IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

THOMAS DANTE,

Plaintiff, 

v. 

CAROLYN W. COLVIN,

,

Commissioner of 

Social Security, 

Defendant. 

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) No. 12 C 4381

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) Magistrate Judge Arlander Keys

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MEMORANDUM OPINION AND ORDER

This case is before the Court on Thomas Dante’s motion

for summary judgment. He seeks judicial review of the final

decision of the Commissioner of Social Security finding him

not disabled and denying his claim for Social Security

Benefits under Title II of the Social Security Act, 42

U.S.C. §§416 and 423. 

Mr. Dante raises several issues for review, including:

1) whether the Administrative Law Judge (“ALJ”) erred when

she rejected Dr. Hallman’s opinion that Mr. Dante needed to

elevate his legs to prevent swelling, 2) whether the ALJ

improperly determined that Mr. Dante experienced no side

effects from his medication because of his failure to report

the side effects to his physicians, 3) whether the ALJ

failed to explain the support behind her conclusion that a

one-minute break to stand was an appropriate accommodation,
4) whether the ALJ failed to resolve conflicts in the

evidence presented by the vocational expert, 5) whether the

ALJ erred when she failed to order a consultative

psychiatric examination upon her determination that Mr.

Dante suffered from a severe mental impairment, and 6)

whether the ALJ improperly evaluated Mr. Dante’s

credibility. For the reasons set forth below, Plaintiff’s

motion for summary judgment is granted, and the

Commissioner’s motion for summary judgment is denied. 

BACKGROUND FACTS

PRE-DECISION PROCEDURAL HISTORY

On January 26, 2009, Plaintiff, Thomas Dante, applied

for Disability Insurance Benefits (DIB), and Supplemental

Security Income (SSI), alleging that he became disabled on

June 4, 2007 because of ankle injuries, arthritic knees, and

dyslexia. In February 2009, his application for SSI was

denied because he and his wife owned $180,000 in resources

by the date of his January 2009 application, exceeding the

$3,000 SSI resource limit. His application for DIB was soon

after denied on April 30, 2009, because it was determined

that, based on the medical evidence, although he could not

perform his previous job, he had the ability to perform

sedentary work. On May 18, 2009, Mr. Dante filed a request

2
for reconsideration, which was also denied based on medical

evidence that he could still perform sedentary work. 

On August 6, 2009, Mr. Dante filed a request for a

hearing before an Administrative Law Judge (ALJ), which was

conducted on December 13, 2010. ALJ Roxanne Kelsey issued a

ruling denying benefits on December 23, 2010, finding that

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

(d) of the Social Security Act.

POST-DECISION PREOCEDURAL HISTORY

Mr. Dante requested review by the Appeals Council, but

was denied on May 7, 2012. Thus, the ALJ’s decision became

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

complaint with this court on May 30, 2012, seeking a review

of the decision. The parties consented to exercise of

jurisdiction by a magistrate judge on August 14, 2012.

Thereafter, cross-motions for summary judgment were filed. 

This Court has jurisdiction pursuant to 42 U.S.C. §405(g).

HEARING TESTIMONY

I. Claimant’s Hearing Testimony

At the December 13, 2010 hearing before the ALJ, Mr.

Dante, who was born on April 4, 1968, appeared and was

represented by counsel. Mr. Dante testified that he has a

high school diploma. [R. at 34.] During high school, he

took regular classes as well as supplemental classes to

3
assist students with learning disabilities. [R. at 35.] He

testified that he did not pursue any formal education or

vocational courses after graduating from high school. [R.

at 36.] 

Mr. Dante testified that he had not worked since June

of 2007. [R. at 36.] He also testified that he was injured

while at work at Kraft, but that he was able to continue

working for a while after the injury occurred. Id. Mr.

Dante testified to seeking medical attention for his injury. 

[R. at 37.] He also testified to having surgery for the

injury, which he stated was very painful and long-lasting. 

Id. Mr. Dante testified that the surgery was to address

problems with his ankle, but that he is also experiencing

problems with his right knee. Id. He testified to needing

a full-knee replacement at some point in the future. [R. at

38.]

After the ALJ noted Mr. Dante’s use of a cane, Mr.

Dante testified that sometimes he requires a cane to walk

around. [R. at 38.] He testified that during inclement

weather he uses a cane to prevent from falling, but that

during warmer weather he usually does not need one. Id. 

Mr. Dante also testified that he was 6’1’’ tall, and weighed

255 pounds. [R. at 40.]

4
Mr. Dante testified that he could sit for fifteen

minutes at a time before needing a standing break, as his

ankle and knee start to stiffen. [R. at 40.] He also

testified that his Attention Deficit Hyperactivity Disorder

(ADHD) caused him to become jumpy after sitting for fifteen

minutes. Id. 

Mr. Dante testified that, although he took Ritalin as a

child for his ADHD, he was not currently on Ritalin, and

instead wanted to control it without medication because he

feared its side effects, namely having mood swings. [R. at

41.] Mr. Dante testified that his ADHD did not interfere

with his job at Kraft, and, in fact, his job was helpful for

dealing with his ADHD. Id. He testified that his job with

Kraft entailed performing different tasks throughout the

workday and that he interacted with others, which made him

feel more flexible. Id. He testified to seeing a doctor

about his ADHD. [R. at 43.] The ALJ questioned him about

whether or not the doctor that evaluated him for his ADHD

was a pediatrician or not. Id. Mr. Dante testified that

the doctor treated infants, adolescents, and adults. Id. 

After the ALJ asked why he chose this particular doctor, he

testified that an associate, who had a good experience with

the doctor, referred him. Id. 

5
With regard to his living situation, Mr. Dante

testified that he lives with his wife and his daughter, who

turned fifteen the day of the hearing. [R. at 44.] He

testified that he drives, but that it can be problematic at

times due to the loading brace he wears on his right knee,

which irritates him while driving. As a result, he only

drives short distances. Id. Mr. Dante testified that,

after about twenty to twenty-five minutes of driving, his

knee will begin to hurt. [R. at 45.] He testified that the

time it takes for his knee to become irritated depends on

the driving conditions, such as stop and go traffic. Id. 

Mr. Dante testified that his medication causes him to

feel drowsy, forcing him to take daily naps. [R. at 45.] 

He also testified that Dr. Hallman increased his dosage

during the winter months because that is when his pain is

worse. Id. Mr. Dante testified that he experienced an

increase in drowsiness along with the increase in his

dosage. Id. 

Mr. Dante testified that his typical day begins with

him waking up and having breakfast with his wife; after

breakfast, he performs exercises for his knee and ankle in

order to loosen them up. [R. at 46.] He testified that he

and his wife take turns taking their daughter to school; on

his designated days he drops her off, grabs coffee, and then

6
goes to Chicago Ridge Mall to perform his exercise program. 

Id. He testified that Dr. Hallman created his exercise

program, and it consists of walking increments which help

him to maintain mobility and keep his cholesterol level

down. Id. He testified that, after performing his exercise

program at the mall, he usually visits the local library. 

[R. at 47.] While at the library, he testified that he

visits with some of the employees and reads. Id. Mr. Dante

testified that, upon leaving the library, he returns home,

takes his pain medication, and takes a nap. Id. On the

days he transports his daughter, he testified that, after he

picks her up from school, he returns home. Id. 

Mr. Dante testified that he takes pain medication four

times a day; taking a nap afterwards each time. [R. at 47.] 

He also testified that during his naps he must elevate his

knee, in order to make sure he does not suffer from edema

swelling at his ankle. Id. He testified that he elevates

his knee three to four times a day for thirty to forty

minutes, using a special pillow that he purchased. [R. at

48.] 

Mr. Dante testified that the only chore he performs is

occasional light dusting around the house. [R. at 48.] He

testified that he collects antique toys as a hobby. Id. He

testified that he enjoys reading books on antique toys, his

7
daughter searches eBay for toys for him to purchase, and his

friends bring him items from toy shows. [R. at 48-49.] 

Mr. Dante testified that he was in pain during the

hearing, which he rated as seven and a half to eight out of

ten. [R. at 49.] He testified that the pain felt like a

shooting pain in his ankle and a sharp pain in his knee. 

[R. at 49-50.] He testified that he experienced pain every

day, but that his medication did offer some assistance. [R.

at 50.] Mr. Dante testified to being able to carry and lift

an item weighing from ten to twenty pounds. Id. He

testified that he can sit for fifteen minutes before needing

to stretch, which he stated takes five minutes. Id. He can

walk distances measuring no more than one block. Id. He

also testified to being able to stand for only fifteen

minutes. [R. at 51.] 

Mr. Dante testified that he struggles with his memory,

often times forgetting things because his mind is racing. 

[R. at 51.] He testified to struggling with memory issues

his entire life, which he believes he inherited from his

mother. Id. In addition to ADHD, he testified to having

organization compulsions. [R. at 53.]

During Mr. Dante’s examination by his counsel, he

testified that he has trouble sleeping through the night;

waking up twice a night because of the pounding pain in his

8
ankle and knee. [R. at 55.] The ALJ asked counsel if the

doctor’s recommendation that Mr. Dante elevate his knee and

ankle appeared in the medical record. Id. Mr. Dante’s

counsel responded that he did not recall where it appeared

in the record. [R. at 56.] 

Mr. Dante also provided testimony on a finger injury he

sustained when he tripped down the stairs after his knee

began causing him problems. [R. at 56.] He also testified

to having difficulties using stairs and lacking the ability

to bend or stoop down. [R. at 58.] Mr. Dante testified to

taking Mobic, 15mg an anti-inflammatory, and Tramadol, 15mg,

four times a day. Id.

II. Vocational Expert’s Hearing Testimony

The ALJ also heard testimony from Lee Knutsen, a

Vocational Expert (“VE”) who reviewed Mr. Dante’s workrecord and heard Mr. Dante’s testimony before the ALJ. The

VE testified that Mr. Dante’s previous job was heavy and

semi-skilled with a SVP of 3. [R. at 59.] The ALJ then

proceeded to pose different hypotheticals to the VE based on

an individual with the same age, education, and vocational

experience as Mr. Dante. [R. at 60.] The ALJ asked the VE

whether such an individual could work jobs requiring light

exertion with the following non-exertion limitations: they

cannot climb ladders, rope, or scaffolds; and can

9
occasionally climb ramps, stairs, stoop, kneel, crouch, or

crawl, would still be able to perform Mr. Dante’s previous

job. Id. The VE testified that such an individual would

not be able to perform Mr. Dante’s previous job. Id. 

However, the VE testified that this individual could work as

a light, unskilled assembler, adding that there are over

19,000 positions of this type of work in the Chicago area. 

[R. at 61.] The VE testified that this particular

individual could also work as a machine tender and that

there are 15,700 machine tender jobs in the Chicago area. 

Id. 

The ALJ continued with the first hypothetical, adding

the necessity that the individual would need to be able to

stand and stretch approximately every 15 minutes, for a

period of one minute or less. [R. at 61.] The VE testified

that an individual with these limitations would be able to

perform some sedentary jobs, including that of a sedentary

cashier. [R. at 62.] The ALJ then asked if an individual,

who can sit for eight hours, stand for five hours, and walk

for four hours, walking occasionally for moderate distances,

with the following limitations: the individual can

occasionally bend, stoop, crawl, or climb stairs, maintain

minimal balance, and the individual cannot squat, crouch, or

kneel, nor operate foot controls with his left foot, would

10
be able to perform Mr. Dante’s previous job. [R. at 62-63.] 

The VE testified that this individual would not be able to

perform Mr. Dante’s previous job, but that he would be able

to perform the light level jobs, which he mentioned

previously. [R. at 63.]

The last hypothetical posed by the ALJ considered

whether an individual with the previously mentioned

limitations, requiring sedentary work, along with the

following requirements: the ability to perform a variety of

tasks and minimal writing, would be able to perform any job. 

[R. at 63.] The VE testified that this individual could

perform a sedentary job as an order clerk, a sedentary

cashier, or a surveillance system monitor, although these

jobs contain a lot of repetition. [R. at 64.] The VE then

testified that there is some variety within the cashier job,

such as interacting with various people and handling

different forms of payment. [R. at 65.] 

The VE testified that he did not think there were any

jobs that would allow a person to be off task for thirty

minutes at a time, twice a day. [R. at 66.] If a person

completely lacked the ability to stoop at all, the VE

compared this inflexibility to being in a body cast, and

testified that this individual would also not be employable

in any job. Id.

11
III. MEDICAL RECORDS

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

the ALJ also considered Mr. Dante’s relevant medical records

from his treating doctors.

Knee and Ankle Issues

Dr. Hallman, an orthopedic surgeon, first

evaluated Mr. Dante on March 6, 2003 for problems associated

with his right knee. [R. at 339.] Dr. Hallman diagnosed

him with a torn medial meniscus, and changes consistent with

chondromalacia of the right knee. Id. Mr. Dante had

arthroscopic surgery and an excision of a synovial cyst at

his right knee on April 28, 2003. Id. After the surgery,

he began receiving medical and injection therapy for

arthritis in his right knee. Id. Mr. Dante later returned

to work without complications from his knee disorders. Id. 

On April 26, 2004, Plaintiff visited Dr. Hallman for

pain in his feet. [R. at 339.] He was diagnosed with

calcaneal spurs in both of his feet, with the condition

being more severe in his left foot. Id. He was provided

with heel pads and an injection for the fasciitis and spur

on his left foot. Id. Mr. Dante was also taking Bextra

for inflammatory joint disorders. Id. His follow-up

examination on May 4th, 2004 revealed complete improvement

12
of his right foot and about 80% improvement of his left. 

Id. 

On November 12, 2004, Mr. Dante visited Dr. Hallman for

increasing pain in his right foot and ankle area. [R. at

340.] He was prescribed an anti-inflammatory medication and

the doctor provided him with activity recommendations. Id. 

Mr. Dante allegedly tripped over a pallet at work on

January 26, 2005, causing him to strike the pallet and the

concrete floor with his right knee. [R. at 340.] On

January 27, 2005, he visited Dr. Hallman, who identified

changes suggesting a contusion and a probable hairline

fracture of the right knee. Id. Dr. Hallman prescribed

analgesics to control the pain. Id. Mr. Dante suffered

articular cartilage loss along the mediofemoral condyle of

the right knee. Id. On February 16, 2005, his cast therapy

was discontinued and physical therapy was prescribed. Id.

On March 3, 2005, during his visit with Dr. Hallman,

Mr. Dante reported that he could no longer perform his

regular work activities. [R. at 340.] The exam revealed

changes consistent with resolution of a contusion type

injury to his right knee. Id. Dr. Hallman prescribed workhardening and physical therapy. Id. Mr. Dante’s right knee

disorder healed satisfactorily, and he returned to work on

April 4, 2005. Id. 

13
On May 6, 2005, Mr. Dante returned to Dr. Hallman,

complaining of pain, redness and swelling of his left ankle. 

[R. at 340.] He had been on a weight management program and

he was working out regularly. Id. The active ranges of

both ankles were determined regular, but he was diagnosed as

having a possible gout-type disorder and prescribed Indocin. 

Id. When he returned on May 20, 2005, he reported that his

symptoms had improved and he was prescribed orthotic

supports only. Id.

On June 3, 2005, Mr. Dante visited Dr. Hallman,

complaining that he was experiencing persistent pain in his

left ankle, and that the pain grew worse with walking and

standing activities. [R. at 341.] He also reported that he

had stumbled over some pallets while working two weeks prior

to the appointment, and he believed that he had turned or

twisted his ankle. Id. The exam revealed that he had a

small calcaneal spur. Id. Due to the increased symptoms,

Dr. Hallman felt that additional support for his ankle was

appropriate. Id. Mr. Dante was fitted with an elastic

support and an ankle stirrup brace was applied. Id. 

Two weeks after the June 3rd appointment, Mr. Dante

complained of pounding pain in his left ankle and foot area,

despite the fact that he had been on vacation. [R. at 341.] 

He was given injection therapy at a trigger point in his

14
left ankle near the posterior tibialis region. Id. He had

a follow-up appointment on July 1, 2005, which revealed that

the injection did help him substantially, and the orthotic

was working, as well. Id. 

On September 29, 2005, Mr. Dante reported to Dr.

Hallman that he had twisted his left ankle again two weeks

before his appointment, and that his left foot and ankle

pained him. [R. at 341.] Dr. Hallman felt that he had

post-traumatic synovitis at his left ankle as a result of a

sprain injury, and he advised Mr. Dante to moderate his

activities. Id. Mr. Dante was also prescribed a nonsteroid anti-inflammatory drug, Mobic. Id. Mobic did not

provide him with much symptom relief, so during his followup appointment he was prescribed a Medrol Dose Pak. Id. 

The Medrol provided him with symptom relief, but the

symptoms returned after the medication was completed. Id. 

On November 18, 2005, Mr. Dante’s exam revealed

swelling at the posteromedial aspect of his left ankle,

though the mobility of his left ankle remained favorable. 

[R. at 342.] He returned to Dr. Hallman on December 12,

2005, and despite rest, orthotic supports, ankle braces,

analgesics, non-steroidal medications, as well as a steroid

anti-inflammatory medication, the symptoms in his left ankle

only improved briefly before they reoccurred. Id. An MR

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scan revealed a tear involving the mid-portion of the

posterior tibial tendon, as well as a tear of the tibial

talar ligament. Id. Mr. Dante decided to move forward with

a surgical treatment for his left ankle condition. Id. 

On January 20, 2006, Mr. Dante underwent reconstruction

of the posterior tibialis tendon, using a flexor tendon

transfer, at his left ankle region. [R. at 342.] He was

placed in a non-weight bearing short leg cast for

approximately six weeks, which facilitated favorable wound

healing. Id. He then began walking cast therapy, which was

continued for two weeks. Id. Soon after, the cast was

discontinued and he was prescribed physical therapy. Id. 

At this time, Mr. Dante was using a cane or a walker for

support, and he was supposed to use orthotic supports with

his shoes. Id. 

As Mr. Dante’s physical therapy progressed, he required

narcotic analgesics for pain control. [R. at 342.] He was

advised to take non-steroidal, anti-inflammatory drugs to

control the pain in his left foot and ankle during the

recovery process. Id. Additionally, Dr. Hallman provided

Mr. Dante with an acid inhibitor to minimize any potential

stomach disturbances while he was taking the medications. 

Id. 

16
Five months post-surgical treatment, on June 16, 2006,

Mr. Dante continued with outpatient and home physical

therapy exercises. [R. at 342.] He continued using a cane

when walking around outside of his home. Id. He also used

support hose and orthotics regularly. Id. During his visit

he complained of spasms in his left leg while being active. 

Id. The exam revealed a substantial antalgic gait. Id. 

Mr. Dante did not believe that he was ready to

transition to sedentary work duties at his job, and he

continued with physical therapy. [R. at 342.] From August

16, 2006 through October 30, 2006, Mr. Dante completed a

work-hardening program. [R. at 343.] He then began

gradual progression with work activities. Id. Upon his

completion of the work-hardening program, his therapist

believed that he had significantly improved, though he was

still functionally impaired and experienced pain. Id. In

the therapist’s discharge summary it was reported that Mr.

Dante’s gait remained altered somewhat and that there were

limitations in his active range of motion in his left ankle. 

Id. He also reported that Mr. Dante’s pain was still a

factor, with him reporting his pain as 4-6 out of 10. Id. 

The discharge summary stated that Mr. Dante had the basic

abilities to return to work, and with determination he

should be able to refine his skills on the job. Id. 

17
During a visit with Dr. Hallman on December 15, 2006,

Mr. Dante requested a note releasing him to full work

duties. [R. at 343.] He continued to use an ankle support

for his left lower extremity, and he still needed a

prescription for the pain medication, Ultram. Id. The

range of motion in his left ankle was also diminished. Id. 

During the visit, Mr. Dante received a release for full work

duties, with an 8-hour restriction. Id. 

After returning to full work duties, Mr. Dante

continued to require analgesic and anti-inflammatory

medications. [R. at 343.] He also required the

replacement of a fractured and failed orthotic device. Id. 

He had been progressing in a weight loss program, and by

March of 2007 he had lost 40 pounds. Id. It was around

that time that he began to report that, by the end of his

workday, he experienced significant pain in his left foot. 

Id. In spite of his diligent rehab efforts, it was

determined that he could not tolerate the normal demands of

his job. Id. Dr. Hallman recommended a functional capacity

evaluation. Id. 

On April 17, 2007, Mr. Dante had a functional capacity

evaluation. [R. at 343.] According to the job analysis

profile, his current job fell into the medium-heavy to heavy

18
physical demand level, though his abilities were found to

fall below that level of functional capacity. Id. 

Dr. Hallman saw Mr. Dante on June 4, 2007. [R. at

344.] During the appointment, the doctor advised him not to

return to his job at Kraft. Id. Dr. Hallman believed his

impairments and limitations were permanent, and suggested

vocational retraining consistent with his functional

capacity evaluation. Id. 

During the December 1, 2010 visit, Dr. Hallman noted

that Mr. Dante continued to have weakness in his left ankle,

and that he had advanced osteoarthritis in his right knee. 

[R. at 433.] On December 13, 2010, Dr. Hallman also noted

that he believed it was medically necessary for Mr. Dante to

elevate his left ankle and right knee at least three times

periodically throughout the day, in order to prevent

swelling. [R. at 434.] 

On April 15, 2009, Mr. Dante had a consultative visit

with Dr. Patil, for the purpose of providing information to

the Bureau of Disability Determination Service. [R. at

381.] The X-rays taken of Mr. Dante’s left ankle during

his appointment revealed no evidence of fracture or

dislocation. [R. at 384.] Mr. Dante’s ankle motion was

normal, however, the X-ray revealed a small plantar

calcaneal spur. Id. Dr. Patil noted that Mr. Dante’s

19
speech was moderately pressured and loud, and that he

demonstrated flight of ideas. [R. at 382.] He also

observed that Mr. Dante seemed mildly anxious and that he

provided circumferential answers to his questions. Id. 

ADHD Disorder

On July 6, 2010, Mr. Dante saw Dr. Delach. [R. at

254.] Dr. Delach diagnosed him with attention hyperactivity

deficit disorder (ADHD), as well as chronic lateness,

forgetfulness, and difficulty in following directions. Id. 

IV. THE ALJ’S DECISION

The ALJ issued her decision on December 23, 2010,

finding that Mr. Dante had not been under a disability

within the meaning of the Social Security Act from June 4,

2007, through the date of her decision [R. at 24.] The ALJ

applied the five-step sequential analysis as required by the

Act, under 20 C.F.R. 404.1520(a).

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

engaged in substantial gainful activity since June 4, 2007,

the alleged onset date. [R. at 16.]

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

following severe impairments: residual weakness of his right

ankle following an injury, arthritis in his knee, obesity,

and attention deficit hyperactivity disorder. [R. at 16.]

20
At step three, the ALJ found that Mr. Dante did not

have an impairment or combination of impairments that met or

medically equaled one of the listed impairments from 20

C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 

404.1520(d), 404.1525 and 404.1526). [R. at 16.] The ALJ

explained that Mr. Dante’s severe impairments, considered

individually or amalgamated, do not meet the requirements of

any listing, because there is no evidence of an inability to

ambulate effectively as defined by the listing, as a result

of these impairments. [R. at 16-17.] The ALJ further

explained that Mr. Dante’s mental impairment does not

satisfy either the “paragraph B” criteria nor the “paragraph

C” criteria, meaning it does not meet or medically equal the

criteria of listing 12.02. [R. at 17.] 

At step four, the ALJ concluded that Mr. Dante’s

residual functional capacity would allow him to successfully

adjust to performing sedentary work as defined in 20 C.F.R. 

404.1567(a). [R. at 18.] The ALJ found that Mr. Dante

required a position in which he would not have to climb

ladders, ropes, or scaffolds; would only have to

occasionally climb ramps or stairs, stoop, kneel, crouch, or

crawl; allow him to stand and stretch approximately every 15

minutes for a period of 1 minute or less; provide him with a

21
variety of tasks; and require him to perform no more than

occasional writing. [R. at 18.]

In making her decision, the ALJ noted that she

considered all of Mr. Dante’s symptoms and the extent to

which these symptoms could reasonably be accepted as

consistent with objective medical evidence and other

evidence, as is required under 20 C.F.R. 404.1529 and SSR’s

96-4p and 96-7p. [R. at 18.] Additionally, the ALJ

considered opinion evidence in accordance with the

requirements of 20 C.F.R. 404. 1527 and SSR’s 96-2p, 96-5p,

96-6p and 06-3p. Id. The ALJ then summarized Mr. Dante’s

testimony and stated:

After careful consideration of the evidence, I find

that the claimant’s medically determinable impairments

could reasonably be expected to cause the alleged

symptoms; however, the claimant’s statements concerning

the intensity, persistence and limiting effects of

these symptoms are not credible to the extent they are

inconsistent with the above residual functional

capacity assessment. 

[R. at 19.]

Next, the ALJ summarized all of Mr. Dante’s medical records. 

[R. at 19-20.] The ALJ concluded his review with the

following statement:

In sum, the above residual functional capacity

assessment is supported by the claimant’s treatment

records, which indicate that the claimant experiences

some weakness and limitation of motion due to his

physical impairments; the claimant’s reported

activities; and the opinion of the state agency’s

medical consultants. [R. at 23.]

22
The ALJ concluded by finding that Mr. Dante had the residual

functional capacity to perform less than a full range of

sedentary work. Id. 

 At step five, after considering the testimony of the VE

and the results of his residual functional capacity

evaluation, the ALJ found that Mr. Dante was unable to

perform past relevant work, under 20 C.F.R. 404.1565. [R. 

at 23.] The ALJ then determined that the transferability of

job skills was not material to the determination of

disability, because the use of the Medical-Vocational Rules

(SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2)

supported the conclusion that the claimant is “not

disabled,” despite his transferable job skills. Id. 

Lastly, after reviewing the testimony of the VE, the

ALJ found that, based on Mr. Dante’s age, education, work

experience, and residual functional capacity, he is capable

of making a successful adjustment to work that exists in

significant numbers in the national economy. [R. at 24.]

Therefore, the ALJ determined a finding of “not disabled”

appropriate under the framework of the above-cited rules,

and that Mr. Dante was not entitled to benefits. [R. at

24.]

STANDARD OF DISABILITY ADJUDICATION

23
In order to be entitled to benefits under the Social

Security Act, a claimant must be evaluated under a five-step

inquiry and found to be “disabled.” 20 C.F.R. § 404.1520. 

Step one requires the ALJ to determine whether the claimant

is employed. Under step two, the ALJ must determine whether

the claimant has a severe impairment as defined by the

Social Security Administration. At step three, the ALJ

determines whether the impairment meets or is medically

equal to one of the listed impairments in 20 C.F.R. Part

404, Subpart P, Appendix 1. During step four, the ALJ

evaluates the claimant’s “Residual Functional Capacity”

(“RFC”) and determines whether he can perform his past

relevant work. Finally, during step five, the ALJ determines

whether the claimant has the ability to perform any other

work that exists in the national economy.

STANDARD OF REVIEW

When addressing an appeal of an ALJ’s decision, a

district court must affirm the decision if it is supported

by substantial evidence and free from legal error. 42

U.S.C. § 405(g); Steele v. Barnhart, 290 F.3d 936, 940 (7th

Cir. 2002). When determining whether the evidence is

substantial, it must be “more than a mere scintilla.” 

Richardson v. Perales, 402 U.S. 389, 401 (1971). It is

“such relevant evidence as a reasonable mind might accept as

24
adequate to support a conclusion.” Id. When reviewing the

ALJ’s decision for substantial evidence, the court cannot

“displace the ALJ’s judgment by reconsidering facts or

evidence or making [a] credibility determination.” Skinner

v. Astrue, 478 F.3d 835 (7th Cir. 2007). Should there be

conflicting evidence that leads reasonable minds to differ

in opinion, it is solely the ALJ’s responsibility to

determine whether the claimant is disabled, not the district

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

Even though an ALJ is not required to address every piece of

evidence in the record, she must furnish her analysis

through building a logical and accurate bridge between the

evidence and her conclusions, thus allowing a reviewing

court to conduct a meaningful review of the ultimate

findings of the Social Security Administration. Sims v.

Barnhart, 309 F.3d 424, 429 (7th Cir. 2002); Dixon v.

Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). A court

must affirm the ALJ’s decision if there is substantial

evidence supporting her decision, unless the ALJ does not

articulate the grounds for her decision in such a way that

allows a meaningful review. Sims, 309 F.3d at 429. 

ANALYSIS

Mr. Dante raises several objections to the ALJ’s

decision; the Court will discuss each in turn. The claimant

25
argues that: 1) the Administrative Law Judge erred when she

rejected Dr. Hallman’s medical opinion that Mr. Dante needed

to elevate his legs to prevent ankle and knee swelling, 2)

the ALJ improperly determined that Mr. Dante experienced no

side effects from his medication because of his failure to

report them to his physicians, 3) the ALJ failed to explain

the support behind her conclusion that a one minute break to

stand was an appropriate accommodation, 4) the ALJ failed to

resolve conflicts in the evidence presented by the

vocational expert, 5) the ALJ erred when she failed to order

a consultative psychiatric examination upon determining that

Mr. Dante suffered from a severe mental impairment, and 6)

the ALJ improperly evaluated Mr. Dante’s credibility. 

A. WHETHER THE ALJ ERRED WHEN SHE REJECTED DR.

HALLMAN’S MEDICAL OPINION ON MR. DANTE’S NEED TO

ELEVATE HIS LEGS TO PREVENT SWELLING.

Mr. Dante first argues that the ALJ erred by rejecting

his treating physician, Dr. Bruce W. Hallman’s, opinion on

Mr. Dante’s need to elevate his legs. Pl.’s brief at 7. 

Mr. Dante cites several Seventh Circuit cases to support his

argument that ALJs cannot ignore evidence that supports the

existence of a limitation, and that any medical judgments

made by the ALJ must be substantiated by evidence. Pl.’s

brief at 8. 

26
The Commissioner argues that the ALJ reasonably

rejected Dr. Hallman’s opinion because the medical records

made no mention of Mr. Dante’s need to elevate his legs. 

Commissioner’s Motion for Summary Judgment, p. 7. Defendant

asserts that, since no mention of Dr. Hallman’s opinion on

elevation was made in his own treatment notes,

inconsistencies exist without such evidentiary support. Id.

In order for the ALJ to reach a medical conclusion

which contradicts that of Dr. Hallman’s opinion, she must

use medical evidence, rather than her own opinion, to

support her conclusion. Clifford v. Apfel, 227 F.3d 863,

872 (7th Cir. 2000). The medical evidence the ALJ used to

support her conclusion is the absence of Dr. Hallman’s

recommendation anywhere else in Mr. Dante’s medical records,

as well as his most recent medical records, which state that

he presented with no swelling. [R. at 21.]

Mr. Dante’s medical records contain no recommendation

for him to elevate his legs three times a day, other than

the letter written by Dr. Hallman in December 2010. Pl.’s

brief at 7. Although no other physicians recorded this

recommendation in their notes, and even Dr. Hallman failed

to include the recommendation in his treatment notes, the

absence of the statement in the medical records is only

substantial proof of the fact that the recommendation was

27
never recorded. The only written document regarding Mr.

Dante’s need to elevate his legs is the letter written by

Dr. Hallman, and without medical evidence that contradicts

this finding, the ALJ cannot conclude that this opinion is

incorrect.

Lastly, the ALJ used Mr. Dante’s most recent medical

records, which state that he had no swelling, as further

evidence that the elevation recommendation is unnecessary. 

The fact that Mr. Dante presented with no swelling during

this appointment could be attributed to many different

factors. The ALJ fails to articulate how this incident is

proof of him not needing to elevate his legs, as Dr. Hallman

had advised. Because Mr. Dante did not experience swelling

during the appointment does not mean that he does not

experience any swelling at all, or further, that elevating

his legs does not mitigate the swelling. 

The ALJ failed to provide a bridge from the medical

evidence to her conclusion. Therefore, the Court cannot

conduct a meaningful review of the ALJ’s finding that the

Plaintiff does not need to elevate his legs. 

B. WHETHER THE ALJ IMPROPERLY DETERMINED THAT MR.DANTE

EXPERIENCED NO SIDE EFFECTS FROM HIS MEDICATION BECAUSE

OF HIS FAILURE TO REPORT THEM TO HIS PHYSICIANS. 

Although there was no evidence that Mr. Dante reported

any side effects to his physicians, he contends that the ALJ

28
improperly determined that he did not experience drowsiness

as a side effect of his medications. Pl.’s brief at 9. The

Commissioner argues that the ALJ rejected Mr. Dante’s

allegation that his pain medication causes drowsiness

because his medical records indicated that he had not

reported this to his physicians, and, conversely, he

actually tolerated his medications quite well. 

Commissioner’s Motion for Summary Judgment, p. 4.

 An ALJ cannot conclude that a claimant’s medication

produces no side effects based on a claimant’s failure to

report the side effects to their physician. Terry v.

Astrue, 580 F. 3d 471, 477 (7th Cir. 2009). Mr. Dante

failed to inform his physicians that his medication was

causing drowsiness. As a result of his failure to report

the side effect, there is no medical record to substantiate

his allegation. Although there is no medical record that

Mr. Dante reported any side effects, the medical records do

not prove that he never experienced any side effects, only

that he failed to report them. The ALJ’s conclusion that

Mr. Dante did not experience drowsiness must be based on

medical evidence that proves he did not, or testimony from

the claimant that contradicts his assertion that he did

experience drowsiness. The Court finds that the record

contains neither. 

29
The ALJ also used the statement from Mr. Dante’s

medical records that he tolerated his medications well, to

support her conclusion. Commissioner’s Motion for Summary

Judgment, p. 4. It is reasonable to assume that Mr.

Dante’s physicians were aware that he no longer worked and

spent most of his time at home. Because Mr. Dante spent

most of his time at home, it is likely that his physicians

did not perceive drowsiness to be a hindrance to his daily

activities. Based on his situation, it is possible that his

physicians did determine that he tolerated his medication

well, even while he experienced drowsiness. 

There is not enough evidence supporting the ALJ’s

determination that Mr. Dante experienced no side effects,

therefore, the Court is unable to provide meaningful review

of this issue. 

C. WHETHER THE ALJ FAILED TO EXPLAIN THE SUPPORT

BEHIND HER CONCLUSION THAT A ONE-MINUTE BREAK TO STAND

WAS AN APPROPRIATE ACCOMODATION.

Mr. Dante claims that the ALJ failed to provide an

explanation for her conclusion that he needed only a oneminute or less break to stand. Pl.’s brief at 10. Mr.

Dante relies on a Seventh Circuit case, which asserts that

when an ALJ assesses a claimant’s residual functional

capacity (RFC), she must explain how the evidence supports

30
her conclusions. Briscoe ex rel. Taylor v. Barnhart, 425

F.3d 345, 352 (7th Cir. 2005). Id. 

The Commissioner argues that the ALJ found that there

was minimal objective evidence for his limitation on

sitting, but she accommodated Mr. Dante’s request by

including the recommendation that he needs one minute to

stand after sitting for 15 minutes. Commissioner’s Motion

for Summary Judgment, p. 5. The Court agrees. 

The ALJ considered Mr. Dante’s request for a one-minute

break to stand during the hearing as an example of the kind

of break he would need after sitting for extended periods of

time during his daily life. The ALJ determined that Mr.

Dante’s medical record contained enough information to

warrant a one minute standing break and that such a request

was credible. Therefore, the ALJ’s conclusion that a oneminute break to stand was an adequate accommodation was

based on Mr. Dante’s credibility, the ALJ’s perception of

him during the hearing, and by the support found in the

medical records. 

The Court finds that the ALJ did not err in including

the recommendation that he needs one minute to stand after

sitting for 15 minutes, and that there is enough evidence

supporting the ALJ’s conclusion to substantiate such an

accommodation. 

31
D. WHETHER THE ALJ FAILED TO RESOLVE CONFLICTS IN THE

EVIDENCE PRESENTED BY THE VOCATIONAL EXPERT.

Mr. Dante argues that the ALJ failed to resolve

conflicts in the VE’s testimony. Pl.’s brief at 11. On the

contrary, the Commissioner argues that the ALJ resolved any

possible conflicts in the VE’s testimony by conducting

further examination and obtaining further explanation. 

Commissioner’s Motion for Summary Judgment, p. 5.

During Mr. Dante’s hearing, the following exchange

occurred between the VE and the judge, while the VE

testified:

ALJ: I’m going to go with the hypothetical number two,

that was the sedentary hypothetical with the – and all

of the non-exertionals of the first – second

hypothetical with the following addition: The

individual would need to have a job that enables [them]

to perform a variety of tasks or requires a variety of

tasks, let’s say. And also would require minimal

writing by him. No problems with the reading, but

minimal writing, say no more than occasional to clarify

that a little bit better. Do you need any

clarification on that hypothetical?

VE: No, I don’t –

ALJ: Okay. So such an individual would still be unable

to perform past work, would there be any other work?

VE: Let’s see. I think per the sedentary job, I think

he could still perform as order clerk, the sedentary

cashier, and the surveillance system monitor . . . I

need to note that these are all unskilled jobs. 

Simple, unskilled jobs so they’re not known for

variety. 

ALJ: Okay.

VE: There’s a lot of repetition involved. I think for

more variety of tasks, you probably would have to go

for some sort of skilled or semi-skilled. 

ALJ: But the cashiers and the food and beverage are

still working with different people –

32
VE: There is.

ALJ: Different problem that are going on with different

– making different kinds of change, using different

credit cards, there’s some –

VE: There’s still variety, it’s –-

ALJ: Right.

VE: It’s a routine, but probably the cashier and the

order clerk – I think I’ll throw out the surveillance

system monitor. I think –

ALJ: Okay.

VE: Maybe – well, maybe a sedentary packer.

ALJ: Okay.

VE: Might – well, I guess all of them. You can leave

the surveillance system monitor in, they’re all going

to have a routine to ‘em, but there are still different

things to do in the job. [R. at 65]

The VE originally testified that all of the sedentary

jobs that were a fit for an individual with Mr. Dante’s RFC,

were unskilled, therefore they were not known for variety. 

The ALJ then proceeded to ask the VE a series of questions,

which allowed him to further explain the variety of duties

one would engage in as it pertains to each job. 

The ALJ’s line of questioning clarified and resolved

any possible inconsistencies or initial conflicts the VE’s

testimony provided. Therefore, the Court finds that no

conflict was left unresolved by the vocational expert’s

testimony. 

E. WHETHER THE ALJ ERRED WHEN SHE FAILED TO ORDER A

CONSULTATIVE PSYCHTRIATIC EXAMINATION AFTER DETERMINING

THAT MR. DANTE SUFFERED FROM A SEVERE MENTAL

IMPAIRMENT. 

Mr. Dante argues that the ALJ erred when she assessed

his mental impairment without a medical opinion. Pl.’s

33
brief at 14. Mr. Dante asserts that, although the State

agency physiatrist, who acted on behalf of the

administration, concluded that his ADD and Dyslexia were not

severe, the ALJ erred by not ordering further mental

examination. Pl.’s brief at 14. 

The Commissioner contends that the ALJ relied on the

assessment provided by the state agency reviewer, Dr. Glen

Pittman, Mr. Dante’s work history, and his testimony to

determine that a limitation should be included in his RFC,

for his mental impairments. Commissioner’s Motion for

Summary Judgment, p. 8. 

An ALJ must build a logical bridge from the evidence to

her conclusion. Young v. Barnhart, 362 F.3d 995, 1002 (7th

Cir. 2004). When Dr. Pitman concluded that Mr. Dante’s

history of attention-deficit disorder and alleged dyslexia

were non-severe impairments, there was nothing further in

the medical records to suggest that the existence of these

impairments was anything more. [R. at 22.] After Mr.

Dante’s consultation with Dr. Pitman, he was diagnosed with

ADHD. Id. 

Upon considering Dr. Pitman’s conclusion, Mr. Dante’s

ADHD diagnosis, his work history, and his testimony, the ALJ

reached the conclusion that his ADHD was indeed a severe

34
impairment. The ALJ used substantial evidence to reach her

conclusion on the severity of Mr. Dante’s ADHD.

The Court agrees that the ALJ’s analysis leads to a

reasonable conclusion on the diagnoses and inclusion of ADHD

in Mr. Dante’s RFC. The Court also agrees that this

inclusion does not necessitate further mental examination.

F. WHETHER THE ALJ IMPROPERLY EVALUATED MR. DANTE’S

CREDIBILITY.

 

Lastly, Mr. Dante claims that the ALJ’s use of

boilerplate language to assess his credibility, without

further explanation, is inconsistent with Seventh Circuit

decisions. Pl.’s brief at 17. The Commissioner argues that

the Seventh Circuit never held that the mere use of

boilerplate language was grounds for reversal; rather it is

the use of boilerplate language without any further

explanation. Commissioner’s Motion for Summary Judgment, p.

8. 

In reference to Mr. Dante’s credibility, the ALJ states

in her decision that she finds his “... medically determinable

impairments could reasonably be expected to cause the

alleged symptoms; however, the claimant’s statements

concerning the intensity, persistence and limiting effects

of these symptoms are not credible to the extent they are

35
inconsistent with the above residual functional capacity

assessment.” [R. at 19.]

Although the ALJ may have used boilerplate language,

the Court finds that she, nonetheless, provided explanation

and sufficiently articulated the reasoning leading to her

credibility findings. Therefore, the Court finds that the

ALJ did not err in her evaluation of the Plaintiff’s

credibility. Because it is apparent that the ALJ discounted

Plaintiff’s drowsiness, however, on remand the ALJ should

attempt to further develop Mr. Dante’s testimony concerning

the side effects his mandatory medications create, and reassess whether those statements are consistent or not with

other evidence in the record. Additionally, the ALJ should

also reconsider whether Dr. Hallman’s recommendation for

Plaintiff to elevate his legs materially affects his ability

to perform. 

Conclusion

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

Dante’s motion for summary judgment [#14] and denies the

Commissioner’s motion for summary judgment. The case is

remanded to the Commissioner for further proceedings

consistent with this Memorandum Opinion and Order. 

Date: August 16, 2013

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E N T E R

E D:

 

 

 ______________________________

MAGISTRATE JUDGE ARLANDER KEYS 

UNITED STATES DISTRICT COURT 

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