UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

HECTOR G. IBARRA-MONTUFAR, ) 

 ) No. 12 CV 736 

Plaintiff, ) 

v. ) Magistrate Judge Young B. Kim 

 ) 

CAROLYN W. COLVIN, Acting ) 

Commissioner, Social Security ) 

Administration,1 ) 

 ) May 30, 2013 

Defendant. ) 

MEMORANDUM OPINION and ORDER 

In April 2009 Plaintiff Hector G. Ibarra-Montufar (“Ibarra-Montufar”) 

applied for Disability Insurance Benefits (“DIB”) under sections 216(i) and 223(d) of 

the Social Security Act. The Commissioner of the Social Security Administration 

denied his application for benefits. Ibarra-Montufar now challenges the denial and 

asks the court to either reverse this decision or remand the case for further 

proceedings. For the following reasons, Ibarra-Montufar’s motion is granted to the 

extent it seeks a remand: 

Procedural History 

 Ibarra-Montufar applied for DIB on April 28, 2009, claiming that he became 

disabled on January 3, 2008, as a result of degenerative disc disease. 

(Administrative Record (“A.R.”) 102-03.) The Commissioner denied IbarraMontufar’s claims on July 30, 2009, (id. at 54), and then again on reconsideration on 

 

1 Pursuant to Federal Rule of Civil Procedure 25(d), Carolyn W. Colvin—who 

became the Acting Commissioner of Social Security on February 14, 2013—is 

automatically substituted as the named defendant. 

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October 22, 2009, (id. at 60). Ibarra-Montufar requested a hearing before an 

administrative law judge (“ALJ”), and this request was granted on June 7, 2010. 

(Id. at 66.) On July 28, 2010, the ALJ conducted a hearing, after which he 

concluded that Ibarra-Montufar is not disabled as defined by the Social Security 

Act. (Id. at 20-27.) The Appeals Council denied Ibarra-Montufar’s request for 

review on December 2, 2011, (id. at 1), thereby rendering the ALJ’s decision the 

final decision of the Commissioner, see Shauger v. Astrue, 675 F.3d 690, 695 (7th 

Cir. 2012). Ibarra-Montufar initiated this civil action for judicial review of the 

Commissioner’s final decision, see 42 U.S.C. § 405(g), and the parties have 

consented to the jurisdiction of this court, see 28 U.S.C. § 636(c). 

Facts 

Ibarra-Montufar, who is 47 years old, has struggled for over a decade with 

back pain and has undergone numerous pain-blocking injections and surgeries, 

including the implantation of a spinal cord stimulator. Prior to January 3, 2008, 

Ibarra-Montufar worked as a medical supplies warehouse picker, but he has not 

worked since that date. A native of Guatemala, he speaks limited English─he 

spoke Spanish at his last job. Ibarra-Montufar maintains that he is unable to work 

on account of his back pain, which requires him to lie down frequently and to 

constantly shift positions. Further, he claims that he suffers from leg numbness, 

poor concentration, and an inability to reach. At the hearing before the ALJ, 

Ibarra-Montufar presented both documentary and testimonial evidence in support 

of his claim. 

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A. Medical Evidence 

The medical record establishes that in April 2000, Ibarra-Montufar first 

sought medical treatment for lower back and leg pain from Dr. Elena Gragasin and 

Dr. Linda Dew. (A.R. 287.) Dr. Dew referred him for an MRI of his lumbar spine. 

(Id.) The findings from this test were “L4-L5 dis[c] desiccation with minimal diffuse 

posterior disk bulging,” and “L5-S1 dis[c] desiccation with minimal diffuse posterior 

dis[c] bulging.” (Id. at 287.) Repeat MRIs of his lumbar spine were performed in 

2003 after Ibarra-Montufar complained to Dr. James Adamson of low back pain 

radiating to both legs. (Id. at 284, 290.) Again, these MRIs found problems at L4-5 

and L5-S1, culminating with a diagnosis that included bulging, herniation, 

degenerative disc disease, and possible disc protrusion. (Id. at 282-84.) 

Dr. Adamson repeatedly administered epidural steroid injections but these failed to 

give Ibarra-Montufar prolonged relief. (Id. at 276.) 

 Ibarra-Montufar underwent bilateral L5-S1 spinal surgery in February 2004 

to repair the L5-S1 herniated disc. (Id. at 273-76.) Three months later, 

Dr. Adamson opined that Ibarra-Montufar could return to “light” work subject to a 

15-pound lifting restriction and the ability to take breaks. (Id. at 322.) IbarraMontufar did so but experienced severe back and thigh pain, necessitating another 

MRI of the lumbar spine. (Id. at 277.) This MRI showed numerous problems, 

including post-operative multi-level disc degeneration, bulging, degenerative 

spondylosis, facet arthropathy, post-operative fibrosis changes, and signal 

abnormalities involving L3-L4, L4-L5 and L5-S1. (Id. at 277-78.) 

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 Throughout 2005 Ibarra-Montufar continued to see Dr. Adamson and a pain 

specialist, Dr. Anatoly Arber, for ongoing pain in his lower back and thighs. (Id. at 

242.) After conservative therapies such as physical therapy and epidural injections 

failed to bring relief, Dr. Adamson felt that Ibarra-Montufar was no longer a good 

candidate for further “open” surgery and recommended instead the surgical 

implantation of a spinal cord stimulator. (Id. at 239-43.) Drs. Arber and Adamson 

performed this surgery in January 2006. (Id. at 239, 267.) A few weeks after 

surgery, Ibarra-Montufar visited Dr. Arber, who noted that “[t]he stimulator is 

providing excellent relief of his symptoms in the lower extremities. He has good 

strength and sensation in his lower extremities.” (Id. at 237.) Dr. Arber further 

stated that Ibarra-Montufar was free to return to work but should not lift anything 

or twist his lower back for six weeks. (Id.) 

 In December 2007 Dr. Arber helped Ibarra-Montufar fill out a Work 

Readiness Assessment Form for his employer, Medline Industries, Inc. (Id. at 384-

85.) Dr. Arber found Ibarra-Montufar able to return to work for a full 40-hour work 

week but restricted him to lifting, carrying, pushing, and pulling no more than 20-

40 pounds. (Id.) Ibarra-Montufar was also to limit repetitive movements, 

particularly reaching and stretching, to avoid displacing his stimulator electrodes. 

(Id. at 385.) Ibarra-Montufar’s Disability Certificate, signed by Dr. Arber and valid 

for two spans of time—between April and October 2007 and then again between 

December 2007 and June 2008—cleared him to return to “light” duty with a 40-

pound lifting, pushing, or pulling limit and no forklift driving. (Id. at 386-87.) At 

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Ibarra-Montufar’s employer’s request, Dr. Adamson filled out a Health Care 

Provider Certification with the objective of determining the full extent of IbarraMontufar’s disability. (Id. at 380.) Dr. Adamson listed Ibarra-Montufar’s diagnosis 

as “fail back syndrome” with “[left] lumbar radiculopathy” and rated his condition a 

five out of a possible six on the sliding “serious health condition” scale under the 

Family and Medical Leave Act. (Id.) The form lists Ibarra-Montufar’s prognosis as 

having “achieved maximum recovery” and identifies the following restrictions: up 

to 35 pounds lifting and pulling; no more than “seldom” (0-6%) climbing; no more 

than “occasional” (0-33%) lifting, pulling and bending/stooping; no more than 

“frequent” (34-66%) repetitive work; and no restriction on sitting. (Id. at 381.) 

 In April 2008 Ibarra-Montufar underwent a Functional Capacity Evaluation 

to determine his current abilities as compared to his employment demands. (Id. at 

466.) The evaluation was conducted by an occupational and a physical therapist 

and lasted almost four hours. (Id.) Ibarra-Montufar was allowed to take breaks as 

needed during the evaluation. (Id.) The therapists concluded that Ibarra-Montufar 

could perform “light” work with the additional limitation of only infrequent lifting of 

10 pounds to shelf height, 30 pounds from floor to waist height, and 40 pounds at 

waist height. (Id. at 469.) He could stand in one spot for 8-18 minutes before 

needing to walk around, and then could walk for 14-32 minutes before needing to 

sit. (Id.) He was able to perform actions below the waist without a problem—

although the evaluation then states that he did so with “reports of increasing low 

back pain.” (Id.) He was able to reach forward without difficulty but immediately 

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felt pain when reaching overhead, especially with both hands. (Id.) The report 

listed “subjective data” of “moderate to intense discomfort in [the] low back area” 

and “nominal generalized fatigue.” (Id. at 468.) The “cooperation/level of effort” 

portion stated that Ibarra-Montufar had a “cooperative manner,” that he exerted 

“maximal and consistent/valid effort,” and showed a “willingness to attempt new 

activities or increased weights.” (Id.) Ibarra-Montufar’s grip strength was below 

the 10th percentile for his right upper arm and at the 15th percentile for his left. 

(Id. at 467.) Finally, the report noted that “all activities were performed while 

using a spinal stimulator for pain control.” (Id.) 

 In May 2009 Ibarra-Montufar completed a Social Security Administration 

Disability Report in connection with his claim for benefits. (Id. at 138.) On it, he 

stated that he stopped working on January 3, 2008, on account of pain. (Id.) In 

answer to the question of how his condition limits his ability to work, IbarraMontufar wrote: 

Unable to stand for longer than 5 minutes. Legs start tingling if 

standing for too long. Unable to walk for long distances, when walking 

turns pain stimulator up. Changes positions frequently, needs to 

change positions, shifts when sitting and laying down or will get up 

and walk for a few minutes and lay back down. Unable to lift and 

carry items. Unable to reach due to stimulator wiring. Constant pain. 

Pain makes concentration difficult. Becomes fatigued easily. Does not 

sleep well at night. Prior to pain pump, experienced ulcers and kidney 

stones from pain medications. 

(Id.) In July 2009 Dr. Scott Kale examined Ibarra-Montufar in connection with his 

disability claim. (Id. at 412-16.) Dr. Kale took an x-ray of Ibarra-Montufar’s 

lumbar spine, which revealed the stimulator, but he found that “the joints 

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themselves appear to be unremarkable and not predictive of pain or dysfunction.” 

(Id. at 412.) He also found that “the x-rays do not explain the basis of his pain and 

do not show the fusion.” (Id.) Dr. Kale noted his impressions of “chronic failed low 

back syndrome,” and obesity and found Ibarra-Montufar’s cooperation and effort to 

be “excellent.” (Id. at 416.) Dr. Kale also noted Ibarra-Montufar’s complaint that 

despite the stimulator and his medications of Darvocet and Motrin, he continues to 

experience pain of seven or eight out of ten, and that lifting, standing, bending, and 

prolonged sitting will increase the pain to a ten out of ten. (Id. at 413.) IbarraMontufar also reported that he was unable to lift 15 pounds without pain. (Id.) 

During the physical exam component of the evaluation, Ibarra-Montufar had 

trouble getting on and off the exam table and was unable to squat or hop on one leg. 

(Id. at 415.) He had no trouble standing or walking on his toes or heels or tandem 

walking. (Id.) His lumbar spine, however, demonstrated considerable loss of range 

of motion: his lumbar flexion was only 30 out of 60 possible degrees, and his degree 

of extension and bilateral bending was only 5 out of 25 possible degrees. (Id.) He 

also experienced a paravertebral muscle spasm during the exam. (Id.) 

 State examiner Dr. Richard Bilinsky reviewed Ibarra-Montufar’s record on 

July 27, 2009, and determined that Ibarra-Montufar could lift 20 pounds 

occasionally, 10 pounds frequently, could sit, stand, and/or walk with normal breaks 

for about six hours of an eight-hour workday, could push and/or pull unlimited 

amounts, and could perform light work with occasional stooping. (Id. at 418-25.) 

The only limitations Dr. Bilinsky included in his report were “occasional” 

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limitations on climbing ladders/ropes/scaffolds, stooping, crouching, and crawling; 

and “frequent” limitations on climbing ramps/stairs, balancing, and kneeling. (Id. 

at 420.) He placed no limits on Ibarra-Montufar’s ability to reach. (Id. at 421.) He 

noted in his report that Ibarra-Montufar was able to do some work around the 

house, such as laundry, but that he has “problems in most physical areas.” (Id. at 

425.) He noted that Ibarra-Montufar is obese. (Id.) Dr. Bilinsky found IbarraMontufar to be “partially credible” as he observed few limitations at the exam and, 

per Dr. Kane’s report, found no evidence of any lumbar fusion and only mild 

degenerative joint disease. (Id. at 425.) Dr. James Madison concurred with 

Dr. Bilinsky’s assessment. (Id. at 429-31.)

 At the end of 2009 Ibarra-Montufar bent over and hurt his back, causing him 

to experience greater pain, particularly in his right leg. (Id. at 446.) At that point 

in time, Ibarra-Montufar rated his pain as “horrible” and “hot-burning.” (Id. at 

456.) In January 2010 Dr. Arber opined that Ibarra-Montufar was incapable of 

even sedentary work. (Id. at 452.) Shortly thereafter, Drs. Arber and Adamson 

determined that Ibarra-Montufar’s stimulator must have malfunctioned and 

suggested revision surgery. (Id. at 446.) Dr. Adamson described Ibarra-Montufar’s 

pain as “intractable.” (Id. at 503.) Revision surgery took place on April, 2, 2010. 

(Id. at 503-05.) Ibarra-Montufar returned to Dr. Adamson for a post-operative visit 

on April 5, 2010, at which time Dr. Adamson stated that “[s]ince we revised the 

spinal cord stimulator on Friday, 04/02, the patient has had good relief from the 

symptoms in his right leg. Objectively his sensory and motor examination is 

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normal.” (Id. at 438.) The following week, Dr. Adamson commented that IbarraMontufar “continues to have good relief of the symptoms in his lower extremities.” 

(Id. at 437.) Ibarra-Montufar filled out a Measurement of Pain questionnaire on 

April 20, 2010, wherein he described his pain as “discomforting,” which is a two on a 

pain scale that spans from zero to five. (Id. at 435.) Dr. Arber’s progress notes from 

that same date reflect Ibarra-Montufar’s comment that “pain is better since 

replacement.” (Id. at 436.) 

B. The ALJ Hearing 

 The ALJ conducted a hearing on July 28, 2010. At the hearing, IbarraMontufar described himself as being 5’7” tall and weighing 230 pounds. (Id. at 36.) 

He is a native of Guatemala with only a sixth-grade education. (Id. at 37.) 

Presently he lives with his wife and has two grown children. (Id. at 36-37.) Prior to 

January 2008, Ibarra-Montufar worked as a warehouse picker whose duties 

included packing medical supplies. (Id. at 38.) Ibarra-Montufar contends that he 

cannot work now because of pain in his lower back that radiates down his legs. (Id. 

at 38-39.) He states that his pain has gotten worse in the last year, that he has 

become forgetful, and that he has trouble sleeping. (Id. at 39.) He takes Tylenol III 

and Vicodin for his pain. (Id.) He does not do housework or cook on account of his 

pain, but he is able to shower or bathe and dress himself. (Id. at 40.) He 

occasionally drives to the store to pick up small items, although this hurts his back 

and is difficult because the stimulator causes his feet to feel numb. (Id. at 37, 40.) 

Ibarra-Montufar’s daily morning routine is to wake-up, feed his birds and dogs, 

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smoke a cigarette outside, and then change positions frequently. (Id. at 40.) He 

does not have any friends because he cannot socialize. (Id. at 41.) He smokes 10 

cigarettes a day. (Id.) He feels pain all the time and can stand for only about five 

minutes before he needs to sit down. (Id.) He can sit for about two to four minutes 

before he needs to stand up. (Id. at 42.) He lies down about four times a day for 

anywhere between 30 minutes and two hours. (Id. at 42-43.) Stairs are painful and 

he can walk only a half a block or less. (Id. at 40, 42.) He has trouble 

concentrating. (Id. at 43.) His chronic pain has also affected his family life because 

he cannot take care of his yard or help with household chores. (Id.) 

 The ALJ also took testimony from vocational expert (“VE”) Thomas Gusloff, 

who testified that a hypothetical person who could “do the entire universe of 

exertional and non-exertional work”—but who is limited to lifting ten pounds 

occasionally, five pounds frequently, standing and walking two out of eight hours in 

divided periods, sitting six out of eight hours with a sit/stand option at will, 

occasional postural changes, no ladders, ropes, or scaffolds or exposure to 

vibrations, unprotected heights or dangerous moving equipment—would not be able 

to return to heavy work such as the type of work Ibarra-Montufar performed at the 

warehouse. (Id. at 44.) However, there would be other jobs he could perform: final 

assembler, bench assembly worker, preparer for plated ware, and touch-up 

screener. (Id. at 45.) Ibarra-Montufar’s attorney asked the VE whether these jobs 

would remain if the hypothetical person were unable to stay “on task” for at least 30 

minutes or were unable to sit for six hours during an eight hour workday. (Id. at 

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46.) The VE opined that given the jobs’ repetitive nature, it would be possible to be 

“off task” for a certain amount of time and still perform, and further, that these jobs 

could be performed while standing. (Id.) 

C. The ALJ’s Decision 

 In evaluating Ibarra-Montufar’s claim, the ALJ applied the five-step 

sequential inquiry for determining a disability, which required him to analyze: 

(1) whether the claimant is currently employed; (2) whether the 

claimant has a severe impairment; (3) whether the claimant’s 

impairment is one that the Commissioner considers conclusively 

disabling; (4) if the claimant does not have a conclusively disabling 

impairment, whether he can perform his past relevant work; and (5) 

whether the claimant is capable of performing any work in the 

national economy. 

Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012). If at step three of this 

framework the ALJ finds that the claimant has a severe impairment that does not 

meet one of the impairments listed in Appendix 1, he must “assess and make a 

finding about [the claimant’s] residual functional capacity based on all the relevant 

medical and other evidence.” 20 C.F.R. § 404.1520(e). A claimant’s residual 

functional capacity (“RFC”) is the quantification of what he can still do despite his 

limitations. Id. at § 404.1545(a)(1). The ALJ uses the RFC to determine at steps 

four and five whether the claimant can return to his past work or to different 

available work. Id. at § 404.1520(f), (g). It is the claimant’s burden to prove that he 

has a severe impairment that prevents him from performing past relevant work. 

Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000); 42 U.S.C. § 423(d)(2)(A). 

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 Here, at steps one and two of the analysis the ALJ determined that IbarraMontufar has not engaged in substantial gainful activity since the application date 

of January 3, 2008, and that he suffers from one severe impairment: degenerative 

disc disease. (A.R. 22.) At step three, the ALJ declined to find that IbarraMontufar has an impairment that meets or equals one of the listed impairments in 

20 C.F.R. § 404, Subpart P., Appendix 1. (Id.) The ALJ considered IbarraMontufar’s degenerative disc disease under Listing 1.04 (disorders of the spine) but 

found no diagnostic evidence supporting the requirements of the Listing. (Id. at 24.) 

 Proceeding to step four, the ALJ determined that Ibarra-Montufar has the 

RFC to perform sedentary work in the workforce, subject to the following 

limitations: 

the claimant is unable to lift/carry more than 10 pounds occasionally 

and five pounds frequently; unable to stand and/or walk more than 2 

hours out of an 8 hour workday, in divided periods; unable to sit for 

more than about 6 hours in an 8-hour workday, with a sit/stand option 

at will; unable to perform more than occasional posturals; unable to 

climb ladders, ropes or scaffolds; unable to work around unprotected 

heights or dangerous moving machinery; and unable to tolerate 

concentrated exposure to vibration. 

(Id.) In making this determination, the ALJ concluded that although IbarraMontufar’s disc disease could reasonably be expected to cause his alleged symptoms 

of chronic pain, his symptoms were out of proportion with the medical findings. (Id. 

at 25.) The ALJ also noted the absence of treating source opinion evidence 

indicating that Ibarra-Montufar is incapable of any level of work. (Id. at 25-26.) 

Finally, at step five the ALJ found that Ibarra-Montufar’s RFC allows him to work 

as a final assembler, bench assembly worker, preparer for plated ware, or touch-up 

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screener for personal computer boards. (Id. at 27.) Accordingly, the ALJ concluded 

that Ibarra-Montufar is not under a disability as defined by the Social Security Act 

and denied his application for benefits. (Id.) 

Analysis

 In his motion for summary judgment, Ibarra-Montufar challenges the ALJ’s 

decision in five respects. First, Ibarra-Montufar argues that the ALJ failed to 

consider the effect of his obesity on his disc disease. Second, he argues that the 

ALJ’s RFC analysis improperly excluded a discussion of his pain symptoms in 

contravention of SSR 96-8p. Third, Ibarra-Montufar maintains that the ALJ’s 

credibility determination contravenes SSR 96-7p by using boilerplate language and 

failing to consider his testimony about his pain. Fourth, he contends that the ALJ 

cherry-picked from the April 2008 Functional Capacity Evaluation only that 

evidence supporting a non-disability finding. Fifth, Ibarra-Montufar argues that 

the ALJ erred in finding that he can perform a significant number of jobs that exist 

in the national economy. 

 This court confines its review to the reasons offered by the ALJ, Steele v. 

Barnhart, 290 F.3d 936, 941 (7th Cir. 2002) (citing SEC v. Chenery Corp., 318 U.S. 

80, 93–95 (1943)), and examines whether the ALJ’s decision is supported by 

substantial evidence, Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010). 

Substantial evidence is “‘such relevant evidence as a reasonable mind might accept 

as adequate to support a conclusion.’” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 

2007) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). This court may not 

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“reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute 

[its] own judgment for that of the Commissioner.” Clifford, 227 F.3d at 869. We 

must affirm the ALJ’s decision if reasonable minds could differ regarding whether 

the claimant is disabled. Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007). But 

remand is warranted if the ALJ’s decision “lacks evidentiary support or is so poorly 

articulated as to prevent meaningful review,” Steele, 290 F.3d at 940, or fails to 

“provide an accurate and logical bridge between the evidence and the conclusion 

that the claimant is not disabled,” Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008) 

(internal quotations omitted). 

A. The ALJ’s Obesity Analysis 

 Ibarra-Montufar first argues that the ALJ failed to address the combined 

severity of his degenerative disc disease with his obesity. The Commissioner 

counters that Ibarra-Montufar neglected to assert what functional limitations he 

thinks result from his obesity. The Commissioner further points out that IbarraMontufar already is limited to sedentary work—the least exertional work level—

and that Ibarra-Montufar has not identified any evidence indicating that he is in 

need of further restrictions. 

 Obesity is a complicated issue within the Social Security context because it 

does not have its own listing. See SSR 02-1p, 2002 WL 34686281, at *5 (Sept. 12, 

2002). Even so, as explained in SSR 02-1p: “[o]besity . . . commonly leads to, and 

often complicates, chronic diseases of the cardiovascular, respiratory, and 

musculoskeletal body systems.” Id. at *3. Accordingly, it is possible for an obese 

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individual with multiple impairments, none of which meet or equal the 

requirements of a listing, to nonetheless have a “combination of impairments . . . 

equivalent in severity to a listed impairment.” Id. at *5. ALJs are therefore 

obligated to take obesity into consideration when determining the total impact of a 

claimant’s impairments. Martinez v. Astrue, 630 F.3d 693, 698-99 (7th Cir. 2001); 

Clifford, 227 F.3d at 873. This requirement is tempered, however, by the harmless 

error rule. Under that rule, even if it appears that an ALJ had not expressly 

considered a claimant’s obesity, his failure to do so will be deemed harmless error 

where he “indirectly took obesity into account by adopting limitations suggested by 

physicians who were aware of or discussed [the claimant’s] obesity.” Arnett v. 

Astrue, 676 F.3d 586, 593 (7th Cir. 2012); see also Prochaska v. Barnhart, 454 F.3d 

731, 736-37 (7th Cir. 2006). 

 In this case, the ALJ did not count obesity among Ibarra-Montufar’s severe 

impairments, and he did not expressly discuss whether his obesity, together with 

his disc disease, meets or medically equals a listed impairment. However, the ALJ 

mentioned Ibarra-Montufar’s height of 5’7” and weight of 220 pounds, (A.R. 23), and 

he took into consideration the findings of several “State Agency doctors” when 

determining that Ibarra-Montufar is not disabled, (id. at 26). Drs. Kale and 

Bilinsky, both of whom are “State Agency” doctors, noted Ibarra-Montufar’s obesity 

in their reports, (id. at 416, 425), and thus it reasonably can be inferred that the 

ALJ indirectly took obesity into account. See Arnett, 676 F.3d at 593. IbarraMontufar, for his part, fails to point to any evidence, other than the argument of his 

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counsel, suggesting that his obesity exacerbated his physical impairments. 

Accordingly, the court finds that any failure on the part of the ALJ to expressly 

discuss Ibarra-Montufar’s obesity is harmless error. See Prochaska, 454 F.3d at 

736-37 (finding harmless error where claimant failed to specify how obesity 

impaired his work ability and the ALJ implicitly considered claimant’s condition in 

citing doctor’s reports). But that being said, given this court’s decision to remand 

this case for further proceedings, the presiding ALJ should take the time to examine 

the effect of Ibarra-Montufar’s weight on his disc disease. See, e.g., Gentle v. 

Barnhart, 430 F.3d 865, 868 (7th Cir. 2006) (opining that obesity would necessarily 

amplify the effect of disc disease on a claimant’s ability to stand and sit). 

B. The ALJ’s RFC Determination 

 Next Ibarra-Montufar claims that the ALJ’s RFC assessment is erroneous 

because it is devoid of analysis concerning his pain, need to lie down, numbness, 

reaching difficulties, and concentration difficulties. The Commissioner maintains 

that the ALJ considered Ibarra-Montufar’s allegations in his narrative and then 

explicitly discussed in his analysis Ibarra-Montufar’s need to lie down throughout 

the day. As for Ibarra-Montufar’s other issues, the Commissioner argues that the 

ALJ’s decision to restrict him to sedentary work reasonably accommodates IbarraMontufar’s other functional limitations. 

 In evaluating a claimant’s RFC, an ALJ must consider all relevant medical 

and non-medical evidence. See 20 C.F.R. §§ 404.1545(a)(3). According to the Social 

Security regulations, the RFC assessment must appraise the claimant’s abilities on 

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a function-by-function basis to determine the most an individual can do, despite his 

limitations, on a “regular and continuing basis,” meaning essentially eight hours a 

day, five days a week. SSR 96–8p, 1996 WL 374184, at *1 (July 2, 1996); Pepper v. 

Colvin, 712 F.3d 351, 362 (7th Cir. 2013). Specifically: 

The RFC assessment must include a narrative discussion describing 

how the evidence supports each conclusion, citing specific medical facts 

(e.g., laboratory findings) and nonmedical evidence (e.g., daily 

activities, observations). In assessing RFC, the adjudicator must 

discuss the individual’s ability to perform sustained work activities in 

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

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

describe the maximum amount of each work related activity the 

individual can perform based on the evidence available in the case 

record. The adjudicator must also explain how any material 

inconsistencies or ambiguities in the evidence in the case record were 

considered and resolved. 

SSR 96–8p at *7; see also Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009) 

(finding that an ALJ must evaluate all limitations that arise from a medically 

determinable impairment and may not ignore a line of evidence contrary to the 

ruling). With this standard in mind, the court agrees that the ALJ’s RFC analysis 

leaves too many issues unaddressed and thus prevents meaningful review. The 

ALJ’s conclusion that Ibarra-Montufar is capable of sedentary work (with certain 

additional modifications) possibly is the right conclusion. However, in arriving at 

this conclusion the ALJ ignored numerous symptoms and complaints and then 

quickly dispatched with minimal elaboration those he did entertain. For instance, 

he referred to: (1) the lack of a “treating source opinion” showing that IbarraMontufar is disabled; (2) the presence of other “evidence” showing that after the 

original spinal stimulator surgery in 2006, Ibarra-Montufar returned to light work 

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and only stopped in 2008 when the employer refused to continue accommodating his 

restrictions; (3) “evidence” from “his doctor” that he was unable to perform 

sedentary work prior to his second stimulator surgery in 2010 but that these 

restrictions ended after the stimulator revision surgery; (4) “a functional capacity 

report describ[ing] him as being able to do light work;” and (5) the findings of “State 

Agency doctors” who found him “not disabled.” (A.R. 25-26.) These broad 

statements, taken together, led the ALJ to conclude that Ibarra-Montufar is not 

disabled, although out of deference to Ibarra-Montufar’s disc disease and complaints 

of pain, he limited Ibarra-Montufar to modified sedentary work. (Id. at 26.) 

The problem with the ALJ’s explanation is that it gives short shrift to IbarraMontufar’s medical situation and avoids actual analysis. While the ALJ supported 

his RFC conclusion with some findings, his analysis fails to mention a single doctor 

by name and, with few exceptions, neglects to pinpoint the evidence he relied upon. 

The ALJ’s speedy assessment of Ibarra-Montufar’s condition as “disc disease with 

lots of complaints of chronic pain,” seems an oversimplification of a medical record 

that includes three spinal surgeries. Further, the ALJ relied upon the 2008 

Functional Capacity Evaluation as proof of Ibarra-Montufar’s ability to perform 

light work in 2010, but at no time did he discuss for purposes of the RFC some of 

the limitations contained within that report, such as Ibarra-Montufar’s immediate 

pain response to reaching overhead with both hands, or the “moderate to intense 

discomfort in the low back area” that he experienced throughout the evaluation, 

notwithstanding the spinal stimulator. (A.R. 468.) The ALJ seemingly attempted 

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to work around Ibarra-Montufar’s functional limitations by giving him some “credit” 

for having chronic pain and disc disease, but giving credit is not the same thing as 

taking the time to understand the extent of the pain and the limitations it causes. 

See Erwin v. Astrue, No. 11 CV 1555, 2012 WL 3779036, at *8 (N.D. Ill. Aug. 30, 

2012) (“Summarizing medical evidence is no substitute for actual analysis of 

medical evidence.”); see also Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 

2004) (remanding case where ALJ improperly disregarded evidence of claimant’s 

pain from pain-treatment procedures and the surgical implantation of a catheter 

and a spinal-cord stimulator). 

Moreover, the ALJ glossed over the presence of the stimulator itself, except 

for a quick assertion that Ibarra-Montufar had a stimulator “installed for pain 

relief” and has “good control of pain symptoms on account of the spinal cord 

stimulator and various medications.” (A.R at 25.) While this very likely is true, it 

seems important to bear in mind that the stimulator simply masks pain—it does 

not remove it or cure it. It seems clear that the stimulator allows Ibarra-Montufar 

to do things he would not be able to do without it—and this is probably alright—

except for the fact that by masking his pain, it is possible for Ibarra-Montufar to 

exceed his back’s limitations or to damage the stimulator in some fashion. This is 

not simply conjecture: Ibarra-Montufar’s medical record indicates that in 2009 he 

bent over and dislodged the stimulator leads in his spine, causing the stimulator to 

fail and descending him into “intractable pain.” (A.R. 503.) This pain was certainly 

alleviated by his second stimulator surgery—enough so that his surgeon noted 

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“good control” over his pain—but still this raises the question of what IbarraMontufar is capable of doing when his pain is essentially masked and he previously 

felt intractable pain. And then there is a notation in Dr. Kale’s evaluation that 

Ibarra-Montufar had a “paravertebral muscle spasm.” (Id. at 415.) It seems 

possible to this court that a spinal stimulator’s ability to mask pain can create an 

illusion of greater well-being than is in fact the case. Perhaps the paravertebral 

muscle spasm Dr. Kale noted during his examination is proof of this point. This is 

at least an important consideration and one that warrants more of a discussion 

than was afforded by the ALJ. 

 In addition to speeding through his analysis, the ALJ also neglected to 

discuss Ibarra-Montufar’s alleged physical and mental limitations, including his leg 

numbness, inability to reach, and confusion, or to analyze how these limitations 

would affect the RFC. The Commissioner argues that the ALJ implicitly factored in 

some of these limitations when he arrived at his sedentary work designation, but 

SSR 96-8p instructs that more is required of an ALJ, stating: “[w]ithout a careful 

consideration of an individual’s functional capacities . . . the adjudicator may . . . 

overlook limitations or restrictions that would narrow the ranges and types of work 

an individual may be able to do.” SSR 96-8p at *4. Thus, while the court recognizes 

that sedentary work “represents a significantly restricted range of work” in 

deference to physical and mental impairments that cause “very serious functional 

limitations,” SSR 96-9p, 1996 WL 374185, at *3 (July 2, 1996), an ALJ must still 

take the time to resolve conflicts between the medical evidence and the claimant’s 

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testimony, Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010). And so in this case, 

while it may be true that the ALJ implicitly addressed Ibarra-Montufar’s need for 

an extremely non-exertional job environment, his determination did not minimally 

articulate how Ibarra-Montufar’s inability to reach (for fear of dislodging his 

stimulator leads), the effects of his medications (confusion), or his leg numbness 

(caused by the stimulator) factored into the RFC determination. See Steele, 290 

F.3d at 941. Furthermore, the ALJ may not rely on an absence of objective medical 

evidence to reject testimony, as he did with respect to Ibarra-Montufar’s need to lie 

down. See Filus v. Astrue, 694 F.3d 863, 869 (7th Cir. 2012) (noting that “[a]n ALJ 

may not reject a claimant’s testimony about limitations on his daily activities solely 

because his testimony is unsupported by the medical evidence”). On remand, the 

ALJ will have the opportunity to “build a logical bridge from evidence to 

conclusion.” See Villano, 556 F.3d at 562. 

C. The ALJ’s Credibility Determination 

Next Ibarra-Montufar argues that the ALJ erred in assessing his credibility 

and in failing to consider a number of symptoms linked to his pain, including his 

need to lie down, leg numbness, need to avoid reaching, and mental confusion from 

his medications. This court affords an ALJ’s credibility determination considerable 

deference and will only overturn it when it is “patently wrong.” Prochaska, 454 

F.3d at 738. That being said, it is the ALJ’s responsibility to evaluate “the 

intensity, persistence, and functionally limiting effects of the [claimant’s] symptoms 

. . . to determine the extent to which the symptoms affect the individual’s ability to 

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do basic work activities.” SSR 96-7p, 1996 WL 374186, at *1 (July 2, 1996). When 

determining an individual’s credibility, an ALJ “must consider the entire case 

record, including the objective medical evidence.” Id. A claimant’s description of 

the intensity and persistence of his pain “may not be disregarded solely because 

they are not substantiated by objective medical evidence.” Id. 

In this case, after summarizing the medical record but before analyzing the 

evidence, the ALJ made the following statement: “[a]fter careful consideration of 

the evidence, the undersigned finds that the claimant’s medically determinable 

impairment 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 capacity assessment.” (A.R. 25.) The Seventh Circuit repeatedly has 

criticized this very language as being meaningless. See, e.g., Parker v. Astrue, 597 

F.3d 920, 922 (7th Cir. 2010). “Such boilerplate,” the Seventh Circuit has stated, 

“fails to inform us in a meaningful, reviewable way of the specific evidence the ALJ 

considered in determining that claimant’s complaints were not credible.” Bjornson 

v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012) (citation and quotations omitted). 

Additionally, this language has come under fire for referring to the “above residual 

functional capacity assessment” when in fact the assessment comes later in the 

opinion. Filus, 694 F.3d at 868. The determination of whether a claimant is able to 

work is often dependent on his credibility, and thus it is prejudicial to the claimant 

when a court flip-flops the analysis by determining the ability to work before 

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analyzing the claimant’s credibility. See Bjornson, 671 F.3d at 645. The only 

exception to this rule is where the ALJ has otherwise explained his conclusion, in 

which case the inclusion of this language can be deemed harmless. See Filus, 694 

F.3d at 868. 

 In this case, having resorted to incorporating template language into his 

decision, the ALJ then failed to adequately build a bridge from the evidence to his 

conclusion that Ibarra-Montufar can perform sedentary work. The ALJ believed 

Ibarra-Montufar’s pain symptoms were not credible because his “allegations of pain 

and functional limitations are out of proportion to the objective medical findings 

and treatment notes which indicate good control of pain symptoms with the spinal 

cord stimulator and prescribed medications.” (A.R. 25.) While this may ultimately 

prove to be the most reasonable conclusion, credibility determinations under SSR 

96-7p require, among other things, consideration of a claimant’s daily activities; an 

analysis of the dosage, effectiveness, and side-effects of medication; an inquiry into 

the frequency, intensity, and duration of pain; and an examination of functional 

restrictions. See Trice v. Astrue, 11 CV 1939, 2012 WL 5471089, at *14 (N.D. Ill., 

Nov. 9, 2012). The ALJ found Ibarra-Montufar’s pain symptoms to be out of 

proportion with the medical evidence and treatment notes, but he did not reveal 

which medical evidence, notes, or medications he was referring to in arriving at this 

conclusion. Further, the ALJ discredited Ibarra-Montufar’s need to lie down 

throughout the day on grounds that no medical evidence supports this allegation. 

But certain symptoms, including pain, “sometimes suggest a greater severity of 

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impairment than can be shown by objective medical evidence alone, [such that] the 

adjudicator must carefully consider the individual’s statements about symptoms 

with the rest of the relevant evidence.” SSR 96-7p at *1. The ALJ was required to 

explain the inconsistencies between Ibarra-Montufar’s activities of daily living, his 

complaints of pain, and the medical evidence, but he did not do so. See Villano, 556 

F.3d at 562 (holding that the ALJ erred by failing to analyze the factors required 

under SSR 96–7p, including whether the claimant’s daily activities were consistent 

or inconsistent with the pain and limitations she claimed). On remand, the ALJ 

will have an opportunity to engage in a fuller analysis of the evidence. 

 The court also notes that there are several instances where the ALJ 

overlooked evidence of Ibarra-Montufar’s credibility. The occupational and physical 

therapists who administered Ibarra-Montufar’s Functional Capacity Evaluation in 

April 2008 noted that Ibarra-Montufar was cooperative, willing to attempt new 

activities or increased weights, and exerted maximum effort during the testing. 

(A.R. 468.) Similarly, when Dr. Kale examined Ibarra-Montufar in July 2009 at the 

request of the Commissioner, he found Ibarra-Montufar’s “overall effort and 

cooperation [to be] excellent.” (Id. at 416.) The ALJ does not mention this, or 

Ibarra-Montufar’s work history. Up to the date of his alleged disability, IbarraMontufar worked for 17 years as a warehouse picker, where he drove a forklift, 

loaded skids, picked up and moved medical supply materials, and lifted up to 60-70 

pounds at a time. (Id. at 139.) The record indicates that although he experienced 

pain, he did not work fewer hours or change his job duties other than to restrict 

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lifting to 15 pounds. (Id. at 138.) Ibarra-Montufar took six to eight weeks off for his 

2003 spinal fusion surgery, but then asked Dr. Adamson in 2004 to advise him as to 

when he could return to work. (Id. at 309.) Ibarra-Montufar also continued to work 

after his first two surgeries. (Id. at 138.) All of these facts support the conclusion 

that Ibarra-Montufar is a credible claimant. While ultimately it is the domain of 

the ALJ to determine Ibarra-Montufar’s credibility, on remand he must avoid 

cherry-picking only such evidence as will support his ultimate conclusion. See, e.g., 

Denton, 596 F.3d at 425 (finding that while an ALJ need not mention each piece of 

evidence or testimony, he cannot select and discuss only evidence that favors his 

ultimate conclusion) (citations omitted). 

D. The ALJ’s Reliance on the Functional Capacity Evaluation 

In making his RFC assessment, the ALJ relied upon the April 2008 

Functional Capacity Evaluation in concluding that Ibarra-Montufar is capable of 

light work. (A.R. 26.) Ibarra-Montufar contends that the ALJ erroneously relied on 

this report, mischaracterized its conclusions, and overlooked contrary evidence, 

including evidence of his diminished grip strength and the fact that the testing 

environment allowed him to take breaks as needed over the course of the four-hour 

evaluation. The court has already directed the ALJ to reanalyze the evidence 

pertaining to the RFC analysis. In so doing, the ALJ should review the Functional 

Capacity Evaluation anew to determine its relevance. 

E. The ALJ’s Step-Five Determination 

 Finally, Ibarra-Montufar maintains that he is unable to communicate in 

English and that the ALJ failed at step five to incorporate this limitation into the 

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hypothetical question posed to the VE. The court disagrees. “The ALJ is required 

only to incorporate into his hypotheticals those impairments and limitations that he 

accepts as credible.” Schmidt, 496 F.3d at 845-46; Simila v. Astrue, 573 F.3d 503, 

521 (7th Cir. 2009). The record is replete with evidence that Ibarra-Montufar can 

communicate in English. He spoke English at the disability hearing. (A.R. 36-44.) 

He spoke English with his doctors. He spoke English with Dr. Kale, who examined 

Ibarra-Montufar for purposes of the disability claim and noted that “[h]e is literate 

in Spanish but cannot write in English. He was able to speak it adequately on 

todays’ examination.” (Id at 413.) There is nothing in the record to suggest IbarraMontufar is unable to communicate in English. His English may not be 

sophisticated or complex, but he is understandable and able to express himself, as 

evidenced by the hearing testimony. 

 Finally, Ibarra-Montufar maintains that the ALJ should not have relied upon 

the VE’s recommendations at all because the VE failed to understand the import of 

an at-will sit/stand option. According to Ibarra-Montufar, the VE was asked: “[a]nd 

if this person was unable to sit for six hours during an eight-hour workday, would 

these jobs remain?” (Id. at 46.) The VE responded in the affirmative: “[w]ell, the 

job could be accommodated by standing, so if he could sit—five hours and stand for 

three, then . . . you still could do the job.” (Id.) This answer, Ibarra-Montufar 

suggests, shows a failure to appreciate an at-will sit/stand option and thus destroys 

the VE’s credibility. But what Ibarra-Montufar does not tell the court is that the 

question at issue was posed by his own attorney, and thus the VE’s answer was 

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merely a response to what Ibarra-Montufar’s own counsel asked. Ibarra-Montufar’s 

attorney did not ask the VE a question specifically addressing a sit/stand-at-will 

scenario, so naturally the response would likewise fail to discuss this option. 

Accordingly, the court finds this argument to be without merit. 

Conclusion

For the foregoing reasons, Ibarra-Montufar’s motion for summary judgment 

is granted to the extent it seeks a remand for further proceedings. 

 ENTER:

_________________________________ 

 Young B. Kim 

 United States Magistrate Judge

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