IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

)

BRIAN LARSON, )

)

Plaintiff, )

) Case No: 12 C 4864

v. )

) Magistrate Judge Jeffrey Cole

CAROLYN COLVIN,1 )

Commissioner of Social Security, )

)

Defendant. )

)

MEMORANDUM OPINION AND ORDER

The plaintiff, Brian Larson, seeks review of the final decision of the

Commissioner (“Commissioner”) of the Social Security Administration (“Agency”)

denying his application for Disability Insurance Benefits and Supplemental Security

Income (“SSI”) under Titles II and XVI of the Social Security Act (“Act”). 42 U.S.C. §§

423(d); 1382c(a)(3)(A). Mr. Larson asks the court to reverse and remand the

Commissioner’s decision, while the Commissioner seeks an order affirming the decision.

I.

PROCEDURAL HISTORY

Mr. Larson applied for benefits on July 14, 2006, alleging that he had become

disabled on November 25, 2009, due to lumbar disc herniation and lower back pain

causing weakness in his legs. (Administrative Record (“R.”) 292, 332). His claim was

1

 Pursuant to Federal Rule of Civil Procedure 25(d), we have substituted Carolyn W. Colvin for

Michael J. Astrue as the appellee.
denied initially and upon reconsideration. (R. 131-138). Mr. Haralson continued pursuit

of his claim by filing a timely request for hearing. (R. 144).

An administrative law judge (“ALJ”) convened a hearing on May 6, 2008, and

denied Mr. Larson’s application. (R. 109). Mr. Larson requested review of the decision

and the Appeals Council remanded the case. (R. 121-22, 190). A second hearing was

held on March 18, 2011, at which Mr. Larson, represented by counsel, appeared and

testified. In addition, Dr. Sheldon Slodki testified as a medical expert and Thomas

Dunleavy testified as a vocational expert. (R. 38-106). On April 15, 2011, the ALJ

issued a decision finding that Mr. Larson was not disabled because he retained the

capacity to perform a full range of light work. (R. 18-31). This became the final

decision of the Commissioner when the Appeals Council denied Mr. Larson’s request for

review of the decision on May 25, 2012. (R. 1-6). See 20 C.F.R. §§ 404.955; 404.981. 

Mr. Haralson has appealed that decision to the federal district court under 42 U.S.C. §

405(g), and the parties have consented to the jurisdiction of a Magistrate Judge pursuant

to 28 U.S.C. § 636(c).

II.

THE EVIDENCE OF RECORD

A.

The Vocational Evidence

Mr. Haralson was born on September 18, 1979, making him thirty-one years old

at the time of the ALJ’s decision. (R. 292). He has a high school education. (R. 339). 

He has had a variety of jobs, most recently as a saw operator, which required him to

2
frequently lift and carry 50 pounds. (R. 333-34). Prior to that, he briefly worked as a

receiving clerk at a casino and as a material handler. (R. 333).

B.

The Medical Evidence

The record in this case is a 1600-page morass of medical reports in no particular

order. The distillation of all that is essentially that Mr. Larson has back pain despite a

couple of surgical procedures and other treatments, and abdominal pain with diarrhea that

was, for the most part, controlled with medication. His treating physician doesn’t think

he can perform any kind of work – not even sedentary work. 

1.

Back Issues

Mr. Larson had an MRI in September 2005 that revealed disc herniation at the

L5-S1 level. (R. 1003). On November 21, 2005, Mr. Larson saw Dr. Michael Malek, a

neurosurgeon, on a referral from Dr. Gustavo Pedraza. (R. 1002). He complained of low

pain that had started in July 2005. Occasionally, he felt weakness in his legs. Walking

was particularly bothersome and lying on his back aggravated his condition. Sitting

relieved his discomfort for brief periods. Mr. Larson had three epidurals with no

significant result. His reflexes were hypoactive, but straight leg raising and remainder of

exam were within normal limits. He had no significant radicular pain. Dr. Malek

referred him for physical therapy. (R. 1002-03). 

About a week later, Mr. Larson was “pretty miserable.” He said he couldn’t

really function with the pain (R. 1001). Dr. Malek told him if this was so, a spinal fusion

3
might be the best course. (R. 1001). Mr. Larson then had a discogram, which was

positive at L5/S1. Dr. Malek discussed a range of options with Mr. Larson and told him

to stop smoking. (R. 1000). On February 3, 2006, fusion was performed at L5-S1 with

laminectomy, discectomy, instrumentation with cage, and grafting (R. 1024). On March

13, 2006, his x-rays looked excellent. Straight leg raising was negative. He had some

paraspinal pain especially into the left buttock – this was to be expected post-surgery. 

(R. 998, 999). 

X-rays were again excellent on May 1, 2006. He was kept off work until further

notice. (R. 997). Three months after surgery, on June 5, 2006, Dr. Malek reported that

Mr. Larson was doing excellently. He recommended he taper off wearing his brace off

and sent him to physical therapy. (R. 996). X-rays taken on July 28, 2006, showed a

compression deformity of T-12 (R. 1013). On August 7, 2006, plaintiff stated he was

finishing his therapy and has a “job description” coming up. Dr. Malek recommended

that it be “lighter duty and not involving any physical activity” (R. 995). 

On September 29, 2006, Mr. Larson had a consultative examination that

Disability Determination Services arranged. Mr. Larson said he felt a little better after

his surgery but now had non-radiating pain that was 6/10 and achy; sometimes sharp. (R.

966). He also related a history of chronic abdominal pain due to Crohn’s disease. He

also had a history of depression, having attempted suicide six years earlier. (R. 966). 

Mr. Larson said he could walk two blocks, stand for 30 minutes and sit for 30 minutes at

a time. He could lift 20 pounds. (R. 967). Range of motion in upper and lower

extremities and cervical spine was normal, but lumbar flexion was limited to 30 degrees

4
out of 90, and extension was just 10 degrees. Straight leg raising was negative. (R. 968). 

There was moderate lumbar tenderness. Neurological exam was normal. (R. 968). 

On October 4, 2006, Dr. Michael Nenaber, reviewed the medical record for the State

Disability Agency, and concluded that Mr. Larson was capable of medium work activity –

lifting 50 pounds and carrying 25, with occasional stooping and crouching. (R. 985). He

noted that Mr. Larson was status post-fusion, with a lumbar range of motion limited to 30 out

of 90 degrees, but had negative straight leg raising and could ambulate without assistance. 

(R. 992). Dr. Francis Vincent affirmed Dr. Nenabar’s opinion on January 9, 2007. (R.

1125). 

On November 6, 2006, Dr. Malek noted Mr. Larson was still complaining of pain and

stiffness, but the doctor noted there was no tenderness. Physical therapy was helping and Dr.

Malek said that would continue. (R. 994). A CT scan taken on November 14, 2006, showed

significant soft tissue in the posterior paraspinal spaces at the operative sites which appeared

to extend into the spinal canal and surround the thecal sac and likely represented postoperative scarring. The L5 right-sided screw appeared to breach the anterior vertebral body

margin. There were minimal diffuse disc bulges at L3-4 and L4-5, mild spinal canal

stenosis at L3-4, mild neural formainal narrowing at L4-5, and facet joint hypertrophy at

L2-3, L3-4 and L4-L5 (R. 1004). The lumbar MRI taken November 14, 2006, showed a

mild diffuse disc bulge at L4-5 causing minimal ventral impression on the thecal sac but

no significant spinal stenosis, and mild neural foraminal narrowing (R. 1006). The MRI

also showed enhanced post-operative scar tissue in the posterior paraspinal soft tissues at

the surgical sites, and at the L4-5 and L5-S1 levels it does extend into the spinal canal to

surround the thecal sac and extend into the lateral recesses. It is unclear if this was

5
causing any mass effect on the nerve roots. (R. 1007). On November 20, 2006, Dr.

Malek noted the MRI showed no pathology at L4-L5, and that the discs above looked

good, too. Mr. Larson had decreased tolerance to certain activities such as being in a car

for a period of time, but Dr. Malek said that would improve with time. Physical therapy

was continued. (R. 1403).

On January 29, 2007, Mr. Larson still had significant achiness and pain, primarily in

his back, with occasional tingling in his leg. Dr. Malek recommended bilateral SI injections

(R. 1402). An MRI taken on January 31, 2007, revealed small mild anterior wedging of T12

and L1 with prominent endplate nodules from T11-L3, extradural defects from L2/L3-L4/L5

indenting the dural sac and extending into the spinal canal, and mild degenerative changes

about the posterior facet joints in L3/L4. Loss of signal from remaining L5/S1 disc space

related to post-surgical changes and degenerative change (R. 1587-1588). 

On February 19, 2007, Dr. Malek noted that Mr. Larson continued to complain of

pain despite the epidural and sacroiliac injection. A CT scan indicated some area within the

bone where the fusion was not complete. Dr. Malek recommended a discogram and

prescribed Lyrica (R. 1145). On March 19, 2007, Dr. Malek reported that the discogram

was positive above the fusion but the fusion had taken well. He was unsure what was

causing the pain and speculated it might be the metal itself. He felt it was unlikely that

removing the metal would result in significant improvement. The doctor added that the

problem might also be pseudoarthrosis.2

 (R. 1144). On April 10, 2007, Dr. Malek removed

2

 Pseudoarthrosis is the result of a failed attempt to fuse the spine. 

http://www.ncbi.nlm.nih.gov/pubmed/19652031.

6
all the hardware and re-did the fusion. (R. 1584). As of April 23rd, Mr. Larson was doing

pretty well (R. 1143). 

Mr. Larson was back to see Dr. Malek on May 9, 2007, after falling and landing

on his buttocks. Straight leg raising was negative for radiculopathy, but reproduced back

pain. X-rays looked good. Mr. Larson was wearing a back brace; Dr. Malek wanted to

taper him off of that through water therapy and then land based therapy. He kept him off

work (R. 1582). While Dr. Malek stated that there was solid fusion on the x-rays, the

radiologist was more cautious, stating only that there may be a partial osseous union at

the L5-S1 disc space (R. 1583). By June 25, 2007, Mr. Larson continued to have

soreness in his back, but Dr. Malek remarked that his MRI looked really good with no

pathology above the level of his fusion. (R. 1381).

Six weeks of water therapy yielded little improvement. Mr. Larson could

ambulate farther and had lower extremity strength of 4+/5, but had poor sitting tolerance. 

His pain was generally 6-7 out of 10. His gait remained antalgic. (R. 1536-1537).

On October 17, 2007, Mr. Larson told Dr. Malek that he was applying for

disability benefits. Dr. Malek indicated he would set him up with a functional capacity

evaluation. (R. 1535). By March 10, 2008, Mr. Larson had “not had the chance” to

undergo his functional capacity evaluation. (R. 1534). On March 26, 2008, Dr. Malek

noted that x-ray showed excellent fusion. But he also noted that Mr. Larson suffered

paraspinal pain and recommended another caudal epidural and bilateral S1 injection (R.

1532). On August 28, 2008, Dr. Malek reported that Mr. Larson was continuing to have

7
pain. He noted positive discography at L5-S1 and MRI evidence of disc herniation and

dessication at that level. (R. 1580). 

On October 15, 2008, Dr. Malek opined “...patient’s pain level is to the point

where I don’t think he could work” (R. 1556). The injections he recommended were not

covered by Mr. Larson’s insurance. (R. 1552, 1556). A CT scan taken on October 30,

2008, revealed a mild posteriorly directed osteophyte formation at the L5/S1 level which

contributed to moderate neural foraminal narrowing, and diffused disc bulges at L2/3,

and L4/5 which contributed to mild central canal stenosis and possibly neural foraminal

narrowing at L3/4, and mild to moderate bilateral neural foraminal narrowing at L4/5 (R.

1554-1555). On November 10, 2008, Dr. Malek stated he thought a lot of the problem

could be related to next level disease.3

 He also noted some evidence of incomplete

fusion. He ordered plain films to assess the posterolateral fusion (R. 1552-1553). On

November 17, 2008, Dr. Malek reported that the x-ray showed excellent fusion

posterolaterally, but Mr. Larson still complained of “persistent neuropathic pain,

especially left sided.” (R. 1547). Dr. Malek continued keeping him off work. (R. 1547).

Mr. Larson had an MRI and an EMG/NCV on January 20, 2009. (R. 1544-46). 

Dr. Malek reported that the MRI showed no evidence of focal pathology. There was

mild bulging at L4-L5 but no significant narrowing. The EMG NCV showed denervation

in bilateral and mid lumbar paraspinal musculature suggestive of either post-operative

changes or chronic lumbar radiculopathy. The doctor noted Mr. Larson’s chief complaint

3

 Spinal fusion can sometimes simply transfer the stress to the “next level” of the spine. 

http://www.spine-health.com/treatment/spinal-fusion/indications-two-level-spinal-fusion. 

8
at that point was weakness after walking. Dr. Malek felt it was probably related to

underlying nerve pathology and could only be treated with exercise and therapy. He

changed Mr. Larson’s medication from Lyrica to Elavil, and referred him to the pain

clinic for spinal cord stimulation evaluation. (R. 1540-1541). 

On May 26, 2009, Mr. Larson was continuing to have insurance problems. Dr.

Malek reported that the “Delay in authorization adversely affecting outcome both in

terms of habituation to medication, psychological decline and affliction as well as

decreased likelihood of functional return to work post-surgical rehabilitation as well as

decreased likelihood of symptom resolution” (R. 1566). The doctor provided an

Attending Physician Statement of Disability stating that there were objective findings of

disc bulge at L2-3, L3-4, L4-5 and neural foraminal narrowing at L4-5. Dr. Malek stated

that Mr. Larson initially had excellent results from treatment but regressed and needed a

spinal cord stimulator. He opined that he has severe limitation of functional capacity and

was incapable of even sedentary work (R. 1559-1560). 

On August 3, 2009, Dr. Pedraza noted he still had swelling of his feet, even after

holding the Diltiazem. Back pain was same. Sleep was poor. He stays awake until 3:00

a.m. He prescribed Klonopin for back pain (R. 1594). On August 5, 2009, Dr. Malek

noted that the delay in approving the stimulator was adversely affecting the outcome of

Mr. Larson’s treatment. (R. 1563). On October 26, 2009, Dr. Malek provided another

Attending Physician Statement, opining that Mr. Larson was totally disabled for any

occupation and that his condition was permanent (R. 1562). On December 16, 2009, Dr.

Malek stated Mr. Larson’s insurance did not cover his back and his symptoms worsened

9
with changes in weather (R. 1577-1578). On April 21, 2010, Dr. Malek reported that Mr.

Larson was still miserable with his pain and kept him off work. (R. 1575-1578). 

2.

Other Issues

Mr. Larson saw Dr. Ali Keshavarzian, on April 17, 2006, for evaluation of

possible small bowel mass. He complained of symptoms the doctor found compatible

with irritable bowel syndrome and hemorrhoids. He had diffuse abdominal pain that

became severe in December 2005, and had bothersome pain since then. Mr. Larson

admitted he smoked two packs a day. (R. 1464-1465). As of June 19, 2006, he still had

constant right lower quadrant pain, sharp and severe and five to seven times a day liquidlike stool. There was mild diffuse abdominal tenderness on examination. (R. 1462-1463).

On August 7, 2006, Dr. KIeshavarzian diagnosed Crohn’s disease. He prescribed

Colestid and Entocort (R. 1461). On December 4, 2006, Mr. Larson’s Crohn’s disease

was in remission, however, he continued to have abdominal pain which was clearly

worsened by bending over and by lateral movements of his hip and back. Dr.

Keshavarzian concluded the abdominal pain was referred pain from his back. (R. 1459). 

 Mr. Larson saw Dr. Rotnicki, a GI specialist, on June 13, 2007. He complained

of abdominal pain, vomiting after eating, and said he had lost 16 pounds in a couple of

months. (R. 1499). On July 6, 2007, Mr. Larson continued to complain of upper

abdominal pain right after eating. The medication he was taking – Protinix and Symax

were decreasing his pain and bowel movement frequency. His Colestid was controlling

his diarrhea. (R. 1497). 

10
On June 22, 2010, Dr. Pedraza noted he still had the same abdominal pain.

Diagnosis included diabetes, Type II. (R. 1593). He had been diagnosed with Impaired

Fasting Glucose on June 30, 2008. (R. 1604). 

C.

The Administrative Hearing Testimony

1.

The Plaintiff’s Testimony

At his hearing, Mr. Larson testified that he lived with his parents. (R. 46). They

had driven him to the hearing; he could drive, but no more than a half hour. (R. 47). He

received disability insurance from the last place he worked. (R. 45). He explained that

he took prescription medications for his Crohn’s disease and Tylenol for his back. He

also took hot showers and used a TENS unit. (R. 47-48). Pain medication aggravated his

Crohn’s disease. (R. 48). 

Mr. Larson spent a typical day watching television or sitting outside if the

weather was pleasant. (R. 49). He did no cooking or cleaning. He did drag his laundry

downstairs in a basket on wheels. (R. 50). His mother did the housework and shopping. 

(R. 51). He had no hobbies. (R. 51). He sometimes visited his eight-year-old

goddaughter. (R. 53). Mr. Larson didn’t do much else; he explained that he couldn’t

handle sitting or standing a lot of times. (R. 53). 

During the hearing, he rated his back pain as a 7/10. (R. 54). It sometimes

radiated down to his legs when he was in one position too long. (R. 54). He thought he

could lift about ten pounds but not for very long. (R. 54).

11
2.

The Medical Expert’s Testimony

Dr. Slodki then testified as a medical expert. He apparently had not reviewed all

of the records – he had not seen exhibits 33F or 34F. (R. 67). The doctor testified as to

the records he did review, and first concluded – exclusive of any psychological disorders

– that Mr. Larson did not meet any listed impairment. (R. 72-73). Mr. Larson’s counsel

agreed that there was no need to address Mr. Larson’s depression and history of alcohol

abuse because these were not severe impairments. (R. 89-90). Mr. Larson said they

were not an issue. (R. 89). Dr. Slodki went on to determine that Mr. Larson was capable

of performing light work as of January 2008. (R. 74-75). He did not agree with the

opinion of Mr. Larson’s treating physician that he was totally disabled. (R. 84).

3.

The Vocational Expert’s Testimony

Mr. Dunleavy then testified as a vocational expert (“VE”). The ALJ first asked

the VE whether a person with plaintiff’s age, education and work experience, could lift

50 pounds and carry 25, and could occasionally stoop and crouch would be able to

perform Mr. Larson’s past work. The VE said that such an individual could not perform

such work due to the postural limitations. (R. 95). But he also said that an individual

with the foregoing limitations would be able to perform other work, specifically, laundry

worker, dishwasher, or hand packager. There were approximately 5,000 laundry worker

jobs in Illinois, 20,000 dishwasher jobs, and 20,000 hand packager jobs. (R. 96). If the

hypothetical individual were limited to a full range of light work, vocational testimony

12
would be unnecessary because the ALJ could simply consult the Medical-Vocational

Guidelines (“Grid”). (R. 96-98). 

If a person had to lean on something when they were standing, that would rule out

light work but a number of sedentary jobs would remain, including assembler (8,000

positions), sorters (2,000), and touch up screeners (4,000). (R. 100). The VE didn’t think

a person who needed to elevate his feet every hour would be accommodated that those

positions. (R. 103-04). 

D.

The ALJ’s Decision

The ALJ found that Mr. Lawson suffered from the following severe impairments:

“low back impairment status post fusion surgery, irritable bowel syndrome,

gastroesophageal reflux disease, controlled iniod [sic] Crohn’s disease, hemorrhoids,

appendicitis, rheumination [sic] syndrome (effortless regurgitation of meals), and

hypertension.” (R. 22). She further found that Mr. Lawson did not have an impairment

or combination of impairments that met or equaled a listed impairment. (R. 22-23). 

Next, the ALJ summarized the evidence in the medical record and discussed Mr.

Lawson’s testimony, and determined that he could perform a full range of light work. (R.

23-28).

The ALJ found Mr. Lawson “less than fully credible.” (R. 29). She felt that the

medical evidence did not support the extent of his allegations and noted that he did not

take prescription pain medication. (R. 29-30). Despite the fact that Crohn’s disease is a

wasting sickness and Mr. Larson alleged frequent vomiting, he had gained weight since

13
his alleged onset date. (R. 30). Objective evidence regarding Mr. Larson’s intestinal

issues showed no more than mild impairments. (R. 30). 

The ALJ rejected the opinion of Mr. Larson’s treating physician in favor of the

opinion of the medical expert, Dr. Slodki, who felt Mr. Larson could do light work. (R.

29). She explained that Dr. Malek’s opinion that Mr. Larson was disabled was contrary

to his treatment notes and the record as a whole. She felt it was based in large part on

Mr. Larson’s complaints. (R.29). The ALJ found Dr. Slodki’s opinion to be consistent

with the record and she adopted it as her own. (R. 29).

Given Mr. Larson’s age, education, work experience, and capacity for a full range

of light work, the ALJ employed the Medical Vocational Guidelines to find Mr. Larson

not disabled. (R. 30-31). Therefore, he was not entitled to benefits under the Act. (R.

31).

IV.

DISCUSSION

A.

The Standard of Review

The applicable standard of review of the Commissioner’s decision is a familiar

one. The court must affirm the decision if it is supported by substantial evidence. 42

U.S.C. §§ 405(g). Substantial evidence is such relevant evidence as a reasonable mind

might accept to support a conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008),

citing Richardson v. Perales, 402 U.S. 389, 401 (1971). The court may not reweigh the

evidence, or substitute its judgment for that of the ALJ. Terry v. Astrue, 580 F.3d 471,

14
475 (7th Cir. 2009); Berger, 516 F.3d at 544. Where conflicting evidence would allow

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

responsibility to resolve those conflicts. Elder v. Astrue, 529 F.3d 408, (7th Cir. 2008); 

Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997). Conclusions of law are not entitled

to such deference, however, so where the Commissioner commits an error of law, the

court must reverse the decision regardless of the volume of evidence supporting the

factual findings. Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir. 2007). 

While the standard of review is deferential, the court cannot act as a mere “rubber

stamp” for the Commissioner’s decision. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir.

2002). An ALJ is required to “minimally articulate” the reasons for his decision. 

Berger, 516 F.3d at 544; Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). 

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

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

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

validity of his findings and afford the claimant a meaningful judicial review. Hopgood

ex rel. L.G. v. Astrue, 578 F.3d 696, 698 (7th Cir. 2009). The Seventh Circuit calls this

building a “logical bridge” between the evidence and the ALJ’s conclusion. Sarchet v.

Chater, 78 F.3d 305, 307 (7th Cir. 1996). It has also called this requirement a “lax” one. 

Berger, 516 F.3d at 544.

15
B.

The Five-Step Sequential Analysis

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

determine whether a plaintiff is disabled:

1) is the plaintiff currently unemployed;

2) does the plaintiff have a severe impairment;

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

impairments listed as disabling in the Commissioner’s regulations;

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

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

economy?

20 C.F.R. §§ 404.1520; Simila v. Astrue, 573 F.3d 503, 512-13 (7th Cir. 2009); Briscoe ex

rel. Taylor v. Barnhart, 425 F.3d 345, 351-52 (7th Cir. 2005). An affirmative answer

leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled. 

20 C.F.R. §416.920; Briscoe, 425 F.3d at 352; Stein v. Sullivan, 892 F.2d 43, 44 (7th Cir.

1990). A negative answer at any point, other than step 3, stops the inquiry and leads to a

determination that the claimant is not disabled. 20 C.F.R. §404.1520; Stein, 892 F.2d at

44. The claimant bears the burden of proof through step four; if it is met, the burden

shifts to the Commissioner at step five. Briscoe, 425 F.3d at 352, Brewer v. Chater, 103

F.3d 1384, 1391 (7th Cir. 1997).

16
C.

Analysis

Mr. Larson first argues that the ALJ erred by not according controlling or

adequate weight to the opinion of his treating physician. Second, he submits that the ALJ

ought not to have relied upon the testimony of Dr. Slodki because he didn’t review the

entire record and made mistakes reviewing the record. Third, he contends the ALJ erred

by failing to include any postural limitations in his residual functional capacity finding. 

Finally, he says that the ALJ failed to adequately assess his credibility.

1. 

A treating physician's opinion is entitled to controlling weight unless it is not

supported by the physician's records or is inconsistent with the reports of other sources.

20 C.F.R. § 404.1527(d)(2); Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011). An ALJ

who concludes that such an opinion is not entitled to controlling weight must give good

reasons for that conclusion. Martinez v. Astrue, 630 F.3d 693, 698 (7th Cir.2011); Punzio

v. Astrue, 630 F.3d 704, 710 (7th Cir.2011); The ALJ determined that Dr. Malek’s

opinion was entitled to little weight because it was inconsistent with his treatment notes

and the record as a whole. The ALJ noted that Dr. Malek repeatedly referred to x-rays

indicating that the spinal fusion looked fine. The ALJ also said Dr. Malek based his

opinion that Mr. Larson could not work in large part on Mr. Larson’s subjective

complaints because he indicated his pain was at a level where he could not work and his

treatment notes did not include many physical examination findings. The ALJ also

criticized Dr. Malek’s opinion as contradictory to Dr. Slodki’s. Finally, the ALJ

17
explained that the determination of the claimant’s residual functional capacity was

reserved to the Commissioner. (R. 29). 

First, while the ultimate question of whether a claimant is disabled to a degree to

qualify for benefits is, indeed, a matter reserved to the Commissioner – and the

Commissioner’s delegate, the ALJ, 20 C.F.R § 404.1527(d) – that’s not a valid reason to

accord a treating physician’s opinion little weight. See Moore v. Colvin, – F.3d –, –,

2014 WL 763223, *7 (7th Cir. 2014)(ALJ could not simply dismiss treating physician’s

opinion that claimant was disabled due to that issue being reserved to the Commissioner);

Garcia v. Colvin, 741 F.3d 758, 760 (7th Cir. 2013)(ALJ could not simply reject treating

physician’s opinion on the ground that the issue of disability was reserved to the

Commissioner). If it were a valid reason, then every treating physician’s opinion in

every case would be worthless.

Second, while an ALJ may reject a treating physician’s opinion if it is based on

the claimant’s subjective complaints, Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir.

2008), that was not the case here. Dr. Malek was Mr. Larson’s treating physician and

surgeon. He had an extended treating history with him. Along the way, Dr. Malek

reviewed any number of objective studies. Nearly all of his notes refer to results from

studies like MRIs or CT scans. These led him to believe that Mr. Malek needed not one,

but two spinal fusions.4

 As such, it was not as though there was an absence of evidence

4

 Both the ALJ and the Commissioner focus on Dr. Malek’s occasional comments that x-rays showed

the Mr. Larson’s spine fusion looked good. (R. 29; Defendant’s Memorandum, at 5). But MRIs, CT

scans, and discograms revealed other problems. Moreover, the fusion may have looked good

originally, but ultimately had to be redone. And while the second fusion may have looked good

originally, later studies revealed evidence that the fusion was incomplete.

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to verify the pain Mr. Larson claimed he was suffering. See Parker v. Astrue, 597 F.3d

920, 922 (7th Cir. 2010).

The doctor also felt that Mr. Larson was a candidate for an implantation of a

stimulator – yet another surgical procedure. This plan was scotched due to the limits of

Mr. Larson’s health insurance. Dr. Malek was not simply accepting Mr. Larson’s

complaints of pain and dispensing pain pills. He was pursuing a rather aggressive course

of treatment. The ALJ was wrong to reject his opinion as based solely on Mr. Larson’s

subjective complaints. Moore, – F.3d at –, 2014 WL 763223, 7 (ALJ was wrong to

dismiss doctor’s opinion because it was based on claimant’s complaints of pain where

doctor was providing course of pain management not based on drugs); Parker, 597 F.3d

at 922-23 (ALJ was wrong to brush aside doctor’s statement that claimant had disabling

pain). Accordingly, this matter must be remanded to the Commissioner.

2.

Another reason the ALJ rejected the opinion of Mr. Larson’s treating physician

was because he favored the opinion of Dr. Slodki, the medical expert. If an ALJ does not

give a treating physician's opinion controlling weight, the regulations require the ALJ to

consider the length, nature, and extent of the treatment relationship, frequency of

examination, the physician's specialty, the types of tests performed, and the consistency

and supportability of the physician's opinion. Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009).

Dr. Slodki, of course, never examined Mr. Larson and did not review the entire record,

while Dr. Malek treated Mr. Larson regularly over the course of a few years and

consulted with his general practitioner. This favors Dr. Malek’s opinion over that of Dr.

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Slodki. McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011); Suide v. Astrue, 371

Fed.Appx. 684, 689 (7th Cir. 2010). Dr. Malek is a spinal surgeon, while Dr. Slodki is an

internist. This factor, too, weighs in favor of Dr. Malek’s opinion. Yet, the ALJ still

went with Dr. Slodki. 

The ALJ hung his hat on his perception that Dr. Slodki’s opinion was more

consistent with the record than that of Dr. Malek. But it’s unclear how. As noted, Dr.

Slodki did not review the entire record. His file was missing exhibits 33F and 34F, about

80 pages of medical evidence. As noted, the record is a bit of a mess, so many of these

records may have been duplicative of records Dr. Slodki did review. But, his testimony

reveals that he did struggle with the timeline of Mr. Larson’s course of treatment. 

According to Dr. Slodki, Mr. Larson improved after his first fusion, then suffered a fall

that led to a regression and increase of his symptomatology, ultimately necessitating a

second surgery to take care of it. (R. 74). That’s wrong. The original fusion –

performed in February 2006 – failed and a second had to be performed in April 2007. 

Mr. Larson had his fall and regression shortly after that, in May 2007. So if, as Dr.

Slodki says, the evidence shows the fall showed regression of symptomatology, no

surgery ever corrected it. 

Dr. Slodki also seems to ignore the numerous MRIs, CT scans, and discograms in

the record. He indicates that Mr. Larson can perform a full range of light work, without

any postural limitations like limited stooping or crouching. (R. 80). Dr. Slodki based his

opinion, in substantial part, on the fact that x-rays failed to show significant abnormality

after the second fusion. (R. 80). But, as already noted, the other types of tests were not

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so positive and, by November 2008, even belied the x-rays that indicated the second

fusion looked good. Dr. Slodki also supported his opinion with the assertion that people

who have fusion surgery can generally do everything after a complete program of

physical therapy. (R. 80). That really doesn’t speak to Mr. Larson’s situation at all. In

Mr. Larson’s case, the record demonstrates that therapy was essentially unsuccessful.

Moreover, Dr. Slodki’s opinion runs counter to that of the physicians who

reviewed the record in October 2006 and January 2007; both said Mr. Larson could only

occasionally stoop or crouch. According to Dr. Slodki, Mr. Larson’s condition didn’t

improve after those dates. He stated that after April 2007, Mr. Larson “never got better.” 

(R. 77). Despite all this, if the ALJ truly felt that Dr. Slodki’s opinion was more

consistent with the record that Dr. Malek’s, he had to thoroughly explain why. It is

certainly not apparent that it is from the record. This, too, necessitates a remand.

3.

Given that this case must be remanded, we need not address at length the ALJ’s

credibility finding – but a few points are worth making. The ALJ found Mr. Larson’s

complaints of disabling back pain not credible for two reasons: the objective tests –

MRIs, CT scans, discograms, etc. – did not support that level of severity and Mr. Larson

did not take prescription pain medication. (R. 29-30). The Seventh Circuit has had much

to say with regard to the first reason. On the one hand, the court has allowed – repeatedly

– that a discrepancy between a claimant’s allegations and the medical evidence may

support a finding that the claimant is exaggerating his symptoms. See, e.g., Jones v.

Astrue, 623 F.3d 1155, 1161 (7th Cir. 2010); Seamon v. Astrue, 364 Fed.Appx. 243, 250

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(7th Cir. 2010); Getch v. Astrue, 539 F.3d 473, 483 (7th Cir. 2008); Sienkiewicz v.

Barnhart, 409 F.3d 798, 804 (7th Cir. 2005). 

But, on the other hand, it has also said that an ALJ may not discredit a claimant’s

testimony based on the medical evidence alone. See, e.g.., Thomas v. Colvin, – F.3d –, –,

2014 WL 929150, 3 (7th Cir. 2014); Moore, – F.3d at –, 2014 WL 763223, 6; Bjornson v.

Astrue, 671 F.3d 646, 648 (7th Cir. 2012). Judge Posner put it this way in Parker:

We do not suggest that the absence of verifiable medical evidence of pain

is an inadmissible consideration in a disability proceeding. In some cases,

pain does have an objectively verifiable source, and if so the

administrative law judge may certainly treat this as evidence that the

claimant is disabled. And if the presence of objective indicators thus

makes a claim more plausible, their absence makes it less so. It would be a

mistake to say “there is no objective medical confirmation of the

claimant's pain; therefore the claimant is not in pain.” But it would be

entirely sensible to say “there is no objective medical confirmation, and

this reduces my estimate of the probability that the claim is true.” The

administrative law judge said the first, not the second.

597 F.3d at 922-23. 

In the instant case, there was medical confirmation of Mr. Larson’s pain. It

would seem, therefore, that the ALJ had to explain why, for example, MRI evidence of

disc herniation and bulging – which is perfectly consistent with Mr. Larson’s claim of

pain – was inconsistent with the level of pain claimed by Mr. Larson. He could not

simply summarize the evidence and say it didn’t support Mr. Larson’s allegations. Just as 

an expert’s ipse dixit is not acceptable, General Elec. Co. v. Joiner, 522 U.S. 136, 146

(1997); Wendler & Ezra, P.C. v. American Intern. Group, Inc., 521 F.3d 790, 791 (7th

Cir.2008), neither is an ALJ’s. That is the whole point of the logical bridge requirement.

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The ALJ’s other reason for discrediting Mr. Larson’s allegations regarding his

back pain is also troubling. Mr. Larson doesn’t take prescription pain medication due to

his Crohn’s disease. Even Tylenol bothers his stomach. That being the case, the failure

to take pain medication at least potentially has absolutely no relevance. Analytically, it

isn’t any different than ALJ’s rejection of claims of pain because the claimant did not go

to a hospital because she had no funds and no insurance. The ALJ improperly ignored

Mr. Larson’s serious medical condition that would have explained his failure to take

medicine and thus made improper the ALJ’s adverse determination. See Shauger v.

Astrue, 675 F.3d 690, 696 (7th Cir. 2012)(ALJ must explore the reasons for failing to seek

treatment including intolerable side effects of medication). It’s not as if Mr. Larson was

lax about seeking relief from pain. He had two surgeries and would have had another to

implant a stimulator had his insurance been better. The ALJ’s failure to discuss any of

this is mystifying.

CONCLUSION 

The plaintiff’s motion for remand [Dkt. #16] is GRANTED, and the

Commissioner’s motion for summary judgment is DENIED.

ENTERED: 

UNITED STATES MAGISTRATE JUDGE

DATE: 3/19/14

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