IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

EDWARD E. BARDLETT,

Plaintiff, 

v. 

CAROLYN W. COLVIN,

,

Commissioner of

Social Security, 

Defendant. 

)

) 

) No. 12 C 2043

)

) Magistrate Judge Arlander Keys

)

)

)

)

)

)

)

 MEMORANDUM OPINION AND ORDER

This case is before the Court on Edward Bardlett’s motion for

summary judgment. He seeks a remand or outright reversal of the

Commissioner’s decision to deny his application for Disability

Insurance Benefits and Supplemental Security Income. For the reasons

set forth below, Plaintiff’s motion is granted and the case is

remanded to the Commissioner for further proceedings.

BACKGROUND

On December 17, 2009, Plaintiff, Edward E. Bardlett, applied for

Disability Insurance Benefits (“DIB”) and Supplemental Security Income

(“SSI”), alleging that he became disabled as of April 1, 2007 due to

bouts of swelling in his hands, feet, throat, tongue, and other areas

caused by non-histaminergic angioedema. (R. at 10, 27). His

application was denied initially and upon reconsideration. (R. at

10.) Mr. Bardlett requested a hearing before an administrative law

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judge, and the case was assigned to ALJ Victoria Ferrer, who held the

requested hearing on August 8, 2011. (R. at 10, 23). 

I. Plaintiff’s Hearing Testimony

At the hearing before the ALJ, Mr. Bardlett appeared by

video, represented by counsel. (R. at 25.) He testified that he

was 49 years old. (R. at 27.) With regard to work history, he

testified that his last full time employment was “probably in

‘08” which consisted of “doing office work.” (R. at 28.) Mr.

Bardlett testified that at some point in 2008 he lost that job

and then applied for unemployment benefits. (R. at 28.) He

testified that, thereafter, he began working for the City of

Chicago as a traffic controller, which was his last place of

employment. (R. at 27-28.) He testified to working part time,

meaning less than five days a week with the hours ranging between

16 and 40 hours per week, though his hours exceeded 40 about

twice per month. (R. at 28-29.) Mr. Bardlett testified that he

was laid off by the City of Chicago in October of 2009. (R. at

29.) Mr. Bardlett testified that he applied for multiple

positions, including telemarketing and janitorial positions, but

did not obtain employment. (R. at 29.) 

Mr. Bardlett testified that he lost his job with the City of

Chicago due to a condition called “angioedema” which causes

“flare-ups” of swelling in areas like his hands, feet, tongue,

and throat. (R. at 30-31.) He testified that he believes the

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flare-ups began around three and a half to fours years ago, when

he was still employed by the City of Chicago. (R. at 33.) He

testified that the flare-ups vary in their severity and location

and can occur at any time of the day without warning. (R. at 30,

40.) He testified, for example, that he might wake up with

swelling in various areas. (R. at 40-41.) He testified that the

worst of such “flare-ups” includes swelling in his throat and

tongue, making it very difficult to swallow or speak. (R. at

30.) He testified that he has experienced these extreme flareups around 10-15 times in the past three and a half years, that

they are life-threatening, and require hospitalization. (R. at

30-31.) Mr. Bardlett testified that, when an extreme flare-up

occurs, he takes himself to the hospital, where he is

administered medicine intravenously that causes the swelling to

completely subside within 12 to 72 hours. (R. at 33.) He

testified that his hospital stays range from eight to 72 hours. 

(R. at 42.) He testified that the minor flare-ups (i.e. those

that are not life-threatening) consist of swelling in his hands,

including his fingertips, and feet that make it painful and

difficult to walk or carry and manipulate items, the latter due

to a reduction in tactile sensation. (R. at 31, 34, 41.) Mr.

Bardlett testified that the minor flare-ups occur about two to

three times per month, even when he is regularly taking

medication to treat his condition, and about three to four times

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per month when he is not regularly taking the medication. (R. at

31, 42.) He testified that, when the minor flare-ups occur, his

course of action is to take his home prescription and then rest

in bed while waiting for the swelling to subside. (R. at 31,

41.) He testified that he avoids standing during this time,

though he could stand “for a while” if he forced himself despite

the pain in his feet. (R. at 41.) Mr. Bardlett testified that

his wife and two daughters help him get around the house when he

has swelling. (R. at 42.) He testified that the home

prescription stops the swelling within one to three hours, though

it takes 12 to 72 hours for the swelling to completely subside

and for him to regain sensation in the swollen areas. (R. at 32,

41.) 

Mr. Bardlett testified that, in addition to angioedema, he

has diabetes, elevated cholesterol levels, and arthritis in his

right knee. (R. at 34.) He testified that he treats his

diabetes with medication and his arthritis with over-the-counter

pain pills. (R. at 34-35.) He testified that on at least two

occasions, the arthritis, combined with the angioedema symptoms,

made the pain so severe that he could not walk. (R. at 34.) He

also testified that he underwent surgery for abscesses in 2010,

and after the surgery he “healed up” and has been “fine from

that.” (R. at 35.)

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Mr. Bardlett testified that, while on the job as a traffic

controller, he would try to “fight through” the pain and swelling

of minor flare-ups, whereas extreme flare-ups forced him to the

hospital and thus off work for the time being. (R. at 33.) He

testified, for example, that if his feet swelled, his supervisor

would allow him to either take a break or direct traffic from the

sidewalk instead of the street. (R. at 36.) He testified that,

during an eight hour shift, he might have to take a couple of

breaks; if traffic was not very busy, he was allowed to break for

a few minutes for every few hours or so. (R. at 36.) He

testified that he has missed several days of work per year

because of hospitalizations for extreme flare-ups. (R. at 37.) 

He testified that he also had to miss work once or twice per

month when the swelling in his feet became too severe to report

to his job. (R. at 37.) 

With regard to his medication treatment for angioedema, Mr.

Bardlett testified that, before he was diagnosed with angioedema,

his doctors believed that the swelling was an allergic reaction

to medications he was already taking, and they continuously

changed his medications to no avail. (R. at 33.) He testified

that, even after he was diagnosed with angioedema, the medication

that was prescribed to treat the condition, tranexamic acid, was

not available in the United States and would need to be ordered

from overseas. (R. at 38.) 

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He testified that initially he ordered the drug from a

pharmacy in Australia, where the drug was the least expensive,

and then later from Canada. (R. at 38.) Mr. Bardlett testified

that, because it could take anywhere from eight to twenty-one

days for the drug to arrive, he attempted to order the drug as

far in advance as was possible. (R. at 38.) He testified that,

nevertheless, there would be periods of time when he would not

have any medication. (R. at 38.) He testified that the

swelling, either of the minor or extreme variety, would occur if

he missed his medication for a day or two. (R. at 38.) He

testified it was somewhat difficult to afford the overseas

medication. (R. at 40.) He testified that also he missed doses

due to his initial hesitancy in taking the medication. (R. at

39.) He testified that he was hesitant because the drug’s side

effects, “as it was explained to [him]” included color blindness,

which he misunderstood as blindness. (R. at 39.) 

He testified that, as a result of his hesitancy, he avoided

taking the drug for several months after being prescribed, during

which time he made multiple visits and stays at the hospital. 

(R. at 39-40.) He testified that eventually his hesitancy wore

off and he began taking the medication “as a preventative” after

his doctor explained to him that the benefits far outweighed the

potential side affects. (R. at 40.) He testified that he has

not experienced any side effects from the drug. (R. at 42-43.) 

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Mr. Bardlett testified that the drug became available in the

United States about two years ago, that he began taking the U.S.

drug in January of 2011, and that he currently no longer misses

doses. (R. at 39.) Mr. Bardlett testified that, since he has

become consistent with his medication, he has not experienced a

flare-up severe enough to require hospitalization. (R. at 40.) 

II. Vocational Expert’s Hearing Testimony

The ALJ also heard testimony from Ronald Malick, a

Vocational Expert (“VE”) who had reviewed Mr. Bardlett’s work

record and exhibit file and heard Mr. Bardlett’s testimony before

the ALJ. The VE testified that Mr. Bardlett’s traffic controller

job constituted a skilled position of medium physical demand

under the Dictionary of Occupational Titles and that a

hypothetical person with the physical limitations similar to

those experienced by Mr. Bardlett could no longer perform his

job. (R. at 43.) The VE then testified that Mr. Bardlett would

be limited to entry level, unskilled positions of light physical

demand, and that Mr. Bardlett’s age, education, and work history

narrowed this category to the following jobs existing in the

national and regional (Illinois) economy: ticket seller (3,200

Illinois/78,600 nationally), labeler (9,200 Illinois/73,600

nationally), routing clerk (17,700 Illinois/447,600 nationally),

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cashier (117,000 Illinois/2.9 nationally), and office helper (700

Illinois/ 14,600 nationally). (R. at 44-45.) 

The VE testified that the labeler and routing clerk jobs

would be eliminated if the hypothetical person required a

sit/stand option with alternating intervals of one hour. (R. at

45.) The VE then testified that the ticket seller job would be

eliminated if the hypothetical person was limited to “frequent[]”

handling and fingering-i.e. because of swelling in the hands-but

did not need the sit/stand option. (R. at 46.) Further, the VE

testified that the ticket seller, labeler, and routing clerk jobs

would be eliminated if the hypothetical person was both limited

to frequent handling and fingering and needed the sit/stand

option. (R. at 46.) The VE also testified that, if the

hypothetical person’s degree of handling and fingering was

further limited to “occasional,” the office helper and cashier

jobs, in addition to the ticket seller job, would be eliminated. 

(R. at 47.) 

The VE also testified that, if the individual required two

or more days off a month because of a medical condition, all work

in any of the before-mentioned hypotheticals would be eliminated. 

(R. at 48.) The VE also testified that, if a person’s

productivity level consistently falls below 80% by, for example,

getting “off-task” because of pain, that person will not maintain

employment. (R. at 48.) He testified that, when a person is

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“off-task” depends on the job: a cashier or ticket seller, for

example, need only be “on-task” when customers are present,

whereas a traffic controller must remain on-task while he is out

on the street, and a traffic controller who is off-task for more

than five percent of the time will not maintain that job. (R. at

48.)

III. Medical Record

a. Angioedema Issues

In addition to the testimony of Mr. Bardlett and the VE, the

record before the ALJ includes a wealth of medical records

primarily documenting visits to the ER of the West Suburban

Medical in Oak Park for bouts of swelling. The record shows four

such visits in 2006. On January 1, 2006, Mr. Bardlett was

admitted for mild swelling in his lips and throat. (R. at 388.)

He was diagnosed with oropharyngeal angioedema, specifically in

the lips and uvula, and was given Benadryl, Solu-Medrol, and

Pepcid by IV. (R. at 385, 388.) The medical record for that

visit shows a past medical history of hypertension and

hyperlipidemia. (R. at 384.) Progress notes do not show that

the swelling reduced within the first two hours of treatment. 

(R. at 388-389.) The medical record further shows that Mr.

Bardlett was on Lipitor, for hyperlipidemia, and Lisinopril, for

hypertension, at the time. (R. at 387.) The attending

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physician, Dr. Eugene Kim, indicated his belief that the swelling

was caused by an allergic reaction to Lisinopril and so switched

Mr. Bardlett to Nifedipine, a calcium channel blocker. (R. at

389, 427.) 

On April 5, 2006, Mr. Bardlett again visited the ER of West

Suburban for mild tongue swelling, where he was diagnosed with

angioedema and an allergic reaction. (R. at 394.) He was given

Solu-Medrol, Pepcid, and Benadryl by IV. (R. at 396.) Progress

notes show that he felt better within an hour of treatment. (R.

at 396.) The medical record indicates that Mr. Bardlett was

still taking Lipitor at the time of the visit, but a treatment

note by Dr. Kim instructs Mr. Bardlett to “stop Lipitor” as the

swelling might be due to an allergic reaction to the drug. (R.

at 395, 397, 427.) By this time, Dr. Kim had taken Mr. Bardlett

off of Nifedipine, also for allergy purposes, and substituted

hydrochlorothiazide. (R. at 395, 429.) 

On October 26, 2006, he was admitted for mild swelling in

his tongue and throat that made it difficult for him to swallow

and speak. (R. at 399.) He was diagnosed with angioedema of the

uvula and was given Solu-Medrol, Benadryl, Pepcid, and SoluMedrol. (R. at 399.) Progress notes show that the treatment

reduced the swelling over the next couple of hours and that he

felt much better by the next day. (R. at 400-401, 420.) 

Progress notes also indicate that Mr. Bardlett had been

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prescribed Zetia two months before but was instructed by his PMD

to stop Zetia when he noticed tongue swelling days before this

visit. (R. at 405.) 

On November 1, 2006, Mr. Bardlett was admitted for swelling

in his throat and tongue and was diagnosed with angioedema. (R.

at 427, 430.) Specifically, progress notes show that the

attending physician, Dr. John Kouklakis, believed Mr. Bardlett

suffered from “allergic angioedema.” (R. at 429.) For that, Dr.

Kouklakis immediately started Mr. Bardlett on Prednisone and also

kept Mr. Bardlett on hydrochlorothiazide for hypertension. (R.

at 429-430.) Progress notes show that Mr. Bardlett felt better

by the next day. (R. at 439.)

During the October 26, 2006 visit, the attending physician,

Dr. Don Williams, completed a Physician Orders for Consultation

form, instructing Mr. Bardlett to consult with a specialist, Dr.

Edward Lisberg of the Asthma and Allergy Center of Chicago. (R.

at 413.) Dr. Williams indicated the reason for the consultation

as determining the underlying problem for Mr. Bardlett’s

“recurrent angioedema.” (R. at 413.) Thereafter, on December

11, 2006, Mr. Bardlett consulted with Dr. Lisberg, where Mr.

Bardlett filled out a questionnaire on his medical history. (R.

at 209-214.) There, Mr. Bardlett indicated that he suffered from

tuberculosis in 1971, high blood pressure in 2006, and elevated

cholesterol in 1999, and that he had previously undergone a

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coronary angiogram. (R. at 209-211.) On that same form, Dr.

Lisberg diagnosed Mr. Bardlett with angioedema and prescribed to

him the drug tranexamic acid to be taken orally daily. (R. at

214.)

A consultation letter dated January 2, 2007 by Dr. Lisberg

to Mr. Bardlett’s West Suburban primary care physician at the

time, Dr. Williams, reports a “summary of the findings and

recommendations” following the consultation. (R. at 267.) For

“impressions,” Dr. Lisberg provides “Recurrent, Non-histaminergic

Angioedema.” (R. at 267.) Under “recommendation,” Dr. Lisberg

provides:

Due to relative infrequency of episodes, and lack of 

severity to GI, respiratory system involvement, Mr. 

Bardlett has elected not to take tranexamic acid as 

preventive tx. The use of this agent has been 

associated with reported reduction in frequency and 

severity of episodes. Due to ocular, renal, and possible 

 stroke-related side effects, Mr. Bardlett believes that 

 these side effects pose a potentially greater risk than 

 benefit at this time...If increased symptom severity or 

 frequency, re-evaluation regarding above tx, with 

 further recommendations for continuing care under your 

 supervision. If acute severe episode occurs, use of 

 tranexamic acid 1 g qid may be of benefit in reduction 

 of symptoms (note, that this agent is likely not 

 commonly stocked in hospital formularly.”

 

(R. at 267.) 

 On January 9, 2007, Mr. Bardlett came to West Suburban

reporting a reoccurrence of swelling and was diagnosed with nonhistaminergic angioedema. (R. at 777.) Treatment notes show

that he elected not to take tranexamic acid, though previously

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prescribed by Dr. Lisberg, out of concern of its side effects. 

(R. at 777.) He visited again on February 2, 2007, complaining

of swelling in his throat that made it difficult for him to

swallow. (R. at 302, 307.) The attending physician, Dr.

Williams, again diagnosed Mr. Bardlett with non-histaminergic

angioedema and admitted him to the ICU. (R. at 303.) The

treatment notes show that Dr. Williams restarted Mr. Bardlett on

Lipitor and hydrochlorothiazide while also prescribing Lamisil. 

(R. at 453, 455.) The treatment notes show that Mr. Bardlett

still refused to take tranexamic acid in any form out of fear of

its side effects. (R. at 307.) According to the treatment

notes, tranexamic acid is the only treatment for nonhistaminergic angioedema, but was not available in the United

States at the time. (R. at 307, 311.) The treatment notes

indicate that Mr. Bardlett’s swelling “resolved” by the next day

despite not taking tranexamic acid by IV. (R. at 311.) 

Mr. Bardlett made a follow-up to this visit on February 6,

2007, reporting some swelling in his right knee. (R. at 780.) 

Treatment notes indicate “Dr. Lisberg will assist patient to

resume tranexamic acid on an outpatient basis.” (R. at 780.) 

Mr. Bardlett again visited West Suburban on February 22, 2007,

complaining of a “lump” in his throat, and was diagnosed with

non-histaminergic angioedema. (R. at 263.) Treatment notes show

that he agreed this time to take tranexamic acid by IV, which

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reduced the swelling within a couple of hours, and was soon after

discharged. (R. at 262, 469.) 

The record further indicates that Mr. Bardlett was diagnosed

with obesity during a visit to West Suburban on 1/22/08, morbid

obesity on 6/5/09, and diabetes on 3/30/09. (R. at 258, 282,

583.) For the latter, Mr. Bardlett was prescribed Metformin and

discussed home care for his diabetes with the attending

physician, Dr. Paula Oldeg, including proper diet and weight

loss. (R. at 253, 260.) 

The record documents 19 more visits by Mr. Bardlett to the

West Suburban ER for flare-ups on the following dates: 4/19/07,

9/4/07, 9/14/07, 1/22/08, 3/3/09, 4/6/09, 6/3/09, 6/5/09, 6/9/09,

8/12/09, 1/4/10, 1/8/10, 2/14/10, 4/5/10, 7/1/10, 7/5/10,

8/23/10, 8/27/10, 9/2/10, 11/21/10. Treatment notes for these

visits show Mr. Bardlett complaining of swelling to his throat,

tongue, face, and/or lips, all symptoms of angioedema. (R. at

240, 271, 284, 295, 326, 332, 342, 366, 548, 606, 632, 647, 745,

753, 773, 788, 794, 831.) Treatment notes show that the swelling

had existed anywhere between 2-24 hours prior to the visit. (R.

at 240, 248 272, 287 295, 303, 338, 606, 632, 712, 831.) 

Treatment notes show that Mr. Bardlett sometimes reported

difficulty breathing, swallowing and/or tightening in his throat. 

(R. at 240, 272, 287, 295 301, 307, 345, 366, 550, 583, 595, 634,

759.) Treatment notes show that, during some visits, Mr.

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Bardlett also complained of swelling in his hands and feet, and

in one case his knees. (R. at 240, 272, 287, 753.) Treatment

notes show that the swelling was classified as “acute,” “severe,”

or “chronic” on six visits during this period-on 9/14/07, 4/6/09

6/3/09, 2/14/10, 4/5/10, 7/5/10, 8/27/10-and mild to moderate on

the rest. (R. at 248, 328, 335, 342 495, 550, 751.) 

The treatment notes also show that Mr. Bardlett was

administered tranexamic acid by IV during each visit, typically

after consultation with Dr. Lisberg by the attending physician,

normally 1 gram every 2-4 hours for up to 12-16 hours, depending

on Dr. Lisberg’s instruction, and monitored for improvement over

that period. (R. at 242, 248, 272, 284, 298, 305, 326, 334, 342,

366, 548, 553, 586, 596, 606, 632, 647, 654, 745, 756, 776, 833.) 

Treatment notes show that the IV treatment typically reduced the

swelling within a few hours. (R. at 244, 252, 272, 275, 328,

336, 344, 369, 494, 517, 595, 650, 747, 770, 836.) 

Treatment notes indicate that Mr. Bardlett was often kept

overnight and into the next day in the ICU to monitor further

reduction in swelling, with particular attention paid to his

airway, and discharged after it was determined either that he was

stable, had no blockage in his airway, or that the swelling had

fully “resolved.” (R. at 279, 285, 300, 371, 564 586, 596, 624

642, 661, 726 747, 758, 775.) Treatment notes for the 4/5/10

visit show that he was kept two nights because the hospital’s

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plan was to discharge Mr. Bardlett upon arrival of his shipment

of tranexamic acid from Canada. (R. at 345-346, 701.) 

Treatment notes for his 11/21/10 visit show that he was not

discharged until 11/24/10, at which point there was “minimal

facial swelling” and the swelling was deemed “resolved.” (R. at

850, 854, 856.) Treatment notes for this visit again indicate

that Mr. Bardlett was kept longer in the ICU in part to await

arrival of his tranexamic acid shipment. (R. at 857.) 

Treatment notes show that he was discharged on a few

occasions without an overnight stay in the ICU, either because

the swelling fully “resolved” or he was deemed sufficiently

stable within a few hours. (R. at 242, 250, 331.) The treatment

notes further reflect that most of these flare-ups resulted from

Mr. Bardlett running out of tranexamic acid, as prescribed by Dr.

Lisberg, and thus missing doses over one or more days as Mr.

Bardlett was waiting for more of the drug to arrive from

Australia and later Canada. (R. at 240, 248, 279, 284, 299, 346,

366, 595, 606, 643, 647, 833, 857.) 

Treatment notes for two visits, on 4/6/09 and 2/14/10,

indicate that Mr. Bardlett was taking his home prescription of

tranexamic at the time of the visit. (R. at 336, 550.) 

Treatment notes for two other visits, on 7/5/10 and 8/23/10, are

ambiguous as to whether Mr. Bardlett was on the drug, as they

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both advise Mr. Bardlett to continue with his home medications

but fail to indicate that he had run out. (R. at 331, 745.) 

Treatment notes show that, following each visit, Mr.

Bardlett was advised to stay on his home regime of tranexamic

acid, as directed by Dr. Lisberg, make a follow-up appointment

with his primary care doctor at West Suburban, and return for

reoccurrences of swelling in his face or throat. (R. at 281,

333, 245, 254, 279, 290, 300, 325, 331, 333, 346, 528, 538, 728,

744, 815.) Treatment notes show the “trigger” for the flare-ups

remained unknown throughout this period. (R. at 280, 488, 626,

836.) Treatment notes indicate that Mr. Bardlett continued to

be treated and take medication for diabetes, hypertension, and

high cholesterol throughout this period. (R. at 372, 496, 524,

559, 583, 615, 637, 659, 716, 762, 815, 839, 929.)

The record further contains treatment notes by Dr. Lisberg

dated 4/7/09, 4/13/09, 6/3/09, 10/22/09, 4/22/10, and 7/1/10,

documenting consultations with Mr. Bardlett, consisting of Mr.

Bardlett contacting Dr. Lisberg with complaints of tongue/throat

swelling because of missed doses and Dr. Lisberg advising Mr.

Bardlett to proceed to the hospital. (R. at 224-225, 227, 229,

231-232.) For the 4/13/09 note, Dr. Lisberg indicated that Mr.

Bardlett: 

had reduced tranexamic acid to 500 mg bid with 

episodic mild breakthrough~once weekly. Patient 

states 3/16/09 episode abated with 1 mg tid 

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for a few days. Notes episode 4/7/09 tongue

swelling after awakening and noted progression within

few hours and unable to swallow additional pills due to 

tongue swelling. Patient with prompt response to ER 

without further progression...

 

 (R. at 232.) 

The 4/13/09 treatment note shows that Dr. Lisberg

recommended that Mr. Bardlett increase his daily tranexamic acid

dosage to 1 g, and further prescribed 1 g IV doses of tranexamic

acid “for patient home supply to be administered in ER or

hospital setting.” (R. at 232). Dr. Lisberg also indicated that

“as patient w/o any acute episodes on 1 gm bid TA; advise to

maintain at this dose as no side effects.” (R. at 232.) 

On 6/3/09, Dr. Lisberg noted, “stressed to pt not to wait re

rx re-order.” (R. 229.) On 4/22/10, he noted “pt stable if w/o

missing doses but readily acute exacerbation w/o rx.” (R. at

225.) On 7/1/10, he noted “Asked patient as to why he again has

allowed his rx to run out without backup, states ‘other issues

going on in life’; he understands that without his rx he is at

risk for potential life threatening episode.” (R. at 224.) On

10/22/10, he noted “Pt states ‘cannot miss medicine without

having swelling episode’...Pt changed to Canadian pharmacy and

without missing refills.” (R. at 227.) Dr. Lisberg also noted

that “w/o sign episodes on tranexamic acid w/o over side

effects.” (R. at 227.) 

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The record shows that Dr. Lisberg penned another

consultation letter, dated April 14, 2009, to Mr. Bardlett’s West

Suburban primary care physician at the time, Dr. Thomas Albert,

providing an updated “summary of findings and recommendations”

based particularly on the 4/13/09 visit. (R. at 215.) Under

“impression,” Dr. Lisberg provides: 

Spontaneous, recurrent angioedema...Patient symptoms

resolved with Tranexamic acid, dosed between 250 and

1000mg/d; patient experiencing weekly mild episodes

at dosing of 250 mg bid. Previous exacerbations

related to missed rx doses, without other apparent

etiology...No evidence of thrombotic, liver, or

color vision rx side effects. 

(R. at 215.)

Under “recommendation,” he provides:

Patient advised to increase daily Tranexamic acid to

500 

mg bid [twice daily]...It would likely be useful for

Mr. Bardlett to maintain a home supply of

intravenous Tranexamic acid for him to bring on

travel or to any ER facility for acute treatment as

it is unlikely that emergency care facilities will

have this medications available...Re-evaluation in 6

months, with further recommendations for continuing

care under your supervision. 

 (R. at 215.)

b. Non-Angioedema Issues

The record also indicates visits to West Suburban for nonangioedema related issues. On May 13, 2007, Mr. Bardlett

underwent an echocardiogram with doppler. (R. at 784.) The

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reviewing physician, Dr. Lou Ivanovic, noted in his conclusion:

“Dilated, mildly hypertrophic left ventricle. Normal systolic

function. Left atrial enlargement.” (R. at 784.) On June 14,

2007, Mr. Bardlett underwent an x-ray of his right knee because

of pain. (R. at 783.) The reviewing physician, Dr. Williams,

found:

13 mm smoothly marginated calcific density in the 

anterior joint space suggestive of a loose body. 

Moderate narrowing of the patellofemoral compartment. 

No evidence of acute fracture or dislocation. 

Moderate suprapatellar joint effusion. 

(R. at 783.)

On December 11, 2010, Mr. Bardlett was admitted to have

abscesses on his abdomen and buttocks removed. (R. at 886.) A

Consultation Report completed prior to surgery indicates that Mr.

Bardlett had “recurrent deep subcutaneous abscesses” over the

past 3 years “which he has managed successfully with warm, moist

packs.” (R. at 920.) The report indicates that the decision to

surgically treat these abscesses was made after they had grown

“rapidly” within the past week and became “associated with pain,

tenderness, fever, and chills.” (R. at 920.) The record shows

that the attending surgeon, Dr. Fred Tiesenga, performed

successful operations on the abdomen and buttocks abscesses on

December 13 and 15, respectively, and discharged him on the 17th. 

(R. at 886, 888, 900.) A December 12 treatment note shows that,

since Mr. Bardlett received his tranexamic acid prescription two

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days prior, he had experienced flare-ups, and that since his last

hospitalization at West Suburban for a flare-up-on 11/24/10-he

experienced “daily non-life threatening episodes.” (R. at 959.) 

The record shows that Mr. Bardlett took all of his doses of

tranexamic acid per his prescription during this stay. (R. at

997, 1007, 1012, 1017.) Treatment notes further show that Mr.

Bardlett had facial and tongue swelling at the time of the

12/13/10 operation. (R. at 954.) Treatment notes show that,

prior to discharge, Mr. Bardlett was instructed on how to selfadminister wound care at home for the affected areas. (R. at

921.) 

On May 3, 2011, Mr. Bardlett underwent a colonoscopy for

rectal bleeding. (R. at 1037.) The performing physician, Dr.

Kamran Heydarpour, noted that “[i]nternal grade II hemorrhoids

were found. Otherwise, the colon appeared to be normal. No

masses, polyps, or diverticuli were seen.” (R. at 1039.) 

Treatment notes show that his last dose of tranexamic acid came

the previous day. (R. at 1042.)

The record further documents follow-up visits for some of

Mr. Bardlett’s flare-up hospitalizations-on 3/6/07, 4/24/07,

5/29/07, 8/14/07, 1/29/08, 3/18/08-follow-ups for hypertension on

6/17/08, 10/28/08, and 11/25/08, for diabetes on 4/30/09,

5/21/09, 7/2/09, 9/17/09, 11/19/09, and 2/11/10, and routine

check-ups on 1/15/08 and 10/08/09. (R. at 781, 782, 785, 786,

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794, 795, 796, 797, 798, 802-807, 810.) Treatment notes for the

1/15/08 check-up show that Mr. Bardlett was experiencing 

“occasional swelling” in his feet and hands and for the 2/11/10

visit, plantar fasciitis. (R. at 790, 810.) Treatment notes for

the 11/25/08 visit also show that Mr. Bardlett was currently

experiencing swelling in his throat and difficulty swallowing. 

(R. at 797.) Treatment notes for the angioedema-related followups indicate that Mr. Bardlett consulted with Dr. Lisberg

following the flare-up hospitalizations to have his prescription

of tranexamic acid refilled, but that in a couple of cases, he

was still waiting for the shipments to arrive at the time. (R.

at 781, 782, 785, 786, 795, 706, 798.) 

Treatment notes for the 8/14/07, 3/18/08, 6/17/08 and

10/28/08 follow-up shows that Mr. Bardlett expressed an

improvement in his angioedema. (R. at 786, 795, 798, 796.) 

Notably, treatment notes for the 10/28/08 follow-up show that Mr.

Bardlett’s last flare-up was in January of 2008. (R. at 798.) 

Further, treatment notes for the 6/17/08 visit show that Mr.

Bardlett was taking his tranexamic acid prescription regularly. 

(R. at 796.) Treatment notes for the 1/15/08 and 3/18/08 also

indicate that Mr. Bardlett was “resuming” his doses of tranexamic

acid. (R. at 790, 795.)

IV. Mr. Bardlett’s SSA Filings

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On February 23, 2010, Mr. Bardlett completed a Function

Report, in which he stated that, despite his condition, he is

able to function normally for the most part. (R. at 159.) For

his daily routine, he stated that he wakes up around 4 or 5 a.m.

and eats breakfast a couple hours later. (R. at 158.) He stated

that, from mid-morning to late afternoon, when he has no

swelling, he devotes much of his time to religious studies,

including attending religious meetings at his church. (R. at

158.) 

He stated that he closes the day by eating dinner, taking

medications, and sometimes watching television before going to

bed. (R. at 158.) He stated that his wife prepares most meals,

though he is able to prepare simple things like sandwiches,

taking him from a few minutes to an hour or more to complete. 

(R. at 161.) He further stated that he can perform household

chores, when not swollen, like doing laundry, washing dishes, and

cleaning, again taking him from a few minutes to an hour or more. 

(R. at 161-162.) 

He testified that he does not drive, but goes out daily

either by walking or public transportation. (R. at 163.) He

stated that, in addition to attending religious meetings twice a

week, he goes out weekly to shop for items like groceries or

clothes, and occasionally to see friends or a movie. (R. at 163-

164.) He stated that, when the flare-ups do occur, they come on

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rapidly and without warning, preventing him from performing most

of his normal activities. (R. at 164.) He stated that the

swelling makes it difficult for him to speak, see, walk, use his

hands, sleep, swallow, and breathe. (R. at 159.) 

He stated that swelling, particularly in his throat and/or

tongue, has hospitalized him 17-21 times in the past 2 1⁄2 to three

years, and that the swelling in his hands and feet make it

difficult to perform simple tasks like dressing, shaving, eating,

and combing his hair. (R. at 159.) On the list of items

affected by his impairments, Mr. Bardlett checked 8 of the 19

boxes: lifting, standing, walking, kneeling, talking, stair

climbing, completing tasks, and using hands. (R. at 165.) In

terms of walking, Mr. Bardlett indicated that he can walk several

blocks before needing to stop and rest. (R. at 165.) Those that

he did not check are squatting, bending, reaching, sitting,

hearing, seeing, memory, concentration, understanding, following

instructions, and getting along with others. (R. at 165.) 

He indicated below these boxes that he has a normal

attention span, follows written and spoken instructions “very

well,” gets along well with authority figures, handles stress

normally, and feels “o.k.” with changes in his routine. (R. at

165-166.) Mr. Bardlett noted that his “disabling condition,”

non-histaminergic angioedema:

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is generally controllable-but not curable-with special

medication. However, even with the medication I have 

experienced ‘break through’ episodes of swelling, 

ranging in degree from mild to severe. While there are

no known or conclusively known triggers for episodes 

of swelling, I have noticed that periods of increased 

stress, exposure to cold and/or intense sunlight, and 

trauma (bumps, dental work, etc) do seem to cause 

swelling in my case. 

(R. at 168.) 

Finally, in response to a question about “unusual behavior

or fears,” he stated that he fears “the unpredictable nature of

my condition and not knowing what might trigger the swelling,”

“new or unfamiliar circumstances [like] activities, foods,” and

“being far from the hospital where I know I can receive the

needed medical attention should an emergency arise.” (R. at 165-

166.) 

Mr. Bardlett also completed a Disability Report that is

undated. (R. at 147-156.) He described himself as 5’7” and

weighing 325 lbs. (R. at 148.) He claimed non-histaminergic

angioedema, diabetes type 2, and hypertension as conditions

limiting his ability to work. (R. at 148.) For the “Work

Activity” section, he claimed that he stopped working on October

1, 2008 “[b]ecause of other reasons” including “a dispute of my

time off for medical and personal leave.” (R. at 149.) He

further claimed that his condition caused him to make changes to

his work activity beginning on January 2, 2008, and that his

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condition became severe enough to keep him from working beginning

on June 1, 2009. (R. at 149.) 

With regard to his job history, Mr. Bardlett described his

traffic controller job as working “part time outside controlling

traffic.” (R. at 151.) He noted that he worked that job 8 hours

per day, 4 days per week, and during an 8-hour workday, he walked

for 2 hours, stood for 6 hours, stooped for 1 hour, and reached

for 8 hours. (R. at 150-151.) He further noted that he “did not

have to lift anything” for his job specifically, but that he

“frequently” lifted 25 lbs., and that 20 lbs. was the heaviest he

had lifted. (R. 138.) 

V. RFC Assessment 

On March 3, 2010, Dr. Towfig Arjmand, a non-examining

consultative physician, completed a Physical RFC Assessment of

Mr. Bardlett based on his review of Mr. Bardlett’s medical

record. (R. at 313-320.) Under “primary diagnosis,” Dr. Arjmand

noted non-histaminergic angioedema and diabetes mellitus, and

under “secondary diagnosis” he noted hypertension and obesity. 

(R. at 313.) For exertional limitations, Dr. Arjmand determined

that Mr. Bardlett could frequently lift or carry 10 lbs. and

occasionally lift or carry 20 lbs; that he could sit, stand,

and/or walk about 6 hours in an 8-hour workday; and that he had

no limitations in his ability to push or pull. (R. at 314.) 

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Regarding postural limitations, Dr. Arjmand also determined

that Mr. Bardlett could occasionally climb ramps or stairs, but

never ladders, ropes or scaffolds; and could occasionally stoop,

kneel, crouch, balance or crawl. (R. at 315.) Dr. Arjmand based

his assessment of Mr. Bardlett’s postural limitations on Mr.

Bardlett’s obesity. (R. at 316.) Dr. Arjmand further found no

manipulative, visual, communicative, or environmental

limitations. (R. at 316-317.) 

Dr. Arjmand noted that Mr. Bardlett had a height of 5’7” and

weighed 330, giving a BMI of 51, and that Mr. Bardlett was

alleging non-histaminergic angioedema, type 2 diabetes, and

hypertension. (R. at 320.) He also noted that Mr. Bardlett had

a “history of recurrent angioedema. Does well on medication, when

off of meds has exacerbations.” (R. at 320.) Finally, he noted

that Mr. Bardlett’s “statements are credible and consistent with

the objective medical findings.” (R. at 320.)

On August 19, 2010, Dr. Marion Panepinto, a non-examining

consultative physician, also completed a Physical RFC Assessment

of Mr. Bardlett based on a review of Mr. Bardlett’s medical

record. (R. at 381.) Under “primary diagnosis,” Dr. Panepinto

noted angioedema and under “secondary diagnosis” she noted

diabetes. (R. at 374.) For exertional limitations, Dr.

Panepinto determined that Mr. Bardlett could frequently lift or

carry 10 lbs. and occasionally lift or carry 20 pounds; that he

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could sit, stand and/or walk for about 6 hours in an 8-hour

workday; and that he had no limitations in his ability to push or

pull. (R. at 375.) 

Where asked to explain her assessment of Mr. Bardlett’s

exertional limitations, Dr. Panepinto noted that “claimant was

diagnosed in 2006 with angioedema...when medication is not used

the claimant has c/o facial edema and tongue edema which is noted

on exams. He does respond well to the use of medication...He

also has a diagnosis of hypertension which is well controlled

with no evidence of related complications. He was diagnosed in

2009 as diabetic. Glucose 100...The claimant is obese with a BMI

of 51.7.” (R. at 375-376.) 

Regarding postural limitations, Dr. Panepinto determined

that Mr. Bardlett could occasionally climb ramps or stairs, but

never ladders, rope, or scaffolds; and could occasionally

balance, stoop, kneel, crouch, or crawl. (R. at 376.) Dr.

Panepinto based her assessment of Mr. Bardlett’s postural

limitations on his obesity. (R. at 376.) Dr. Panepinto further

found no manipulative, visual, communicative, or environmental

limitations. (R. at 377-378.) 

Dr. Panepinto further noted that Mr. Bardlett “has acute

episodes of swelling if he does not use required medication to

treat his condition. If medicated he is viewed to be capable of

performing SGA within the restrictions of the RFC. There is no

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TSS or controlling weight issue. Adl restrictions are seen as

credible and supported by the evidence in file.” (R. at 381.) 

The record before the ALJ also includes a memorandum from

Mr. Bardlett’s attorney. (R. at 197-203). There, after

summarizing the relevant procedural and medical histories,

counsel for Mr. Bardlett argued that his impairments- nonhistaminergic angioedema, degenerative joint disease in the right

knee, and morbid obesity-meet or equal a listed impairment or, in

the alternative, make him “functionally unemployable.” (R. at

202.) For the latter, counsel argues that Mr. Bardlett is

entirely precluded from “performing full-time, competitive work”

because he regularly has flare-ups even when he is consistent

with his medication. (R. at 202.) 

VI. ALJ’s Decision

The ALJ issued her decision on September 2, 2011, finding

that Mr. Bardlett was not disabled under sections 216(i) and 223

of the Social Security Act from April 1, 2007 through the date of

her decision. (R. at 10-18.) The ALJ applied the five-step

sequential analysis as required by the Act, under 20 C.F.R.

404.1520(a). 

At step one, the ALJ determined that Mr. Bardlett had not

engaged in substantial gainful activity since April 1, 2007 (the

alleged onset date). (R. at 12.) 

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At step two, the ALJ determined that Mr. Bardlett had two

severe impairments, angioedema and obesity, and two non-severe

impairments, diabetes mellitus and high blood pressure. (R. at

12.) 

At step three, the ALJ determined that Mr. Bardlett did not

have an impairment or combination of impairments that met or

medically equaled one of the listed impairments from 20 C.F.R.

Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525

and 404.1526). (R. at 13.) She noted that “[h]is symptoms

arising from angioedema have not affected him neurologically...He

has not demonstrated that he meets any listing for a physical

impairment even considering his obesity.” (R. at 13.) 

At step four, the ALJ concluded that, though Mr. Bardlett

was not capable of performing his past work as a traffic

controller based on the testimony of the VE, he had the RFC “to

perform light work as defined in 20 CFR §§ 404.1567(b) and

416.967(b). He can sit for 6 hours in an 8-hour workday. He is

limited to no climbing of ladders, ropes, or scaffold, and

occasional climbing ramps/stairs, stooping, kneeling, crouching,

or crawling, and frequent balancing.” (R. at 13.) In making her

decision, the ALJ noted that she considered all of his symptoms

and the extent to which the symptoms could reasonably be accepted

as consistent with the objective medical evidence and other

evidence, as required under 20 C.F.R. 404.1529 and SSR’s 96-4p

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and 96-7p. (R. at 13.) Additionally, the ALJ considered opinion

evidence in accordance with 20 C.F.R. 404.1527 and SSR’s 96-2p,

96-5p, 96-6p, and 96-3p. (R. at 13.) Next, the ALJ summarized

Mr. Bardlett’s testimony and medical record and stated:

Thus, considering the claimant’s allegations in

light of his medical treatment history, the

medical signs and findings, and the State agency

medical doctors’ opinions, I conclude that the

claimant’s testimony is not totally credible and

that the claimant has the residual functional

capacity [to perform light work]. 

(R. at 16.)

At step five, the ALJ determined that, based on Mr.

Bardlett’s age, education, work experience, RFC, and the VE’s

testimony, “there are jobs that exist in significant numbers in

the national economy that claimant can perform...” (R. at 17.) 

The ALJ determined that Mr. Bardlett would be able to work as a

ticket seller (3,200 Illinois/78,600 nationally), labeler (9,200

Illinoi/73,600 nationally) or routing clerk (17,700

Illinois/447,600 nationally). (R. at 18.) 

Mr. Bardlett requested review by the Appeals Council, but

was denied on February 16, 2012. Thus, the ALJ’s decision became

the final decision of the Commissioner. Mr. Bardlett filed a

complaint with this court on March 21, 2012, seeking a review of

the decision. The parties consented to exercise of jurisdiction

by a magistrate judge on July 25, 2012. Thereafter, crossmotions for summary judgment were filed. This Court has

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jurisdiction pursuant to 42 U.S.C. § 405(g). Mr. Bardlett asks

the Court to reverse the Commissioner’s decision denying him

benefits, or to remand the matter for further proceedings; the

Commissioner seeks summary judgment affirming the agency’s

decision. 

Standard of Disability Adjudication

An individual claiming a need for DBI or SSI must prove that

he has a disability under the terms of the SSA. In determining

whether an individual is eligible for benefits, the social

security regulations require a sequential five-step analysis. 

First, the ALJ must determine if the claimant is currently

employed; second, a determination must be made as to whether the

claimant has a severe impairment; third, the ALJ must determine

if the impairment meets or equals one of the impairments listed

by the Commissioner in 20 C.F.R. Part 404, Subpart P, Appendix 1;

fourth, the ALJ must determine the claimant’s RFC, and must

evaluate whether the claimant can perform his/her past relevant

work, and fifth; the ALJ must decide whether the claimant is

capable of performing work in the national economy. Knight v.

Chater, 55 F.3d 309, 313 (7th Cir.1995). At steps one through

four, the claimant bears the burden of proof; at step five, the

burden shifts to the Commissioner. Id.

Standard of Review

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A district court reviewing an ALJ’s decision must affirm if

the decision is supported by substantial evidence and is free

from legal error. 42 U.S.C. § 405 (g); Steele v. Barnhart, 920

F.3d 936, 940 (7th Cir.2002). Substantial evidence is “more than

a mere scintilla”; rather, it is “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct.

1420, 28 L.Ed.2d 842 (1971). In reviewing an ALJ’s decision for

substantial evidence, the Court may not “displace the ALJ’s

judgment by reconsidering acts or evidence or making credibility

determinations.” Skinner v. Astrue, 478 F.3d 836, 841 (7th

Cir.2007) (citing Jens v. Barnhart, 347 F.3d 209, 212 (7th

Cir.2003)). Where conflicting evidence allows reasonable minds

to differ, the responsibility for determining whether a claimant

is disabled falls upon the Commissioner, not the courts. Herr v.

Sullivan, 912 F.2d 178, 181 (7th Cir.1990).

An ALJ must articulate her analysis by building an accurate

and logical bridge from the evidence to her conclusions, so that

the Court may afford the claimant meaningful review of the SSA’s

ultimate findings. Steele, 290 F.3d at 941. It is not enough

that the record contains evidence to support the ALJ’s decision;

if the ALJ does not rationally articulate the grounds for that

decision, or if the decision is insufficiently articulated, so as

to prevent meaningful review, the Court must remand. Id. 

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Discussion

Mr. Bardlett argues that the ALJ’s decision should be

reversed or remanded because she failed to discuss Mr. Bardlett’s

ability to engage in full-time work for the RFC determination;

failed to address a conflict between her RFC determination and

those of the SSA medical consultants; and failed to make a proper

credibility determination. 

I. The ALJ’s Failure to Address a Conflict Between her RFC

Determination and Those of the SSA Medical Consultants

First, Mr. Bardlett argues that the inconsistency in the ALJ

finding that he could balance frequently, as opposed to Dr.

Arjmand and Dr. Panepinto’s finding that Mr. Bardlett could

balance only occasionally, merits remand. Pl’s brief at 13. Mr.

Bardlett also notes that the ALJ’s finding is inconsistent with

her assertion that she gave significant weight to these doctors’

opinions. Id. at 14. 

This is harmless error. “No principle of administrative law

or common sense requires [the court] to remand a case in quest of

a perfect opinion unless there is reason to believe that the

remand might lead to a different result.” Fisher v. Bowen, 869

F.2d 1055, 1057 (7th Cir.1989); See also NLRB v. Wyman-Gordon,

394 U.S. 759, 766 n.6 (noting that a court need not remand upon

judicial review of an agency action where doing so would be a

“useless formality”). The VE found that the hypothetical

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individual with Mr. Bardlett’s vocational profile and who could

balance frequently, along with the other characteristics, could

work as a ticket seller, labeler, or routing clerk. (R. at 43-

44). As the Commissioner notes, neither of those jobs require

any balancing. See U.S. Dep’t of Labor, Employment & Training

Admin., Dictionary of Occupational Titles, 211.467-030, 920.687-

126, 222.587-038 (4th ed. 1991); Def’s brief at 9. Remand,

therefore, would be a “useless formality.” Wyman-Gordon, 394

U.S. at 766, n.6. 

II. The ALJ’s Credibility Assessment

Next, Mr. Bardlett challenges the ALJ’s finding that his

complaints of debilitating swelling in his extremities were not

fully credible, arguing that the ALJ erroneously identified

inconsistencies between his complaints of minor flare-ups (i.e.

swelling in the extremities) and the record. Pl’s brief at 8. 

Because an ALJ is in the best position to assess the

credibility of a claimant, a court will afford the ALJ’s

credibility assessment special deference, and will only find

against the credibility assessment where it is “patently wrong.” 

Powers v. Apfel, 207 F.3d 431, 435 (7th Cir.2000). An ALJ’s

credibility assessment is “patently wrong” where it “lacks any

explanation or support.” Elder v. Astrue, 529 F.3d 408, 413 (7th

Cir.2008). In making this assessment, a court will not “nitpick

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the ALJ’s opinion for inconsistencies” but rather “give it a

commonsensical reading.” Jones v. Astrue, 623 F.3d 1155, 1160

(7th Cir.2010). 

As the ALJ noted, when she made her RFC determination, she

considered, in accordance with 20 CFR §§ 404.1527 and 404.1529,

1) “whether there is an underlying medically determinable

physical or mental impairment(s)...that could reasonably be

expected to produce the claimant’s pain or other symptoms” and,

if so, 2) “the intensity, persistence, and limiting effects of

the claimant’s symptoms to determine the extent to which they

limit the claimant’s functioning.” (R. at 13-14.) For the

latter, the ALJ must make a finding on the credibility of the

claimant’s statements about the intensity, persistence, or

functionally limiting effects of pain or other symptoms where

those statements are not supported by objective medical evidence

in the record. SSR 96-7p; (R. at 14.) 

Mr. Bardlett argues that the ALJ’s determination that the

objective medical evidence in the record did not support his

complaints of difficulty lifting, standing, kneeling, climbing,

stairs, walking, seeing, or using his hands misses the fact that

Mr. Bardlett only went to West Suburban for exacerbations in his

throat, tongue, and/or face. Pl’s Br. at 9. It makes sense, Mr.

Bardlett argues, that the record would almost exclusively

document extreme flare-ups while lacking documentation for mild

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flare-ups. Id. Mr. Bardlett testified that swelling in his

hands and feet caused him to miss 2-3 days of work per month as a

traffic controller, even when he was on his medication, and made

his work extremely difficult when he was on the job. (R. at 31,

33, 36.) He testified that, for minor flare-ups, he would not go

to the hospital, but instead rest at home and take his

prescription of tranexamic acid, relieving him of swelling within

12-72 hours. (R. at 31-32, 41.) 

An ALJ “may not discredit a claimant’s testimony about her

pain and limitations solely because there is no objective medical

evidence supporting it.” Villano v. Astrue, 556 F.3d 558, 562

(7th Cir.2009) (citing SSR 97-7p; 20 C.F.R. § 404.1529(c)(2));

Johnson v. Barnhart, 449 F.3d 804, 806 (7th Cir.2006); Clifford

v. Apfel, 227 F.3d 863, 871-72 (7th Cir.2000). However, that

appears to be what has occurred. The ALJ noted, for example, that

“the claimant reported that he had pain and discomfort due to

bilateral hand and foot swelling” but the “frequency of his

alleged symptoms is not supported by the medical record.” (R. at

15.) The ALJ first acknowledges the need to look beyond the

record and to the claimant’s statements where the record lacks

objective evidence, as is the case here, yet still characterizes

a lack of objective evidence on this subject as an

“inconsistency.” (R. at 14-15.) 

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The record does document a few instances in which Mr.

Bardlett complained of swelling in his extremities to the doctors

at West Suburban, thus accounting for the ALJ’s characterization

of such complaints as “infrequent.” (R. at 15, 240, 272, 287,

753, 790.) But again, the occurrence of these symptoms was only

incidental to the purpose for all of Mr. Bardlett’s angioedemarelated visits: for extreme, life-threatening flare-ups. Support

for the frequency of minor flare-ups as claimed by Mr. Bardlett

will not be found in the medical record because he self-treated

them. 

That is not to say that the ALJ completely neglected to look

at subjective evidence to spot inconsistencies, but the attempt

does not provide for a meaningful review. In regards to daily

living, the ALJ noted that “claimant’s description of his

activities of daily living are inconsistent with his claim of

total disability at all exertional levels. He reported that he

prepared meals, cleaned, did laundry, washed dishes, ironed,

shopped, and read (Exhibit 53).” (R. at 16).

The Court finds no inconsistency herein. Mr. Bardlett never

testified to his condition completely precluding him from

performing daily activities. On the contrary, he testified that

the unpredictable nature of his swelling outbreaks, including in

his extremities, means he can perfectly perform daily activities

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on some days, and is entirely incapacitated on others. (R. at

161-162); Pl’s brief. at 7. 

While it is true that a claimant’s daily activities “are

relevant and must be considered under the Social Security

regulations” in assessing a claimant’s credibility, Masters v.

Astrue, 818 F. Supp. 2d 1054, 1069 (N.D.Ill.2011), an ALJ “must

minimally articulate his reasons for crediting or rejecting

evidence of disability.” Clifford, 227 F.3d at 870 (finding that

the ALJ did not provide any explanation for his belief that the

claimant’s daily activities of walking, shopping, and doing

household chores were inconsistent with his treating physician’s

opinion that he was severely limited in his ability to perform

work requiring any standing or walking, and that the ALJ’s

failure to do so constitutes error.) (quoting Scivally v.

Sullivan, 966 F.2d 1070, 1076 (7th Cir.1992). The ALJ also

failed to do so by making no mention of the episodic nature of

Mr. Bardlett’s condition when discussing his daily activities.

Regarding medical improvement, the ALJ notes that the:

claimant testified that his condition has remained

stable or improved a little bit with the

medication. He stated that medication diminishes

left knee pain. As to the swelling, he testified

that he takes medications for bilateral hand and

foot swelling until his symptoms subside, which

according to his testimony, take a couple of hours

for the swelling to begin to cease and up to 72

hours to completely cease.

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The medical record establishes that his condition

improved. Hospital treatment for respiratory

symptoms decreased over time. 

(R. at 16.) 

Again, the ALJ does not identify how Mr. Bardlett’s

testimony on this matter creates an inconsistency. The record

undoubtedly shows that a consistent regime of tranexamic acid

ultimately halted hospitalizations for his extreme flare-ups, and

Mr. Bardlett does not deny this. (R. at 31, 40, 959.) But the

ALJ fails to explain how this improvement, specifically towards

his extreme flare-ups, is inconsistent with his complaints of

unrelenting minor flare-ups. Mr. Bardlett testified that taking

his home prescription of tranexamic acid always relieves swelling

in his hands and feet within 12 to 72 hours, but he never claimed

that the swelling in these areas no longer plagues him. (R. at

40-41.) 

Mr. Bardlett also challenges the ALJ’s identification of an

inconsistency pertaining to his extreme flare-ups. The ALJ noted

that Mr. Bardlett’s initial “non-compliance” casts credibility

doubts on his complaints of “breakthrough attacks of swelling

with medication,” because most of his extreme flare-ups resulted

from missed medications. (R. at 15.) The Court is able to

follow the ALJ’s assessment of credibility in this instance. The

medical record documents only two instances in which Mr. Bardlett

was hospitalized for an extreme flare-up despite being on his

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medication. (R. at 336, 550.) The rest of the record shows

hospitalizations due to missed medication, giving the ALJ

substantial reason to doubt Mr. Bardlett’s assertion that he

still suffered from extreme flare-ups despite taking his

medication. (R. at 240, 248, 279, 284, 299, 346, 366, 595, 606,

643, 647, 833, 857.) 

This does not, however, alter the Court’s finding that the

ALJ did not properly account for Mr. Bardlett’s minor flare-ups

in the credibility assessment. Again, in evaluating credibility,

the ALJ considered non-compliance in connection only with Mr.

Bardlett’s extreme flare-ups, while omitting any mention of his

minor flare-ups from this particular discussion. The ALJ was

free to diminish the credibility of Mr. Bardlett’s statements

that he still experiences minor flare-ups while on his medication

due to this inconsistency. The ALJ, however, did not articulate

such a connection. 

The ALJ identified inconsistencies regarding Mr. Bardlett’s

work history. First, the ALJ noted that Mr. Bardlett testified

that he stopped working as a traffic controller in October 2009

after he was laid off. However, he indicated in his disability

report that he stopped working because of a dispute over his

medical and personal leave. (R. at 29, 149.) The ALJ also noted

that, after Mr. Bardlett stopped working, he received

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unemployment benefits and continued to look for work. (R. at 28-

29.) 

The SSA has affirmed that the receipt of unemployment

benefits is one factor that an ALJ may take into consideration in

determining whether a claimant is disabled. Pl’s brief Exhibit

1; 20 CFR § 404.1512(b). The Court is unable to follow the ALJ’s

determination that “[Mr. Bardlett] reported that he previously

worked with his impairments and that he was able to be on his

feet working part-time and even fulltime with overtime” as

showing any inconsistency, at least with regard to his complaints

of minor flare-ups. (R. at 16.) After all, Mr. Bardlett’s

testimony provides that, while he was able to make it to work on

most days within a given month, he had to take frequent brakes

while he was there due to the pain and discomfort. (R. at 36-37.)

Despite the ALJ’s identification of two minor

inconsistencies pertaining to Mr. Bardlett’s work history, the

ALJ’s classification of certain statements made by Mr. Bardlett

concerning his minor flare-ups as “inconsistent,” as well as a

lack of further review of the evidence, prevents a meaningful

review by the Court of the ultimate findings of the SSA. Remand

is therefore merited on this point. 

III. The ALJ’s RFC Determination

Finally, Mr. Bardlett argues that the RFC determination,

utilized for steps 4 and 5 of the Sequential Evaluation process,

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was incorrect, as the ALJ failed to consider Mr. Bardlett’s

ability to perform “sustained” work activity. Mr. Bardlett

points to SSR 96-8p, finding that an ALJ “must discuss the

individual’s ability to perform sustained work activities in an

ordinary work setting on a regular and continuing basis (i.e., 8

hours a day, for 5 days a week, or an equivalent work

schedule)...” 61 FR 34474, 34478. The ALJ found that Mr.

Bardlett had the RFC to perform light work, but Mr. Bardlett

notes that the ALJ failed to mention “sustained work activities”

anywhere in her decision. Pl.’s brief at 7; (R. at 13-16.)

As previously mentioned, the ALJ determined that the extreme

flare-ups are no longer an issue as long as Mr. Bardlett stays

consistent on his medication and that the bulk of his

hospitalizations resulted from missed medication. (R. at 16.) 

Mr. Bardlett himself testified that, since he began taking the

U.S.-available drug in 2011, he has had no problem obtaining the

drug, has not missed a dose, and consequentially has not

experienced an exacerbation severe enough to send him to the

hospital. (R. at 39-40.) Indeed, the record shows that Mr.

Bardlett’s last documented visit for an extreme flare-up came on

11/21/10, the result of another missed dose when Mr. Bardlett was

still ordering the drug from out of the country. (R. at 833.) 

That said, the ALJ’s failure to consider Mr. Bardlett’s

ability to conduct “sustained work activities,” in regards to

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those extreme flare-ups is harmless error. See Fisher at 1057. 

Again, Mr. Bardlett’s now consistent treatment on tranexamic acid

has eliminated extreme flare-ups, as far as the record shows. To

factor in the limiting effects of the extreme flare-ups, now a

non-issue, on Mr. Bardlett’s ability to work on a “sustained”

basis would produce the same finding by the ALJ. 

Mr. Bardlett may be correct, however, that the ALJ’s failure

to consider his ability to perform “sustained work activities” in

connection with his minor flare-ups is material error. As Mr.

Bardlett notes, the alleged unpredictable nature of his minor

flare-ups, even when he is on his medication, “would preclude

full-time work because his impairment would require frequent

absences.” Pl’s brief at 7. In addition, the VE testified that

all work would be eliminated if Mr. Bardlett had to miss two or

more days per month. (R. at 48.)

The ALJ’s decision to find Mr. Bardlett disabled effectively

hinged on whether or not she would credit Mr. Bardlett’s

complaints of continued minor flare-ups, as there was a lack of

objective evidence in the record to support those complaints. 

The Court presumes that, because the ALJ did not find those

complaints credible to begin with, she did not find it necessary

to explore “sustained work activities” in connection with his

claimed minor flare-ups, though she may have simply forgotten to

discuss the matter. 

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Whatever the reason, the lack of clarity herein prevents the

Court from making a meaningful review of the ultimate findings of

the SSA, and therefore remand on this point is necessary. The

Court finds that the ALJ erred by identifying inconstancies as

part of the credibility assessment that are not substantiated by

the medical record nor by Mr. Bardlett’s testimony. Because it

is apparent that the ALJ partly misunderstood the nature of Mr.

Bardlett’s medical condition, on remand the ALJ should attempt to

further develop Mr. Bardlett’s testimony concerning his minor

flare-ups, and re-assess whether those statements are consistent

or not with other evidence in the record, in order to determine

if claimant is disabled. The ALJ should also consider whether

claimant’s minor flare-ups, if any, materially affect his ability

to perform “sustained work activities.” 

Conclusion

For the reasons set forth above, the Court grants Mr.

Bardlett’s motion for summary judgment [#16] and denies the

Commissioner’s motion for summary judgment [#22]. The case is

remanded to the Commissioner for further proceedings consistent

with this Memorandum Opinion and Order. 

Date: August 09, 2013

E NT E R E D:

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_________________________________

MAGISTRATE JUDGE ARLANDER KEYS 

UNITED STATES DISTRICT COURT 

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