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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

RONALD DEMARCO ) 

 ) 

 Plaintiff, ) 

 ) No. 12 cv 2059 

 v. ) 

 ) Magistrate Judge Arlander Keys 

MICHAEL J. ASTRUE, ) 

Commissioner of ) 

Social Security ) 

 ) 

 Defendant. ) 

MEMORANDUM OPINION AND ORDER 

Plaintiff Robert DeMarco (plaintiff or “Mr. DeMarco”) has 

filed a motion for summary judgment [19] seeking judicial review 

of the final decision of the Commissioner for Social Security 

(“Commissioner”). The parties consented to the jurisdiction of 

this Court pursuant to 28 U.S.C. § 636(c). For the reasons set 

forth below, Mr. DeMarco’s motion for summary judgment is 

denied. The Social Security Administration’s January 4, 2012, 

decision is affirmed. 

I. PROCEDURAL HISTORY1

Plaintiff, Ronald DeMarco, initially applied for Social 

Security Disability Benefits on July 10, 2000. Record at 106-

08. In his application, he alleged that he became disabled on 

December 5, 1997 due to constant back pain following a 

                                                            

1

  As the Bates numbers on the administrative record in this case are not 

consistent, the record cites in this opinion refer to the PageID # listed on 

the top right of each page of the record.  

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laminectomy, as well as arthritis in his hands. R. 106. The 

Social Security Administration (“SSA”) denied his claim on 

October 5, 2000, finding that he still possessed the ability to 

perform light work. R. 80. Mr. DeMarco entered a protective 

filing to secure his application date with the SSA on July 29, 

2002, he then entered a second application for disability 

benefits on November 27, 2002. R. 114-17. Mr. DeMarco’s 

application was denied initially on February 5, 2003, and upon 

reconsideration on March 13, 2003. R. 84, 91. On March 25, 

2003, Mr. DeMarco filed a written request for a hearing. R. 95. 

Administrative Law Judge (“ALJ”) John L. Mondi held the 

hearing on August 19, 2004. R. 67-69. The ALJ issued his 

opinion denying benefits on October 25, 2004. R. 70-76. On 

November 2, 2004, Mr. DeMarco requested that the Appeals Council 

review the ALJ’s decision. R. 55. The Appeals Council denied 

Mr. DeMarco’s request for review on November 15, 2005. R. 45. 

Mr. Demarco appealed the decision to the District Court. 

The District Court remanded the matter to the SSA. R. 426. 

The Appeals Council remanded the case to an ALJ on April 4, 2008 

for rehearing. R. 405. ALJ Mondi held a hearing on October 7, 

2008. R. 445. On November 4, 2008, ALJ Mondi issued a decision 

denying benefits to Mr. DeMarco. R. 389. Mr. DeMarco appealed 

the decision to the District Court for a second time. The 

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District Court again remanded the case to the SSA on March 17, 

2011. R. 503. 

 The Appeals Council once more remanded the case to an ALJ 

on June 6, 2011. R. 569. ALJ John Kraybill held a hearing on 

September 21, 2011. R. 614. On January 4, 2012, the ALJ issued 

a decision denying benefits to Mr. Demarco. R. 486. On March 

13, 2012, Mr. DeMarco appealed the decision to the District 

Court. R. 2. The parties consented to vest jurisdiction in a 

Magistrate Judge, and it was transferred to this Court on August 

14, 2012. R. 675. The case is currently before the Court on 

Mr. DeMarco’s motion for summary judgment, in which, Mr. DeMarco 

seeks the Court to award him benefits, or in the alternative, 

remand the case for further consideration. R. 755-64. 

II. FACTUAL BACKGROUND 

Mr. DeMarco’s date of birth is August 4, 1952. R. 58. He 

was employed as a diesel mechanic for Global Van Lines in the 

1970’s. R. 367. Mr. DeMarco was also employed as a truck 

driver and automobile mechanic for Pell’s Express between June 

of 1979 and April 1, 1996. R. 342, 366. He initially hurt his 

back while working for Pell’s Express in December 1994. R. 343. 

On December 5, 1997, Mr. DeMarco underwent a decompressive 

lumbar laminectomy and microlumbar discectomy. R. 80. Mr. 

DeMarco testified that he began a small engine repair business 

in 1996, which he ran until 2002. R. 340-41. He also plowed 

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snow in the winter of 2001-2002. R. 339. Mr. DeMarco’s date 

last insured was September 30, 2002. R. 8. 

III. MEDICAL EVIDENCE 

 A. Dr. Boury 

Dr. Boury, Mr. DeMarco’s neurological surgeon, noted that 

Mr. DeMarco first injured his back while attempting to lift the 

rear door of a trailer while working for Pell’s Express in 

December 1994. R. 242. Mr. DeMarco’s physical therapist noted 

back pain on December 28, 1994. R. 199. Dr. Boury noted that, 

on January 4, 1995, Mr. DeMarco had been experiencing radiating 

left buttock and posterior thigh pain which went almost halfway 

down the calf. R. 242. In the MRI report dated February 6, 

1995, a radiologist diagnosed degeneration of the L5-S1 disc 

with moderate bulging at L5-S1. R. 200. On August 28, 1995, 

Dr. Boury noted that Mr. DeMarco was still experiencing sharp 

pain in his right buttock, through the thigh, down to the calf. 

R. 240. Dr. Boury also noted that Mr. DeMarco was experiencing 

toothache-like symptoms in both calves, primarily on the right 

side, and that these symptoms occured more readily when he is 

seated. Id. 

On September 7, 1995, Dr. Boury found that Mr. DeMarco was 

“entitled to have symptoms of back pain” which can get worse 

when he “sits down for any length of time.” R. 239. On 

November 17, 1997, a radiologist found L4-5 disc herniation on 

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the left as well as L5-S1 subligamentous bulging on a lumbar 

MRI. R. 201. During this visit, Dr. Boury noted that Mr. 

DeMarco was experiencing severe back pain, as well as pain 

radiating down his buttock bilaterally. R. 210. Dr. Boury also 

noted that straight leg raising was “markedly limited at right 

over left” and Mr. DeMarco had a “very antalgic gait,” while 

also noting severe back pain which was improved by bed rest. R. 

238. Dr. Boury also had the impression that Mr. DeMarco had 

lumbar radiculopathy during this visit. R. 230. 

On December 2, 1997, before undergoing back surgery, Dr. 

Boury informed Mr. DeMarco about the possibility of disc 

herniation recurrence being “about 15%.” R. 222. Dr. Boury 

also noted that this was a concern considering Mr. DeMarco’s job 

repairing small engines at the time. Id. Dr. Boury performed 

the operation on December 5, 1997. It consisted of a 

decompressive lumbar laminectomy of L4 and L5 bilateral, 

microlumbar discectomy at the level of L4-L5, on the right side, 

exploration of the L5-S1 disk space which found a herniated disc 

at the level of L5-S1 on the left and a microlumbar discectomy 

at the level of L5-S1 on the left. R. 205. 

Mr. DeMarco had his first postoperative follow up visit on 

December 15, 1997. R. 236. Dr. Boury noted that he was doing 

extremely well and was taking one painkiller a day. Id. On 

January 26, 1998, Dr. Boury noted that Mr. DeMarco was 

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progressing, but had some stiffness in the morning “that one 

would expect following the surgery.” R. 235. On June 29, 1998, 

Mr. DeMarco was overall very pleased with the resolution of his 

bilateral buttock pain. R. 234. At the time, Mr. DeMarco was 

complaining of localized back pain, which was remedied by 

Tylenol with codeine. Id. 

On January 21, 1998, Mr. DeMarco was admitted to the 

Central DuPage Hospital emergency room. R. 218. Mr. DeMarco 

was experiencing nausea and tingling to both hands which 

resolved itself prior to arrival. Id. 

B. Disability Determination Services 

On September 1, 2000, Dr. Velis, a physician for the Bureau 

of Disability Determination Services (“DDS”), noted that Mr. 

DeMarco was in moderate distress during his medical examination. 

R. 248. Mr. DeMarco was 5 feet, 8 inches, tall and weighed 218 

pounds at the time of the examination. R. 247. Dr. Velis also 

noted that Mr. DeMarco had a limited range of motion and a 

positive straight leg raise test with marked paravertebral 

muscle tenderness and spasms with occasional radicular symptoms 

radiating to the gluteal region. R. 248. A radiologist with 

the DDS indicated that Mr. DeMarco had “minimal degenerative 

changes with occasional osteophytes at the vertebral endplates,” 

and slight sclerosis in the lower lumbar spine along with 

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laminectomy at L4 and L5 with minimal narrowing at the L4-L5 and 

L5-S1 intervertebral spaces. R. 251. 

C. Functional Capacity Assessments 

A Residual Functional Capacity (“RFC”) Assessment was 

conducted on September 26, 2000. R. 252. The assessor found 

that Mr. DeMarco was capable of occasionally lifting 20 pounds, 

and frequently lifting 10 pounds. R. 253. Mr. DeMarco was also 

found to be incapable of climbing a ladder, rope or scaffold. R. 

254. 

A second RFC Assessment, conducted two and a half years 

later, on March 13, 2003, held different results. R. 269. The 

second assessor found that Mr. DeMarco was capable of 

occasionally lifting 50 pounds and frequently lifting 25 pounds. 

R. 270. The assessor also noted that Mr. DeMarco’s ability to 

sit was limited, he was required to periodically alternate 

between sitting and standing to relieve pain or discomfort 

resultant of his surgery. Id. Mr. DeMarco was limited to 

occasionally stooping, crouching and crawling. R. 271. The 

assessor also noted that Mr. DeMarco was responding to his 

medication. R. 274. 

D. Dr. Blas 

Mr. DeMarco initially sought treatment with Dr. Blas, a 

pain physician, on March 25, 2002. This was the first medical 

treatment that Mr. DeMarco had sought for his back since being 

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treated by Dr. Boury. R. 267-68. Dr. Blas noted that Mr. 

DeMarco’s back pain was only controllable by consuming oral 

medication between March 25, 2002 and January 6, 2003. R. 260-

268. Dr. Blas prescribed 

Mr. DeMarco Percocet from April 4, 2002 to June 26, 2002. R. 

263-67. He found that Mr. DeMarco was experiencing low back 

pain, which was controlled by either M.S. Contin or Oxycontin 

from December 12, 2002 to June 11, 2004. R. 260-68, 271-97, 

303-321. On December 12, 2002, Dr. Blas indicated that Mr. 

DeMarco’s pain was controlled using M.S. Contin. R. 284. 

However, on March 24, 2003, Mr. DeMarco reported to Dr. Blas 

that he was suffering from a great deal of pain. R. 282. 

On August 27, 2003, Dr. Blas drafted a narrative report on 

Mr. DeMarco’s medical condition. R. 278. Dr. Blas indicated 

that Mr. DeMarco’s pain was not being controlled by either Soma 

Compound or Vicodin. Id. He also noted that Mr. DeMarco had 

pain in the lower back and his straight leg raising test showed 

pain, moderate to severe at 30 degrees extension when both lower 

extremities were extended. Id. Dr. Blas diagnosed Mr. DeMarco 

with radiculitis, chronic and irritative L4-L5, L5,S1 bilateral 

secondary to epidural adhesions and Postlaminectomy Syndrome, 

lumbar. R. 278. Dr. Blas stated that he was seeing Mr. DeMarco 

every other month. Id. 

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On December 4, 2003, Dr. Blas noted that Mr. DeMarco was 

able to do chores and was learning to tolerate his pain. R. 

307. Dr. Blas’s appointment notes develop a steady progression 

of increasingly frequent and worsening pain. R. 260-68, 271-97, 

303-321. Dr. Blas was operating off of a diagnosis of 

radiculitis and post-laminectomy syndrome. Id. 

At the time of the 2004 ALJ hearing, Dr. Blas had 

prescribed Mr. DeMarco 20mg Oxycontin twice a day for pain, 

Celebrex every day for arthritis, Valium at night for sleep as a 

muscle relaxant, Soma Compound 2 to 3 times a day for spasms and 

Naproxen 3 times a day as needed for elbow pain. R. 187. 

Evidence entered at the 2011 ALJ hearing included Dr. 

Blas’s prescriptions for 10mg Valium twice per day, Vicodin as 

needed up to twice per day, 20mg Oxycontin as needed if Vicodin 

does not work and Soma three times per day and at bedtime. R. 

607-10. 

E. Dr. Choi 

The record contains notes from Dr. Choi, the physician that 

treated Mr. DeMarco’s right elbow. R. 299. On April 21, 2004, 

Dr. Choi noted that Mr. DeMarco was in no duress during his 

visit. Id. Dr. Choi found that Mr. DeMarco’s range of motion 

in the right hand and the wrist was normal and he had full range 

of motion in his right shoulder. Id. However, “neurovascular 

examination distally demonstrate[d] some mild grip weakness 

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compared to his nondominant left side.” R. 299-300. Dr. Choi 

noted degenerative change with joint space narrowing and 

ostephyte formation on Mr. DeMarco’s elbow. R. 300-01. Dr. 

Choi’s impression was that Mr. DeMarco had osteoarthritis in his 

right elbow as well as median nerve neuropathy. R. 300. 

Additional notes from Dr. Choi were provided for the 2008 

ALJ hearing. R. 439-444. On May 11, 2005, Dr. Choi’s 

impression was that Mr. DeMarco was suffering from 

osteoarthritis in the right elbow as well as ulnar neuropathy. 

R. 441. On September 12, 2007, Dr. Choi’s impression was that 

Mr. DeMarco was suffering from osteoarthritis with limited 

motion in the right elbow with probable ulnar neuritis at the 

elbow. R. 439. 

IV. PREVIOUS HEARINGS

 A. 2004 Hearing With ALJ Mondi, Ruling and Appeal 

 1. Testimony of Ronald DeMarco 

The 2004 hearing occurred before ALJ Mondi. Mr. DeMarco 

appeared, represented by counsel, and a vocational expert was 

also present at the hearing. R. 332. Mr. DeMarco testified 

that he was 52 years old at the time of the hearing. R. 338. 

He was married with one 16 year old child living at home. Id. 

He has a ninth grade education and he took the GED examination, 

but had no record of passing it. R. 339. He received a degree 

in automotive from Greer Technical Institute. R. 366. 

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His work history consisted of being a truck driver and 

automobile mechanic for Pell’s Express from June of 1979 through 

April 1, 1996. R. 342, 366. He was also a diesel mechanic for 

Global Van Lines in the 1970’s. R. 367. Mr. DeMarco was also 

self-employed performing small engine repair from 1996 until 

2001 or 2002; he plowed snow one winter in either 2001 or 2002. 

R. 339-41. He began repairing engines before his back 

operation, however, after the operation, he was unable to 

continue with the work due to pain. Id. 

Mr. DeMarco initially hurt his back while working for 

Pell’s Express in December of 1994. R. 343. Following his 

injury, he was diagnosed with bulging disks and was relegated to 

light duty while working for Pell’s Express until his 

termination on April 1, 1996. R. 343-44. Following his 

termination he was unable to find work due to his back problems. 

R. 345. While he was self-employed repairing engines, he would 

start his work day at 9:00 AM and by noon, he would begin 

feeling pain, which would require him to take his medication. 

R. 359. Mr. DeMarco stated that he would force himself through 

the pain many times to finish repairing the engines. Id. He 

would finish around 6:30PM or 7:00PM. Id. After returning home 

from work, he was unable to stand up after sitting down and 

would be forced to crawl up the stairs. Id. He worked like 

this five to six days a week. Id. 

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Mr. DeMarco was prescribed Vicodin at the time of this 

hearing and it was “just taking the edge off” of the pain. R. 

345. Mr. DeMarco testified that he underwent disc laminectomy 

for three disks. Id. After the surgery, he underwent physical 

therapy and took medication as continuing treatment. Id. He 

still experienced pain in his back at the time of the hearing. 

R. 346. He stated that he experienced pain going down either 

the right or the left leg at the time of the hearing. R. 361. 

He also alleged that he was unable to walk two blocks at the 

time of the hearing. R. 348. He said he may be able to walk a 

block, however, after walking a block, he experiences painful 

back spasms. R. 364. 

Mr. DeMarco did not believe he could walk for two hours out 

of an eight hour day continuously or not. R. 368. He testified 

that his ability to stand at the time of the hearing was 

dependent on the medication he was taking at the time, his 

ability to sit for periods of time is likewise determined by the 

medication he is taking. Id. He did not believe he could sit 

for an eight hour day if he were allowed to stand periodically. 

Id. He also stated that he did not believe he would be able to 

stand for two hours of an eight hour day on a consistent basis. 

Id. 

Mr. DeMarco alleged pain in his left elbow in conjunction 

with his back pain. R. 346. At the hearing, Mr. DeMarco was 

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unable to extend his left arm to make it parallel with a table 

that he had placed it on. Id. He stated that he was right 

handed and had lost a substantial amount of strength in his 

right hand. Id. He alleged that he experiences a shooting pain 

through the elbow in his right arm and drops things with his 

right hand. R. 346-47. He alleged that he is unable to reach 

with his right arm “[b]ecause it doesn’t go up.” R. 360. Mr. 

DeMarco testified that he had also been diagnosed with 

depression. R. 348. 

At the time of the 2004 hearing, Mr. DeMarco was taking 

Oxycontin, Celebrex, Valium, Soma Compound and Naproxen. R. 

349. Mr. DeMarco testified that he was experiencing side 

effects from his medication. R. 350. He stated that he was 

addicted to Oxycontin at the time of the hearing, and that it 

caused him blurred vision, affected his concentration and 

required him to sit down after taking it. Id. While under the 

effects of Oxycontin, he feels as if he is drunk, he is unable 

to drive and would be unable to operate machinery. R. 358. 

Oxycontin’s effect on his concentration is the reason he stopped 

his small engine repair company. Id. He testified that his 

intake of Oxycontin was not exceeding the amount prescribed by 

his physician. R. 355-56. 

Mr. DeMarco testified that his medications make him sleep, 

specifically the Oxycontin, and Valium when taken in conjunction 

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with Oxycontin. R. 362. The day before the hearing, he had 

slept for 18 hours. R. 363. He testified that Dr. Blas had 

also prescribed him Vicodin and Valium in the past. Id. At the 

time of the hearing, he was taking Oxycontin on a daily basis 

and was taking Valium as needed for pain when the Soma Compound 

was not sufficient. R. 362. He was taking Valium 3 to 4 times 

a week or more. Id. He also stated that his medications were 

affecting his memory. R. 363. Sometimes he would have problems 

finishing tasks or even realizing that he was doing a task. Id. 

Mr. DeMarco testified that he has problems taking care of 

himself and performing tasks around the home. R. 352. He 

testified that he has had this problem since his back operation 

on December 5, 1997. Id. He is unable to tie his shoes while 

wearing them. R. 360. He was having problems bending his torso 

at the time of the hearing, and could not bend at the waist. Id. 

He was able to drive a car, cut his grass with a riding mower, 

however, his son had to do the trimming in the yard, because he 

was unable to hold a weed whacker without dropping it. R. 352-

53. Mr. DeMarco testified that for exercise, he was able to do 

stretches in the morning, but was unable to walk distances, 

though he is able to walk around his house. R. 353. 

In regards to pain, Mr. DeMarco testified that at the time 

of the trial he was at an 8.5 on a 0 to 10 scale of pain, where 

10 is the worst pain. R. 354. He said that his pain level 

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never drops below a 7 on this scale. Id. To alleviate pain 

during the day, he lays on his couch at an angle, because 

sitting straight induces pain. R. 360. Sitting causes pain 

inducing spasms, which are less painful when using medication. 

R. 364. Sleep and Valium also help alleviate the pain. R. 360-

61. He naps for 2 to 3 hours a day. R. 363. 

Mr. DeMarco testified that Dr. Boury informed him that he 

had scar tissue built up in his spine, which the doctor wished 

to remove with a RACZ procedure. R. 357. Mr. DeMarco did not 

wish to undergo this procedure, because he did not want to be 

“opened up again,” and subjected to a “full blown operation,” or 

the recovery. R. 356-57. He also testified that one of his 

doctors had informed him that he had arthritis throughout his 

back. R. 364. 

 2. Testimony of Vocational Expert 

Mr. James Breen, a vocational expert who had reviewed Mr. 

DeMarco’s file and heard his testimony before the ALJ, also 

provided testimony at the 2004 hearing. R. 365-88. Mr. Breen 

determined that a hypothetical person with limitations similar 

to Mr. DeMarco’s would be able to return to all of his past 

relevant work based on the RFC Assessment taken on March 3, 

2003. R. 372. He stated that, if a hypothetical person with 

these limitations was required to take more than 10 minutes per 

hour to stretch, or if they had a 10 pound lifting limitation, 

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they would be unable to perform any of Mr. DeMarco’s previous 

truck driving jobs. R. 379, 384. He stated that, if the person 

was unable to fully extend their right arm, so as to shift 

gears, they would also be unable to perform any of Mr. DeMarco’s 

previous truck driving jobs. R. 384. 

Mr. Breen testified that, if the person were required to 

stand for more than 10 minutes an hour, or were limited to 

lifting no more than 10 pounds, they would be unable to perform 

small engine repair. R. 381, 84. If the person were unable to 

maintain concentration throughout an 8 hour day, they would be 

unable to perform any job. R. 381. Based on the RFC assessment 

taken on September 26, 2000, a hypothetical person with 

limitations similar to those outlined in the assessment would 

not be able to return to any of Mr. DeMarco’s past relevant 

work. R. 374. 

Mr. Breen stated that there was a wide range of unskilled 

occupations which a person with limitations based on the 2000 

RFC Assessment could perform in the light work group category. 

R. 374. The jobs available to a person with those limitations 

would not change if that person had a right arm impairment which 

limited extending the arm and restricted lifting with the arm to 

no more than 10 pounds. R. 375. He stated that if a person had 

all of the limitations which Mr. DeMarco alleged to have in his 

testimony, they would be unemployable. R. 376. Mr. Breen 

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testified that, if the only limitation alleged by Mr. DeMarco to 

be placed upon the hypothetical person was his inability to 

bend, that it would preclude the hypothetical person from truck 

driving, small engine repair and one of the three hypothetical 

jobs indicated by Mr. Breen in his analysis. R. 386-87. If the 

person had limitations on periodic standing and sitting or 

concentration it would interfere with many of the positions 

which he had indicated were available for a hypothetical person 

with Mr. DeMarco’s limitations. R. 381-83. 

 3. 2004 Decision and Appeal 

On October 25, 2004, ALJ Mondi issued an unfavorable 

decision. R. 67-76. ALJ Mondi found that Mr. DeMarco did not 

have an impairment that met or medically equaled a listed 

impairment. R. 75. ALJ Mondi also found that Mr. DeMarco’s 

allegations regarding his symptoms were not credible in 

establishing disabling limitations, especially his work 

activities. R. 75. In addition, ALJ Mondi found that Mr. 

DeMarco was unable to perform any past relevant work. Id. The 

Appeals Council denied Mr. DeMarco’s Request for Review. R. 5. 

Mr. DeMarco then appealed his case to the District Court. 

R. 419-26. On August 16, 2007, the District Court reversed the 

ALJ’s decision and remanded the matter to the Social Security 

Administration for further proceedings. R. 426. The Court 

found that the ALJ had not indicated the basis for rejecting Mr. 

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DeMarco’s explanations, and therefore, the path of his reasoning 

for the rejection could not be traced. Id. The Court found 

that, though there may be enough evidence in the record to 

support the ALJ’s rejection of Mr. DeMarco’s alleged 

limitations, the ALJ was required to explain whether Mr. 

DeMarco’s allegations could or could not be accepted as 

consistent with evidence. Id. The Court held that these errors 

made it necessary for the ALJ to reassess Mr. DeMarco’s 

credibility and RFC. Id.

 B. 2008 Hearing with ALJ Mondi, Ruling and Appeal 

On remand, a supplemental hearing was held before ALJ Mondi 

on October 7, 2008. R. 392. Mr. DeMarco was represented by his 

attorney, Barry A. Schultz, at the hearing. R. 447. Also 

present for the hearing was Thomas Gusloff, a vocational expert. 

Id. Mr. Schultz gave a brief opening statement at the hearing. 

R. 449. He claimed that Mr. DeMarco did not undergo the RACZ 

procedure, because he was not only afraid of being subjected to 

another operation, but he would also have to pay for the 

procedure out of pocket. Id. He also brought attention to Dr. 

Blas’s diagnoses of radiculitis, as well as post-laminectomy 

syndrome. R. 450. Mr. Schultz pointed out that Mr. DeMarco’s 

positive straight leg raising tests resulted in pain in the 

extremities. Id. Mr. Schultz made the argument that, because 

Mr. DeMarco had turned 50 years old by his date last insured, 

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Mr. DeMarco should be found disabled under the rule if he were 

limited to sedentary work. R. 451. 

 1. Testimony of Ronald DeMarco 

At the 2008 hearing, Mr. DeMarco testified that he was now 

divorced. R. 451. He clarified that he had attempted to plow 

snow in 2003, but was unable to do it because it aggravated his 

back. R. 452. He said that he was only able to plow snow two or 

three times. R. 453. He had to keep pulling over and getting 

out of the truck, because the pain kept getting worse, and he 

was unable to take any medication to control it because he was 

driving. Id. 

Mr. DeMarco testified that the reason he had closed his 

small-engine repair company, was because he was unable to stand 

and work on things. R. 453. He testified that, as the pain 

would grow worse, he would take more medication, and it made him 

fall behind in his repairs. Id. Mr. DeMarco testified that his 

business ran three years at a loss without generating any 

profits. R. 454. 

Dr. Blas told Mr. Demarco that recovery from the RACZ 

procedure would take about six months. R. 458. Dr. Blas told 

him that the operation does not work on some people and that the 

risks were basically the same as his first back surgery. Id. 

Mr. DeMarco did not have health insurance at the time that Dr. 

Blas recommended the procedure. Id. 

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Mr. DeMarco said the medications which were most successful 

in alleviating his pain were the ones he was prescribed at the 

time of the hearing, Oxycontin, Valium and Soma Compound. R. 

459. Mr. DeMarco stated that, when he was on M.S. Contin, he 

would have to take it with the Valium and Soma Compound in 

combination to have an effect on his pain, this occurred up to 

four times per week. R. 459-60. He testified that when taking 

that combination of drugs, it would make him a “zombie” by 

robbing him of his thought process and concentration and making 

him want to sleep. R. 459. Mr. DeMarco said that, when taking 

Oxycontin, he had similar side effects, causing him to want to 

lie down and making him feel like a “zombie.” R. 461. 

Mr. DeMarco testified that his pain in 2001-2002 was easily 

aggravated by sitting, it would cause his back to tighten up 

before getting progressively worse and spasming. R. 462. He 

said sitting in his jacuzzi tub would help alleviate the pain. 

R. 463. He said exercise, work hardening and physical therapy 

made his pain worse and did not help alleviate his pain. Id. 

He said that in 2001-2002, he was unable to stand for longer 

than 10 minutes without experiencing shooting pains going down 

his legs. Id. On the day of the hearing, he had not taken his 

pain medication, because he is unable to drive under the effects 

of the medication. R. 464. 

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Mr. DeMarco lived alone during the 2001-2002 timeframe and 

doing chores aggravated his back pain. R. 464-66. Activities 

which aggravated his pain included tying his shoes, doing dishes 

and doing laundry. R. 465. An hour or two after doing these 

activities, Mr. DeMarco would experience pain down his legs, 

back spasms and general pain. Id. He was also having trouble 

bending, and if he dropped something, he would have to either 

sit down or get down on his knees to pick it up. Id. 

 2. Testimony of Vocational Expert 

Mr. Gusloff, a vocational expert, testified at the 2008 

hearing that Mr. DeMarco’s self-employment in small engine 

repair or his position plowing snow would not count as past 

relevant work, because there was no evidence in the record to 

demonstrate that he had participated in those roles at a 

substantially gainful activity level. R. 471. Mr. Gusloff said 

that a hypothetical person under the limitations which were 

assessed against Mr. DeMarco in his first ALJ hearing would be 

able to find employment, including that as a delivery truck 

driver and other jobs related to truck driving. R. 472. 

A person with the same limitations, but who was limited to 

light work would not be able to perform any of Mr. DeMarco’s 

previous jobs, as they were all at the medium level, however 

there were other positions where Mr. DeMarco’s experience as a 

mechanic would allow him to be employable. R. 473. Mr. 

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DeMarco’s attorney objected to this testimony, because there had 

been no transferable skills found in the past and transferable 

skills were not remanded for reconsideration. R. 473. 

Mr. Gusloff said a person with a right elbow impairment 

that precluded sustained repetitive manipulation with the right 

arm, who was limited to less than frequent use of the arm, would 

be limited to light or sedentary work. R. 474-75. Mr. Gusloff 

testified that a person with all of the limitations alleged by 

Mr. DeMarco, especially in regards to the effects of medication, 

would not be employable. R. 475. 

Mr. Gusloff testified that a hypothetical person who was 

required to miss more than one unscheduled hour per week of 

work, would eventually not be employed. R. 476-77. He also 

testified that, if he would have to take off two hours during 

the workday, because he had to lie down or could not 

concentrate, he would not be able to maintain employment. R. 

477. If a person were required to avoid machinery, jobs related 

to small engine repair skills would not be possible. R. 477-78. 

Some of the positions available to the hypothetical person may 

not accommodate the alternating sitting and standing limitation 

which was present in Mr. DeMarco’s record. R. 480. He also 

testified that if the person had a limit of standing for at most 

10 minutes, they would be placed in a sedentary category. R. 

482. 

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 3. 2008 Decision and Appeal 

ALJ Mondi issued an unfavorable decision denying benefits 

on November 4, 2008. R. 389. ALJ Mondi found that Mr. DeMarco 

had not engaged in substantial gainful activity after the 

alleged onset date of his disability. R. 394. Mr. DeMarco did 

not have an impairment or combination of impairments that met, 

or medically equaled, a listed impairment. Id. Mr. DeMarco had 

the functional capacity to perform medium work “not requiring 

more than frequent balancing, kneeling or climbing; more than 

occasional stooping, crouching or crawling; and subject to a 

need to be able to periodically alternate between sitting and 

standing to relieve low back pain.” R. 395. ALJ Mondi found 

that Mr. DeMarco’s statements regarding the intensity, 

persistence and limiting effects of his symptoms were not 

credible when compared to the objective evidence. R. 396 

ALJ Mondi found that Mr. DeMarco’s ability to conduct small 

engine repair with his hands for several years through his date 

last insured, indicated that his current debilitation was not 

significantly limiting until after his date last insured. R. 

397. He found Mr. DeMarco’s testimony regarding the side 

effects of his medication to not be credible. Id. He 

determined that Mr. DeMarco’s alleged side effects were not 

significant enough to preclude him from repairing small engines 

for several years, driving a car or cutting his grass with a 

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riding mower, indicated that they were not so severe as to 

preclude all work. Id. ALJ Mondi adopted the RFC assessment 

dated March 13, 2003 which indicated that Mr. DeMarco could 

perform a restricted range of medium work through his date last 

insured, because it was supported by the record as a whole, as 

well as Mr. DeMarco’s work activities. Id. 

Mr. DeMarco sought judicial review in the District Court. 

R. 504-559. On March 17, 2011, the District Court reversed the 

decision of the ALJ and remanded the matter to the Social 

Security Administration. R. 558. The Court remanded due to a 

mischaracterization of Mr. DeMarco’s testimony regarding why he 

closed his small engine repair business, as well as a statement 

by the vocational expert. R. 550, 553. 

 C. 2011 Hearing With ALJ Kraybill, Ruling

ALJ John Kraybill held a third hearing on September 21, 

2011. R. 569, 614-68. Mr. DeMarco was represented by his 

attorney, Barry Schultz; also present were Dr. James McKenna, a 

medical expert; Edward Pagells, a vocational expert; and Sheryl 

Bigbee, a hearing monitor. R. 616. 

Admitted into evidence at this hearing were statements of 

FICA income demonstrating that in 1997 and 1998, Mr. DeMarco 

earned $0.00, and in 1999, $2,958.00. R. 594. The statements 

also indicate that Mr. DeMarco had earned $0.00 in yearly 

earnings after 1999, except for a $2,774 profit in 2001. R. 

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118, 597. Also introduced into evidence was a Blue Cross Blue 

Shield policy statement which indicated that, between June 2004 

and June 2006, Blue Cross did not provide coverage for the RACZ 

procedure which was recommended for Mr. DeMarco. R. 611-613. 

The evidence also included up to date prescriptions of Mr. 

DeMarco. R. 607-10. 

 1. Testimony of Ronald DeMarco 

Mr. DeMarco testified that at the time of the 2011 hearing, 

he was living with his ex-wife. R. 620. He and his wife were 

divorced, though they continued living in the same house. Id. 

When asked about his “phobia with hospitals[,]” Mr. DeMarco 

stated that he didn’t “like hospitals any more than anybody else 

does” and that he “never liked or enjoyed being operated on.” 

R. 622-23. 

Mr. DeMarco testified that the main reasons that he was not 

able to return to work between 1997 and 2002 was because his 

range of motion “went right out the window” after the operation 

and his back “just steadily got worse[.]” R. 623. The 

operation affected his ability to stand, sit and lift things. 

Id. He said his back is “always in spasms,” but that he gets 

some relief during the day when he takes his medication. R. 

623-24. In regards to his medication, Percocet “didn’t do 

anything” for him, and Oxycontin worked best for treating the 

pain, but it caused him to sleep. R. 624. 

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 Mr. DeMarco said the reason he did not want to undergo the 

RACZ procedure was because he could not afford it, as he did not 

have insurance. R. 625. Mr. DeMarco also indicated that, after 

his first back operation, he could not appropriately maintain 

his personal hygiene for a sixth month period due to the pain 

and other effects of the operation. R. 626. 

 The pain he experiences after standing or sitting too long 

begins in his middle to upper back, travels down and through his 

buttocks to either or both legs and also causes his back to 

“tighten up into a knot[.]” R. 626. He described the pain as 

if “someone took a hot poker and stuck it through my [cheek] all 

the [way] down to my toes and it’s just like a burning, aching 

feeling, hard to describe, sharp pain.” R. 626-27. After his 

surgery, he did experience relief at first. R. 627. In July of 

2000, he could sit, stand or walk for 15 minutes at a time, 

prior to this, he would experience pain that would cause him to 

lay down or reposition. Id. He would regularly lay on the 

floor to alleviate his pain. Id. While working for his engine 

repair business, he would only be able to work for 15 minutes at 

a time before he would have to sit or lay down, and he was only 

able to work for a half hour to an hour and a half every day. 

R. 629. 

 Mr. DeMarco stated that he was unable to bend at the waist 

at the time of the hearing and that his range of motion for 

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bending had been affected by the surgery. R. 631. He said his 

back pain affected his ability to sleep at night and caused him 

to wake up stiff and mentally “cloudy” from the medication, the 

cloudy feeling lasting for roughly an hour after waking up. R. 

632. He stated that he had trouble with climbing stairs, he 

needs to use a handrail to climb stairs and can only climb them 

slowly. R. 633. 

Mr. DeMarco also complained of problems with his right arm 

in January 2003. R. 629. He stated that the problem began 

years before 2003, but it had grown progressively worse. R. 629-

30. 

 2. Testimony of Medical Expert 

 Dr. James McKenna, testified at the hearing. R. 636. Dr. 

McKenna was board certified in internal medicine and pulmonary 

disease and licensed to practice in Illinois at the time of the 

hearing. Id. He had never personally examined Mr. DeMarco, and 

his opinion was based upon a review of Mr. DeMarco’s file. R. 

637. Dr. McKenna said Mr. DeMarco’s medical record indicated 

his back problems began in 1995. R. 639. 

Dr. McKenna stated that Dr. Boury’s notes from December 15, 

1997 indicate that Mr. DeMarco was “basically doing amazingly 

well and recovering as one would expect.” R. 643. He took note 

of appointments on January 26, 1998 and June 29, 1998, which 

demonstrate Mr. DeMarco’s progress and his return to work in his 

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garage with occasional complaints of lower back pain which 

responded to Tylenol with codeine. R. 643-44. 

Dr. McKenna also took note of the four year gap in 

treatment notes from 1998 to 2002, when Mr. DeMarco began to see 

Dr. Blas in 2002. Id. He testified that he cannot explain how 

Mr. DeMarco went from a successful surgery outcome to his thenpresent situation based on the record he was presented with. R. 

645. He did not have “the evidence to show why he deviated from 

the successful post op course[,]” which he said was “really the 

real crux of the matter.” Id. 

 Dr. McKenna stated that Mr. DeMarco’s situation is one of 

chronic, unexplained pain. Id. It is possible that the pain is 

the result of the operation Mr. DeMarco underwent, however for 

seven months following the surgery, Mr. DeMarco was still doing 

well. Id. He could not give Mr. DeMarco credit for having 

arachnoiditis, which may explain the symptoms which were 

occurring in his back, because he did not have the evidence to 

say that it was a possibility. R. 646. Dr. McKenna also 

testified that the only “rock-solid” evidence of elbow problems 

came after the date last insured, on April 6, 2004. Id. Dr. 

McKenna opined that the record indicated the possibility of 

narcotic dependence. R. 646-647. 

 Dr. McKenna also testified that, between December 5, 1997 

and September 30, 2002, Mr. DeMarco’s impairments, or 

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combination of impairments, would not meet or equal the 

listings. R. 647. However, during that time, limitations would 

be imposed on the RFC. Id. The limitations would at least 

limit him to medium loads, consisting of 20 pounds occasionally 

and 10 pounds frequently, no use of ladders, ropes or scaffolds. 

R. 648. Ladders, stairs and ramps shorter than five or six 

steps limited to occasional use only, due to pain. Id. Mr. 

DeMarco would be able to balance frequently, if not under the 

constant influence of narcotics, manipulative would be limited 

to occasionally, and limited to occasional exposure to extreme 

cold and no lifting 20 pounds at arm’s length. R. 648-49. 

 Dr. McKenna opined that Mr. DeMarco should avoid exposure 

to vibrating vehicles, equipment or machinery. R. 649. He 

would, however, be able to stand and walk for eight hours at a 

time. R. 650. But he would not be able to operate, or be 

around, moving machinery where one may have to take rapid 

evasive action. R. 650-651. 

 Dr. McKenna declared that a positive straight leg test 

could be an indication of sciatica or radiculopathy. R. 651. 

Dr. McKenna stated that, if there were “solid evidence” of 

radiculopathy, he would limit Mr. DeMarco to the sedentary 

level, and would be limited to standing and walking to six hours 

and less than 30-33 percent of occasional. R. 652. 

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Mr. DeMarco’s reduced deep tendon reflexes could be 

indicative of spinal disease. R. 653. Dr. McKenna believed 

that Dr. Blas diagnosed Mr. DeMarco with radiculitis for 

insurance reasons. R. 653-654. Dr. McKenna incorporated Mr. 

DeMarco’s chronic pain complaint in determining his RFC 

limitations, however he did not understand why Mr. DeMarco had 

pain. Id. He explained that post-laminectomy syndrome is 

unexplained, ongoing, post-operative pain. R. 655-656. He 

disagreed with statements made by Dr. Velis, the agency doctor, 

who said there was a medical basis for Mr. DeMarco’s pain in his 

medical report, because there was no clear evidence of pain. R. 

656-657. 

Dr. McKenna testified that Mr. DeMarco’s medication, when 

taken in conjunction, have an increased effect on Mr. DeMarco. 

R. 657. Someone using that combination of medication may need 

to lie down due to their side effects. R. 658. However, 

chronic use of the medication would lower their sedative 

effects. Id. 

Dr. McKenna declared that, if Dr. Blas’s range of motion 

tests were accepted, Mr. DeMarco’s stooping ability would not be 

affected, because he would be able to compensate for his spine 

by using his hips. R. 660. 

 

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 3. Testimony of Vocational Expert 

Mr. Pagella is a vocational expert who had reviewed Mr. 

DeMarco’s records and listened to his testimony before the ALJ. 

R. 661. He stated that Mr. DeMarco’s skills were industry 

specific. R. 662. However, a person with the limitations Dr. 

McKenna gave Mr. DeMarco would be able to perform work in a 

light, unskilled position. R. 663. However, a person who had 

to lie down during the work day, for even an hour, would be 

unable to sustain employment. R. 664. He said that, if a 

person would have to be off task, including breaks, for more 

than 15% of the work day, they would not be able to sustain 

substantial, gainful, activity. R. 664. 

 4. Ruling 

ALJ Kraybill issued a decision denying benefits on January 

4, 2012. R. 6-18. The ALJ found that Mr. DeMarco was last 

insured on September 30, 2002. R. 8. He had not engaged in 

substantial gainful activity between his onset date of December 

5, 1997, and September 30, 2002. Id. The ALJ found that Mr. 

DeMarco had degenerative disc disease and disc herniation 

following his L4-L5 and L5-S1 decompression surgery. Id. 

However, the ALJ found that Mr. DeMarco did not have an 

impairment or combination of impairments that met or medically 

equaled the severity of a listed impairment. R. 9. In his 

decision, the ALJ took note of Dr. Boury’s and the State Medical 

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Agency’s notes, as well as Mr. DeMarco’s four year gap in 

treatment. Id. 

The ALJ found that Mr. DeMarco had the RFC to perform light 

work, except climbing long ladders, ropes and scaffolds. R. 10. 

He found that Mr. DeMarco could occasionally climb ramps, stairs 

and short ladders, stoop, kneel and crawl. Id. He should avoid 

lifting 20 pounds at arm’s length and avoid exposure to extreme 

cold and concentrated exposure to vibration. Id. 

The ALJ found that Mr. DeMarco’s “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 that they are inconsistent with the RFC. R. 12. The 

ALJ found that Mr. DeMarco was not under disability at any time 

from December 5, 1997, the alleged onset date, through September 

30, 2002, the date last insured. R. 18. 

V. DISCUSSION 

 A. Applicable Law 

An individual claiming a need for Disability Insurance 

Benefits or Social Security Insurance must prove that he has a 

disability under the terms of the Social Security 

Administration. 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 

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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 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 plaintiff bears the 

burden of proof; at step five, the burden shifts to the 

Commissioner. Id. 

 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, 290 

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 the facts 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 

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(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 his analysis by building an accurate 

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

the Court may afford the plaintiff 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 not sufficiently 

articulated, so as to prevent meaningful review, the Court must 

remand. Id. 

 B. Analysis of Mr. DeMarco’s Arguments 

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

remanded, because the ALJ failed to properly evaluate all of the 

evidence in light of his counsel’s argument and the testimony of 

the medical examiner in determining Mr. DeMarco’s RFC; and he 

failed to properly evaluate the credibility of Mr. DeMarco’s 

allegations. Mr. DeMarco also argues that the case should be 

remanded to the ALJ with instruction to award benefits to Mr. 

DeMarco. 

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 1. The ALJ’s Evaluation of the Evidence 

Mr. DeMarco argues that the ALJ did not properly evaluate 

the evidence within the record for two reasons. First, Mr. 

DeMarco argues that the ALJ did not properly interpret Mr. 

DeMarco’s previous diagnoses of radiculitis, and second, Mr. 

DeMarco argues that the ALJ misinterpreted the results of the 

straight leg test based on Dr. McKenna’s testimony. 

Mr. DeMarco argues that the ALJ erred by not finding that 

he had radiculitis, and thus should be limited to sedentary 

work. Section 405(g) of the Social Security Act provides that 

“the findings of the Commissioner of Social Security as to any 

fact, if supported by substantial evidence shall be conclusive.” 

42 U.S.C. § 405(g). “Substantial evidence must be more than a 

scintilla but may be less than a preponderance.” Skinner v. 

Astrue, 478 F.3d 836, 841 (7th Cir. 2007). Simply because a 

plaintiff has been diagnosed with a medical condition does not 

establish a functional limitation. Skinner, 478 F.3d at 845. 

An “ALJ can reject an examining physician’s opinion only for 

reasons supported by substantial evidence in the record; a 

contradictory opinion of a non-examining physician does not by 

itself suffice.” Gudgel v. Barnhart, 278 F.3d 467, 470 (7th 

Cir. 2003). 

Mr. DeMarco argues that he should be limited to a sedentary 

RFC assessment. Mr. DeMarco argues that the diagnosis of 

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radiculitis by Dr. Blas should limit Mr. DeMarco to a sedentary 

RFC assessment, because of Dr. McKenna’s testimony that, if Dr. 

McKenna had “solid evidence that [Mr. DeMarco] had 

radiculopathy, [Dr. McKenna] would automatically limit him to 

sedentary level[.]” R. 652. 

The ALJ found that “there was no clinical evidence of 

radiculopathy in the record.” R. 16. This finding was 

supported by the testimony of Dr. McKenna. R. 654-56. The ALJ 

did note that “Dr. Blas continually listed radiculitis (symptom) 

as the working diagnosis on his records[.]” R. 16. However, a 

diagnosis of radiculitis is not what Dr. McKenna testified was 

required for an automatic limitation to sedentary work. He 

testified that he would need “solid evidence,” which he did not 

have based on the record before him. R. 652, 654-54. Because 

the ALJ reasoned that Dr. Blas’ diagnosis was not supported by 

evidence in the record, including Mr. DeMarco’s limitations, the 

ALJ was proper in relying upon the opinion of Dr. McKenna in 

determining that Mr. DeMarco had a light RFC capacity. Mr. 

Demarco responds that the positive straight leg test is clinical 

evidence of radiculopathy that the ALJ did not properly 

evaluate. 

Mr. DeMarco argues that the ALJ should not have concluded 

that positive straight-leg raising tests, reduced reflexes and 

reduced range of motion were not clinical evidence of 

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radiculitis. Dr. McKenna testified that a positive straight leg 

test is: 

A meningeal sign in consult, it’s a sign of obstruction of 

nerve root. And positive straight leg can be due to tight 

hamstrings, can be due to a variety of situations but it 

was looked at positive in this kind of setting, it would be 

a sign of – it could be positive in paravertebral muscle 

spasm or it can be a sign of stretching of the nerve root 

with tenderness of that nerve root with tenderness of that 

nerve root so that never in pain in that setting. So it 

could [be] and indication of a kind of sciatica or 

radiculopathy. 

R. 651. Dr. McKenna also testified that reduced deep tendon 

reflex in the ankle and knee “could be indicative of pathology 

or it may not have any significance at all[.]” R. 653. 

 Mr. DeMarco argues that, pursuant to 20 CFR 404.1528, 

straight leg-raising tests are considered objective evidence in 

support of Mr. DeMarco’s claim. The ALJ took note of Dr. 

McKenna’s testimony regarding the multiple potential causes of 

positive straight-leg testing in his opinion. R. 15. Though 

the test could objectively indicate several maladies, it is not 

necessarily an objective sign of radiculopathy, as the plaintiff 

has argued. As such, the ALJ’s determination that the positive 

straight-leg raising tests were not indicative of radiculopathy 

was proper.

Mr. DeMarco also argues that the ALJ acted improperly by 

taking into account Dr. McKenna’s testimony regarding Dr. Blas’s 

diagnosis of radiculitis for insurance purposes. However, the 

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ALJ did not find that the diagnosis was used strictly for 

insurance purposes, as suggested by Mr. DeMarco. The ALJ took 

the testimony of Dr. McKenna into account in making his 

decision, however he did not reject the diagnosis of Dr. Blas. 

R. 16. Dr. McKenna’s RFC assessment, which the ALJ relied upon 

in making his RFC determination, took into account Mr. DeMarco’s 

chronic complaints of pain associated with the diagnosis of 

radiculitis by Dr. Blas. R. 647-50. 

The Court finds that the ALJ provides substantial evidence 

for his findings that Mr. DeMarco could perform a reduced range 

of light work. The ALJ did not error in interpreting the 

evidence. He considered the diagnosis of Dr. Blas and the 

functional limitations Mr. DeMarco would have due to his alleged 

impairments. He also reasonably relied on the testimony of Dr. 

McKenna. 

 2. The ALJ’s Evaluation of Mr. DeMarco’s Credibility 

Mr. DeMarco argues that the ALJ relied upon a mistake of 

fact in making his credibility determination, and that there is 

not substantial evidence to support the ALJ’s credibility 

determination. 

 a. Mistake of Fact 

Mr. DeMarco argues that the ALJ relied upon a mistake of 

fact in reaching his conclusions. When an ALJ’s decision, which 

is based on “matters of fact, is unreliable because of serious 

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mistakes or omissions, the reviewing court must reverse unless 

satisfied that no reasonable trier of fact could have come to a 

different conclusion, in which event a remand would be 

pointless. Sarchet v. Chater, 78 F.3d 305, 309 (7th Cir. 1996) 

(citing O’Connor v. Sullivan, 938 F.2d 70, 73-74). However, a 

mistake of fact may be considered harmless “when a contrary 

determination would have to be set aside as incredible.” Allord 

v. Barnhart, 455 F.3d 818, 821 (7th Cir. 2006). 

Mr. DeMarco argues that the ALJ made a mistake of fact by 

referencing a treatment note from September 2, 2003, after the 

date last insured, and misquoting its contents. The ALJ stated 

in his opinion that, “[a]s Dr. McKenna also noted, Exhibit 12F 

page 3 (after the date last insured) notes the claimant was 

doing extremely well.” R. 16, citing R. 279. However, the note 

does not say that Mr. DeMarco was doing extremely well. The 

note referenced, from Dr. Blas, actually says that Mr. DeMarco 

was experiencing pain which was still moderate, and was not 

being controlled by the use of M.S. Contin. Id. There is a 

note within the record which does state that Mr. DeMarco was 

doing “extremely well.” R. 236. This treatment note by Dr. 

Boury was from December 15, 1997, several days after Mr. 

DeMarco’s alleged date of injury and five years before Mr. 

DeMarco’s date last insured. Id. 

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In this case, the mistake of fact is a harmless error. 

Though the ALJ misidentified the treatment note as occurring 

after the date last insured, it still occurred during the period 

in which Mr. DeMarco alleges that he was disabled. Furthermore, 

the ALJ noted additional reasons behind his determination that 

Mr. DeMarco was only partially credible. R. 16. Accordingly, 

because the credibility finding was not based wholly on a 

mistake of fact, and because a contrary finding would be deemed 

incredible in light of the ALJ’s other enumerated reasons behind 

his determination of credibility, the mistake of fact was 

harmless, and does not require the case to be remanded. 

 b. Credibility Determination 

Mr. DeMarco also argues that the ALJ incorrectly relied 

upon limited activities when making his credibility 

determination. “Absent an error of law, [the court] may only 

reject the ALJ’s credibility determination if it is not 

supported by substantial evidence.” Cannon v. Apfel, 213 F.3d 

970, 974 (7th Cir. 1999). 

The ALJ found Mr. DeMarco partially credible, stating that 

“the record does not support the extent of pain and limitations 

alleged by the claimant.” R. 16. The ALJ then notes Mr. 

DeMarco’s use of exercise and working in his garage repairing 

lawn mower engines for a half hour to one and a half hours per 

day in July 2000. Id. He also notes Mr. DeMarco’s brief time 

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41

plowing snow in the Spring of 2002, as well as Mr. DeMarco’s 

continued work repairing engines in his garage. Id. Mr. 

DeMarco argues that this is not sufficient reasoning for finding 

him partially credible as it leaves out details from Mr. 

DeMarco’s testimony regarding his levels of pain, as well as 

limitations, which he would have to place on himself while 

working in his garage for his engine repair business and while 

plowing snow. 

The ALJ does, however, take note of Mr. DeMarco’s 

complaints of pain, as well as the testimony of Dr. McKenna 

regarding Mr. DeMarco’s complaints of pain. R. 10-16. The ALJ 

noted that Dr. McKenna testified that he “did not understand why 

[Mr. DeMarco] has pain[,]” and that the “medical evidence did 

not show how [Mr. DeMarco] went from successful decompression 

surgery to [his] allegations of pain and limitation.” R. 15. 

Furthermore, the ALJ noted that there was a four year gap in Mr. 

DeMarco’s treatment between June of 1998 and March of 2002. R. 

13. The only treatment Mr. DeMarco received during this time 

was a State Agency consultative examination on September 1, 

2000. Id. The ALJ also noted that in December of 2002, Mr. 

DeMarco’s pain was being controlled with MS Contin. R. 14. 

Because the ALJ’s credibility determination was founded 

upon substantial evidence, and he made a logical bridge from the 

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evidence to his conclusion, his finding regarding Mr. DeMarco’s 

credibility is not be overturned on review. 

 3. Reversal for an Award of Benefits 

Mr. DeMarco argues that a reversal of the case with 

instruction to award benefits is the appropriate course of 

action for this Court to take. An award of benefits may be 

instructed when “the record can yield but one supportable 

conclusion. Campbell v. Shalala, 988 F.2d 741, 744 (7th Cir. 

1993). “[A]n award of benefits is appropriate only if all 

factual issues have been resolved and the record supports a 

finding of disability. Briscoe v. Barnhart, 425 F.3d 345, 356 

(7th Cir. 2005). 

In this case, the record does not yield one supportable 

conclusion of disability. Rather, the record indicates that the 

decision of the ALJ denying benefits was supported by 

substantial evidence and the case should not be remanded. 

Accordingly, the case will not be remanded with instruction to 

award benefits. 

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VI. CONCLUSION 

For the reasons set forth above, the Court finds that the 

Commissioner did not err in denying an award of benefits to Mr. 

DeMarco. The Court denies Mr. DeMarco’s motion for summary 

judgment. 

DATE: September 20, 2013 ENTER: 

 ________________________ 

 ARLANDER KEYS 

 United States Magistrate Judge

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