop, crouch, and perform flexion of the neck. (Id.) In addition, Lampkin has the

RFC for occasional reaching, overhead reaching, gross manipulation, and fine

manipulation with his left arm. (Id.)

The ALJ concluded that the objective medical evidence did not support the

alleged extent of Lampkin's symptoms and limitations. (R. 34.) Generally, the ALJ

found that Lampkin has not received the type of med.ical treatment that would be

expected for a "totally disabled individual," and instead has received only limited,

routine, and conservative treatment consisting mainly of medication. @. 34-85.)

The ALJ noted that Lampkin's physical examinations have been essentiallv within

I2
normal limits except for pain and tenderness. (R. 35.) Moreover, according to the

ALJ, the record did not support the allegations of disabling diabetes.(Id.)

The ALJ noted that Lampkin's allegations and testimony were not credible.

(R. 35-36.) The ALJ suggested that Lampkin s time in prison serves as an

"alternate explanation for his continued unemployment." (R. 36.) Furthermore, the

ALJ stated that Lampkin appeared to have fully participated in the hearing

without overt pain or distraction.(Id.\

The ALJ explicitly rejected Dr. Husain's medical opinions as recorded by the

questionnaires she had filled out in 2009 and 2OIl. (R. 36-37.) The ALJ found the

opinions to be inconsistent with the objective medical evidence, not supported by Dr.

Husain's own objective findings, and seemingly based solely upon Lampkin's

subjective complaints. (1d.) Further, many of Dr. Husain's opinions were

"speculative," "extreme," or "implausible." (Id.)

On the basis of the RFC assessment and the VE testimony, the ALJ

determined that Lampkin is unable to perform any past relevant work. (R. 37.)

However, the ALJ also noted that Lampkin is able to perform other jobs that exist

in significant numbers in the national economy and thus is not disabled under the

Social Security Act. (R. 38.)

DISCUSSION

I. ALJ LEGAL STANDARD

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

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

13
physical or mental impairment which can be expected to result in death or which

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

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

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

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

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

enumerated in the regulations? (a) Is the claimant unable to perform her former

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

arc.e2o(d@).

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

claimant is disabled. Young u. Secy of Health & Human Serus., gbT F.2d,886, Bgg

(7th Cir. L992). A negative answer at any step, other than at step 3, precludes a

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

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

to the Commissioner to show the claimant's ability to engage in other work existing

in significant numbers in the national economy. Id.

il. JUDICIAL REVIEW

section a05(g) provides in relevant part that "[t]he findings of the

Commissioner of Social Security as to any fact, rf supported by substantial evidence,

shall be conclusive." 42 U.S.C. S a05(g). Judicial review of the ALJ's decision is

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

evidence or based upon legal error. Clifford u. Apfel,227 F.Bd86B, 869 (7th Cir.

t4
2000); Steuenson u. Chater,105 F.3d 1151, 1153 (7th Cir. 1997). Substantial

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

to support a conclusion." Richardson u. Perales,402 U.S. B8g, 401 (1971); Skinner u.

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

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

resolving conflicts in evidence, or deciding questions of credibility . Shinner,4TS F.3d

at 841.

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

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

behind her decision to deny beneftts." Zurawski u. Halter,245 F.Sd 881, 889 (Zth

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

accurate and logical bridge from the evidence to his conclusion ." Clifford,, 227 F.gd.

at 872. The ALJ must at least minimally articulate the "analysis of the evidence

with enough detail and clarity to permit meaningful appellate review." Briscoe ex

rel. Taylor u. Barnhart, 425 F.Sd 345, Bb1 (7th Cir. 2005); Murphy u. Astrue, 4g6

F.3d 630, 634 (7th Cir. 2007) ("An ALJ has a duty to fully develop the record before

drawing any conclusions . . . and must adequately articulate his analysis so that we

can follow his reasoning . . . ."); see Boiles u. Barnhart, Bgb F.Bd 421, 42b (7th Cfu.

2005).

Where conflicting evidence would allow reasonable minds to differ, the

responsibility for determining whether a claimant is disabled falls upon the

Commissioner, not the court. See Herr u. Sulliuan, g1zF.2d,178, 1g1 (7th Cir.

15
1990). However, an ALJ may not "select and discuss only that evidence that favors

his ultimate conclusion," but must instead consider all relevant evidence . Heruon u.

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

III. ANALYSIS

Lampkin argues that the ALJ decision was in error because: (1) the ALJ

failed to properly evaluate Lampkin's credibility; and (2) the ALJ failed to follow the

so-called "treating physician rule."

A. Credibility

An ALJ's credibility determination is granted substantial deference by a

reviewing court unless it is "patently wrong" and not supported by the record.

Schmidt u. Astrue,496 F.Bd 8BB, 848 (7th Cir. 2oo7); Jerus u. Barnhart, B4T F.Bd

209,2L3 (7th cir. 2003); Powers u. Apfel, z0z F.Bd 4Bt, 4Bb (7th cir. 2000).

However, an ALJ must give specific reasons for discrediting a claimant, and "[t]hose

reasons must be supported by record evidence and must be 'sufficiently specific to

make clear to the individual and to any subsequent reviewers the weight the

adjudicator gave to the individual's statements and the reasons for that weight."'

Lopez ex rel. Lopez u. Barnhart, BZG F.3d b3b, 5Bg-40 (7th Cir. 200g) (quoting

Zurawski, 245 F.3d at 887-88).

When assessing the credibility of an individual's statements about symptoms

and their functional effects, an ALJ must consider all of the evidence in the case

16
record. See SSR 96-7p.e This includes "the individual's own statements about

symptoms, statements and other information provided by treating or examining

physicians . . . and any other relevant evidence in the case record." Id. at *1. If the

individual attends an administrative proceeding conducted by an ALJ, the ALJ may

consider his or her own observations of the individual as part of the overall

evaluation of the credibility of the individual's statements.Id. at *b.

Lampkin initially argues that the ALJ applied the wrong legal standard by

including a meaningless "boilerplate" statement often included in Social Security

decisions.T However, the mere presence of the boilerplate language is insufficient

grounds for remand. See, e.9., Carter u. Astrue, 418 Fed. Appx. 8gg, g0b-06 (7th Cir.

zOlL) (unpublished decision). Boilerplate is permissible when an adjudicator "sa[ys]

more" in support of a credibility finding. See Richison u. Astrue, 462 Fed. Appx.

622,625 (7th Cir. 20f 1) (unpublished decision). In this case, although the ALJ

attempted to supplement the boilerplate statement, his credibility finding was

insufficiently reasoned and requires that this case be remanded.

6 Interpretive rules, such as Social Security Regulations ('SSR'), do not have force of law, but they

are binding on all components of the Social Security Administration. 20 C.F.R. S 402.8b(b)( l); aciord.

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

7 The language in question is as follows: "After careful consideration of the evidence, 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." (R. 34.) This credibility "template" has been criticized because of its

meaninglessness and the circular logic that it embraces. See Bjornson u. Astrue, 671 F.gd 640,645

(7th Cir. 2012) (finding that the template "gets things backwards" and that it is "meaningless

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

claimant's credibility"). This inverted approach violates the rule that a claimant's statements about

the intensity and persistence ofpain or other symptoms cannot be disregarded solely because they

are not substantiated by objective medical evidence. Id.. at 646 (citing SSR 96-7p). The claimant's

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

T7
Notably, the ALJ followed up his credibility conclusion with a largely neutral

recitation of medical evidence contained in the record. (R. 34-35.) While the ALJ did

provide specific facts in this section, it is not clear how the facts applied to the

credibility assessment. The ALJ apparently rested his credibility finding on the

following bases: (1) Lampkin has received only infrequent, routine, and conservative

treatment for his pain, (R. 34-3); (2) Lampkin has not consistently sought

treatment for diabetes, aside from medication refills, (R. 35); (3) Lampkin was able

to participate fully and closely in the hearing without being distracted or exhibiting

overt pain, (R. 36); (4) during Lampkin's prison stay, a nurse noted that he had no

visible motor difficulties, (R. 35); (b) a prison nurse noted that Lampkin had a

demanding demeanor when he sought treatment, (id.); and (6) Lampkin's continued

unemployment might simply be the result of his period of incarceration, (R. 86).

First, the ALJ noted that Lampkin has received infrequent, routine, and

conservative treatment since his 1988 gunshot wound. The ALJ listed several

reasons supporting his finding that Lampkin has only received "limited'treatment:

Lampkin has not been referred to a pain clinic or specialist for back pain; he does

not use an "assistive device" to walk; and the record does not show that he has been

recommended for surgery or has attended physical therapy. @,. 35.) But the ALJ did

not reconcile those findings with contrary evidence in the record. See Zurawski,24S

F.Sd at 888. At the hearing, Lampkin testified that Dr. Husain has recommended

both physical therapy and surgery. (R. 66-67.) Lampkin stated that he has not yet

gotten into the physical therapy clinic because the clinic is still "debating" the idea.

18
(R. 67.) The record also suggests that Lampkin did not undergo physical therapy in

2008 because he had difficulty securing transportation. (R. 396.) As to surgery,

Lampkin testified that Dr. Husain has warned him of the "5Ol5O chance" of postsurgery paralysis, and Lampkin also explained that he is "scared" about the

possible risks of surgery due to his diabetes. (R. 66-67.) Dr. Husain's records also

note that Lampkin missed neurosurgical and MRI appointments due to his

incarceration. (R. 553.) The ALJ did not examine the meaning of this testimony or

evidence, nor is it clear what weight, if any, the ALJ gave it when assessing

Lampkin's credibility.

The ALJ noted that Lampkin's "physical examinations have been essentially

within normal limits" aside from some pain and tenderness. (R. 35.) Ignoring for the

moment that the record does contain some objective signs of impairment, (R. 398-

99), it is the severity of Lampkin's pain that is precisely at issue in the credibitity

determination. It is relevant that Lampkin has complained of back pain since at

least 2008, (R. 435), and that he took pain medication before, during, and after his

incarceration, (R. 466, 480-507,557). See Wyatt u. Astrue, No. 0g C b769, 2011 wL

21494L4, at **76-17 (N.D. IIl. June l,2OLt).

The ALJ clearly drew a negative inference from Lampkin's lack of certain

treatments and his nonuse of an assistive walking device. However, "[t]here are

many possible explanations" one may have for not pursuing treatment at a pain

clinic. See Parker u. Astrue, 597 F.3d g2o, g22 (Zth Cir. 2010). The ALJ never

questioned Lampkin at the hearing about either pain clinics or walking devices.

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"[A]n ALJ must first explore the claimant's reasons for the lack of medical care

before drawing a negative inference." Shauger u. Astrue,675 F.3d 690, 696 (7th Cir.

2Ol2) (citing SSR 96-7p). Lampkin's potential reasons must be explored on remand.

Next, the ALJ based his the credibility finding on his own observations of

Lampkin at the hearing, at which Lampkin was apparently able to participate

"fully" and demonstrated no "overt pain behavior." (R. 86.) However, the Seventh

Circuit has doubted the probative value of this type of observational evidence. See

Powers,207 F.3d at 436. But more significantly, the AIJ did not explain how

Lampkin's full participation in the hearing served to undercut his credibility. When

one merely fails to exhibit pain during a hearing, it does not automatically follow

that he is incredible or is not suffering from pain that would prevent him from

working on a full-time basis. Moreover, under questioning by his own attorney,

Lampkin testified that he was experiencing pain during the hearing, and he

claimed he had been massaging his hand and forearm due to pain. (R. 78.) It is not

clear whether the ALJ considered this testimony, because it was not mentioned in

the opinion.

In his decision, the ALJ also cited a prison nurse's observation that Lampkin

was able to "rock[] back and forth then side to side" and that Lampkin had no

difficulty ambulating or getting up or down from the examination table. (R. Bb, b04.)

The ALJ suggested that this observation was "important[]," but he did not elaborate

as to why or how. (R. 35.) The ALJ also did not explain the weight given to the

nurse's observation with respect to the overall credibility assessment.

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The ALJ also noted that prison treatment notes indicated that Lampkin had

a "demanding demeanoy''at times and had once raised his voice to a nurse, (R. 35,

504), but he neglected to articulate what relevance this anecdotal evidence might

have to the credibility finding. Indeed, without further analysis, the fact that

Lampkin "demanded [that] a nurse give him, Tylenol," (R. Bb), could be seen to

bolster, rather than undermine, Lampkin's allegations of chronic pain.

Finally, the ALJ opined that Lampkin's continued unemployment could be

the result of Lampkin's criminal record, rather than any physical impairment. (R.

36.) However, the AIJ did not expound upon this speculative statement, and

accordingly its relevance is unclear.

B. TreatinE Physician Rule

Lampkin next argues that the ALJ failed to follow the "treating physician

rule" by not appropriately weighing the opinion of his treating physician, Dr.

Husain. An ALJ must give controlling weight to a treating physician's opinion if the

opinion is both "well-supported" and "not inconsistent with the other substantial

evidence" in the case record. 20 C.F.R. S 404.L827(c); see Scott u. Astrue,647 F.3d

734,739 (7th Cir. 20ll). The ALJ must also "offer good reasons for discounting" the

opinion of a treating physician. Campbell u. Astrue,62z F.Bd 2gg, 806 (7th Cir.

2010) (internal quotations omitted); Scott,647 F.Bd at TB9.

As the ALJ pointed out, the two questionnaires filled out by Dr. Husain both

contain cursory responses with little elaboration. (R. 36, 462-68, bb$-60.) Further,

they are almost entirely based on Lampkin's subjective complaints. (1d.) While

2t
subjective complaints are relevant, they are also the "opposite of objective medical

evidence," and as such, they "do not compel the ALJ" to accept Dr. Husain's opinion.

See Schaaf u. Astrue,602 F.3d 869, 875 (7th Cir. 2010).

As to the objective bases for Dr. Husain's opinions, the doctor did cite to xrays dated January 23,2009. (R. 444,464.) These x-rays showed "chronic

posttraumatic disc disease, moderate at C5l6,lesser degree, C6/7 with probable

canal stenosis." (R.444.) But while this is relevant objective evidence, the x-rays

alone do not support the extent of the limitations described by Dr. Husain.

Moreover, Dr. Husain's opinions are inconsistent with other substantial

evidence in the record, specifically the RFC completed by Dr. Kim. As an initial

matter, although both the Claimant and the ALJ have characterized, Dr. Kim as a

"non-examining" physician, (R. 36; Pl. Br. at 8), Dr. Kim's RFC refers to a "face to

face interview" with Lampkin as well as additional observations. (R. 451.) While a

contradictory opinion of a non-examinirug physician does not "by itself' constitute

substantial inconsistent evidence, see Gudgel u. Barnhart,345 F.3d 467, 470 (7th

Cir. 2003), a rron-treating physician's opinion may generally suffi.ce as such, see

Ketelboeter u. Astrue. 550 F.3d 620, 625 (7th Cir. 2008).

For the above reasons, the ALJ appropriately declined to give Dr. Husain's

assessment "controlling" weight. But this determination does not end the inquiry.

An ALJ must still determine what value the treating physician's assessment does

merit. Scott,647 F.3d at 740; Campbell,627 F.3d at 308. The regulations clearly

require the ALJ to consider a variety of factors, including: (1) the length, nature,

22
and extent of the treatment relationship; (2) the frequency of examination; (3) the

physician's specialty; (4) the types of tests performed; and (5) the consistency and

support for the physician's opinion. See id.

In this case, the ALJ did not address the required factors before rejecting Dr.

Husain's opinions completely "because they are not consistent with the objective

medical evidence." (R. 36.) But this conclusory rationale merely justifies not giving

the opinions controlling weight and obscures the correct legal standard. Though the

ALJ noted that Dr. Husain's opinions are neither well-supported nor consistent

with other substantial evidence, he did not discuss the relevance of the two key

questionnaires being largely consistent with one another. The ALJ also seemingly

ignored the fact that Dr. Husain treated Lampkin numerous times between 200g

and 2011, both before and after his incarceration. (R. 531-38.) Evidence from the

hearing suggests that Dr. Husain has prescribed medicine, performed physical

therapy and other tests, and recommended surgery. (R. 6b-67.) The ALJ himself

noted during the hearing that Lampkin had been seeing Dr. Husain "for a while."

(R. 65-) The ALJ should have addressed and weighed this evidence in his decision.

However, the Court expressly emphasizes that it has no opinion as to the proper

weight to give Dr. Husain's opinions on their own or in relation to Dr. Kim's RFC.

CONCLUSION

For the foregoing reasons, Plaintiff Kenneth Lee Lampkin's motion for

summary judgment [Doc. No. 16] is granted in part and denied in part. The

commissioner's cross-motion for summary judgment [Doc. No. 22] is denied. The

23
Court finds that this matter should be remanded to the Commissioner for further

proceedings consistent with this Order.

SO ORDERED. ENTERED:

DATE: March 5. 2014

r1II

HON. MARIA VALDEZ

United States Magistrate Judge

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