UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

MARY P. BLACK, )

Plaintiff, )

)

 v. ) CAUSE NO.: 4:13-CV-79-PRC

)

CAROLYN W. COLVIN, )

Acting Commissioner of the )

Social Security Administration, )

Defendant. )

OPINION AND ORDER

This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Mary P. Black on

October 22, 2013, and a Plaintiff’s Brief in Support of Her Motion to Reverse the Decision of the

Commissioner of Social Security [DE 17], filed by Plaintiff on June 4, 2014. Plaintiff requests that

the July 3, 2012 decision of the Administrative Law Judge denying her claim for disability insurance

benefits be reversed and remanded for further proceedings. On August 13, 2014, the Commissioner

filed a response, and Plaintiff filed a reply on August 21, 2014. For the following reasons, the Court

grants Plaintiff’s request for remand.

PROCEDURAL BACKGROUND

Plaintiff suffers from chronic neck and back pain, coronary artery disease, degenerative disc

disease, ulcerative colitis, unstable angina, bowel problems, headaches, depression, and anxiety. On

January 14, 2011, Plaintiff filed an application for disability insurance benefits, alleging an onset

date of December 12, 2008. The application was denied initially on March 17, 2011, and upon

reconsideration on May 4, 2011. Plaintiff timely requested a hearing, which was held on June 26,

2012, before Administrative Law Judge (“ALJ”) Henry Kramzyk. In appearance were Plaintiff, her

attorney, and a vocational expert.
The ALJ issued a written decision denying benefits on July 3, 2012, making the following

findings:

1. The claimant last met the insured status requirements of the Social Security

Act on June 30, 2012.

2. The claimant has not engaged in substantial gainful activity during the period

from her amended alleged onset date of May 10, 2011 through her date last

insured of June 30, 2012.

3. Through the date last insured, the claimant had the following severe

impairments: coronary artery disease, degenerative disc disease of the

thoracic spine; degenerative disc disease of the cervical spine-status post

rhizotomy; and, degenerative joint disease of the right shoulder-status post

surgery.

4. Through the date last insured, the claimant did not have an impairment or

combination of impairments that met or medically equaled the severity of one

of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.

5. After careful consideration of the entire record, the undersigned finds that

through the date last insured, the claimant had the residual functional

capacity to perform light work as defined in 20 CFR 404.1567(b) except: the

claimant could never climb ladders, ropes, or scaffolds, or kneel, or crawl;

the claimant could occasionally reach overhead and perform fine and gross

manipulations with her right dominant upper extremity.

6. Through the date last insured, the claimant was unable to perform any past

relevant work.

7. The claimant was born [in 1962] and was 50 years old, which is defined as

an individual closely approaching advanced age, on the date last insured.

8. The claimant has at least a high school education and is able to communicate

in English.

9. Transferability of job skills is not material to the determination of disability

because using the Medical-Vocational Rules as a framework supports a

finding that the claimant is “not disabled,” whether or not the claimant has

transferable job skills.

10. Through the date last insured, considering the claimant’s age, education,

work experience, and residual functional capacity, there were jobs that

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existed in significant numbers in the national economy that the claimant

could have performed.

11. The claimant was not under a disability, as defined in the Social Security

Act, at any time from May 10, 2011, the amended alleged onset date, through

June 30, 2012, the date last insured.

(AR 11-22).

On August 22, 2013, the Appeals Council denied Plaintiff’s request for review, leaving the

ALJ’s decision the final decision of the Commissioner. See 20 C.F.R. § 404.981. On October 22,

2013, Plaintiff filed this civil action pursuant to 42 U.S.C. § 405(g) for review of the Agency’s

decision.

The parties filed forms of consent to have this case assigned to a United States Magistrate

Judge to conduct all further proceedings and to order the entry of a final judgment in this case.

Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42

U.S.C. § 405(g).

STANDARD OF REVIEW

The Social Security Act authorizes judicial review of the final decision of the agency and

indicates that the Commissioner’s factual findings must be accepted as conclusive if supported by

substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ will reverse

only if the findings are not supported by substantial evidence or if the ALJ has applied an erroneous

legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Substantial evidence

consists of “such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005) (quoting Gudgel v. Barnhart,

345 F.3d 467, 470 (7th Cir. 2003)).

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A court reviews the entire administrative record but does not reconsider facts, re-weigh the

evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its judgment

for that of the ALJ. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford v. Apfel, 227

F.3d 863, 869 (7th Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Thus, the

question upon judicial review of an ALJ’s finding that a claimant is not disabled within the meaning

of the Social Security Act is not whether the claimant is, in fact, disabled, but whether the ALJ “uses

the correct legal standards and the decision is supported by substantial evidence.” Roddy v. Astrue,

705 F.3d 631, 636 (7th Cir. 2013) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir.

2010); Prochaska v. Barnhart, 454 F.3d 731, 734-35 (7th Cir. 2006); Barnett v. Barnhart, 381 F.3d

664, 668 (7th Cir. 2004)). “[I]f the Commissioner commits an error of law,” the Court may reverse

the decision “without regard to the volume of evidence in support of the factual findings.” White v.

Apfel, 167 F.3d 369, 373 (7th Cir. 1999) (citing Binion v. Chater, 108 F.3d 780, 782 (7th Cir.

1997)).

At a minimum, an ALJ must articulate his analysis of the evidence in order to allow the

reviewing court to trace the path of his reasoning and to be assured that the ALJ considered the

important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Diaz v. Chater, 55

F.3d 300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). An ALJ must

“‘build an accurate and logical bridge from the evidence to [the] conclusion’ so that [a reviewing

court] may assess the validity of the agency’s final decision and afford [a claimant] meaningful

review.” Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007) (quoting Scott, 297 F.3d at 595)); see

also O’Connor-Spinner, 627 F.3d at 618 (“An ALJ need not specifically address every piece of

evidence, but must provide a ‘logical bridge’ between the evidence and his conclusions.”); Zurawski

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v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (“[T]he ALJ’s analysis must provide some glimpse into

the reasoning behind [the] decision to deny benefits.”).

DISABILITY STANDARD

To be eligible for disability benefits, a claimant must establish that she suffers from a

“disability” as defined by the Social Security Act and regulations. The Act defines “disability” as

an inability to engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment that can be expected to result in death or that has lasted or can be

expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A).

To be found disabled, the claimant’s impairment must not only prevent her from doing her previous

work, but considering her age, education, and work experience, it must also prevent her from

engaging in any other type of substantial gainful activity that exists in significant numbers in the

economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(e)-(f).

When a claimant alleges a disability, Social Security regulations provide a five-step inquiry

to evaluate whether the claimant is entitled to benefits. 20 C.F.R. § 404.1520(a)(4). The steps are:

(1) Is the claimant engaged in substantial gainful activity? If yes, the claimant is not disabled, and

the claim is denied; if no, the inquiry proceeds to step two; (2) Does the claimant have an

impairment or combination of impairments that are severe? If not, the claimant is not disabled, and

the claim is denied; if yes, the inquiry proceeds to step three; (3) Do(es) the impairment(s) meet or

equal a listed impairment in the appendix to the regulations? If yes, the claimant is automatically

considered disabled; if not, then the inquiry proceeds to step four; (4) Can the claimant do the

claimant’s past relevant work? If yes, the claimant is not disabled, and the claim is denied; if no,

then the inquiry proceeds to step five; (5) Can the claimant perform other work given the claimant’s

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residual functional capacity (“RFC”), age, education, and experience? If yes, then the claimant is

not disabled, and the claim is denied; if no, the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(i)-

(v); see also Scheck v. Barnhart, 357 F.3d 697, 699-700 (7th Cir. 2004).

At steps four and five, the ALJ must consider an assessment of the claimant’s RFC. The RFC

“is an administrative assessment of what work-related activities an individual can perform despite

her limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001). The RFC should be

based on evidence in the record. Craft v. Astrue, 539 F.3d 668, 676 (7th Cir. 2008) (citing 20 C.F.R.

§ 404.1545(a)(3)). The claimant bears the burden of proving steps one through four, whereas the

burden at step five is on the ALJ. Zurawski, 245 F.3d at 886; see also Knight v. Chater, 55 F.3d 309,

313 (7th Cir. 1995).

ANALYSIS

Plaintiff argues that remand for further proceedings is required because the ALJ (1) failed

to include restrictions related to mild limitations in concentration, persistence, or pace in the mental

RFC and failed to identify an evidentiary basis for the physical RFC; (2) improperly evaluated

Plaintiff’s credibility; and (3) ignored evidence concerning Plaintiff’s occipital neuralgia. The Court

considers each argument in turn.

A. Residual Functional Capacity

Remand is required for a proper mental and physical RFC determination. The RFC is a

measure of what an individual can do despite the limitations imposed by her impairments. Young,

362 F.3d at 1000; 20 C.F.R. § 404.1545(a). The determination of a claimant’s RFC is a legal

decision rather than a medical one. 20 C.F.R. § 404.1527(e)(1); Diaz, 55 F.3d at 306 n.2. The RFC

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is an issue at steps four and five of the sequential evaluation process and must be supported by

substantial evidence. SSR 96-8p, 1996 WL 374184, *3 (July 2, 1996); Clifford, 227 F.3d at 870.

“The RFC assessment is a function-by-function assessment based upon all of the relevant

evidence of an individual’s ability to do work-related activities.” SSR 96-8p, at *3. The relevant

evidence includes medical history; medical signs and laboratory findings; the effects of symptoms,

including pain, that are reasonably attributed to a medically determinable impairment; evidence from

attempts to work; need for a structured living environment; and work evaluations, if available. Id.

at *5. In arriving at an RFC, the ALJ “must consider all allegations of physical and mental

limitations or restrictions and make every reasonable effort to ensure that the file contains sufficient

evidence to assess RFC.” Id. In addition, he “must consider limitations and restrictions imposed by

all of an individual’s impairments, even those that are not ‘severe’” because they “may–when

considered with limitations or restrictions due to other impairments–be critical to the outcome of a

claim.” Id.

1. Mental RFC–Concentration, Persistence, or Pace

The ALJ erred by failing to consider the effects of Plaintiff’s mild restrictions in social

functioning and in concentration, persistence, or pace on her mental RFC. See Winfield v. Colvin,

No. 2:11-CV-432, 2013 WL 692408, at *4 (N.D. Ind. Feb. 25, 2013); Underwood v. Colvin, No.

2:11-CV-354, 2013 WL 2420874, at *3-4 (N.D. Ind. May 30, 2013). An ALJ must consider all

limitations that result from medically determinable impairments, even those that are not severe.

Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009). In this case, the ALJ did not discuss whether 

and, if so, how he determined that Plaintiff’s non-severe mental impairments of anxiety and

depression produced no functional limitations.

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At step two of the sequential analysis, the ALJ performed the special technique, finding that

Plaintiff had mild limitations in social functioning and in concentration, persistence, or pace and

finding that Plaintiff’s anxiety and depression were not severe. Recognizing that the analysis at step

two is different from that required to determine the mental RFC, the ALJ concluded step two with

this transition: “The mental residual functional capacity assessment used at steps 4 and 5 of the

sequential evaluation process requires a more detailed assessment by itemizing various functions

contained in the broad categories found in paragraph B of the adult mental disorders listings in 12.00

of the Listing of Impairments (SSR 96-8p).” (AR 15). Yet, the ALJ does not conduct any such

detailed assessment.

Rather, the ALJ made two statements regarding her mental impairments in the RFC. First,

the ALJ noted, without discussion, that the psychological consultants, Dr. Neville and Dr. Larsen,

“opined that the claimant had no severe mental impairments.” (AR 20). This is nothing more than

a recitation of evidence that supports that ALJ’s step two determination. Second, the ALJ

commented that “[t]here is no subsequent evidence of worsening of her mental impairment

symptoms.” Id. The fact that the symptoms of Plaintiff’s mental impairments had not worsened does

not inform the question of whether she suffers any limitations as a result of those impairments. The

ALJ provided no further discussion of Plaintiff’s mental impairments in the context of the RFC.

During her consultative psychological examination in February 2011, Plaintiff informed V.

Rini, Psy.D. that she experiences periods when she loses the motivation to keep herself groomed and

had experienced suicidal ideation. She reported experiencing weekly crying spells, changes in

appetite, and frequent napping during the day. Dr. Rini observed that Plaintiff’s affect was depressed

and that she wept during the interview. Plaintiff remembered two out of five items after three

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minutes and made five errors in performing serial sevens. Plaintiff did not know the direction in

which the sun rises. Dr. Rini diagnosed major depressive disorder, moderate and recurrent, and

generalized anxiety disorder. In her Adult Function Report, Plaintiff averred that she must

continually check to ensure that she is properly following written instructions and that she needs to

write down spoken directions. Her husband also indicated that Plaintiff reads written instructions

“over and over” and that she almost always writes down verbal instructions. On the Psychiatric

Review Technique Form, state agency psychologist Dr. Kenneth Neville reviewed Plaintiff’s

medical history and determined that she had mild restrictions in maintaining social functioning and

in concentration, persistence, or pace. 

At the hearing, Plaintiff testified that she had minimal interaction with others. She testified

that she left the workforce in 2008 because she was unable to remember recipes and the procedure

for making coffee that was required for that job. She testified that she suffers panic attacks and

rarely desires to socialize, describing herself as a “basket case.” She testified that she suffers anxiety

and chest pains when in a group setting.

The Commissioner cites case law for the proposition that the ALJ need only minimally

articulate his reasoning. See Filus v. Astrue, 694 F.3d 863, 869 (7th Cir. 2012); Skarbek v. Barnhart,

390 F.3d 500, 503 (7th Cir. 2004); Johansen v. Barnhart, 314 F.3d 283, 287 (7th Cir. 2002). But in

this case, the ALJ gave no reasoning and, in fact, drew no conclusion about mental limitations in the

RFC. Although the ALJ discussed Plaintiff’s mental health records at step two, the ALJ did not do

so in the context of determining whether Plaintiff suffers from any functional limitations as a result.

The Commissioner is correct that mild or even moderate limitations do not necessarily

prevent an individual from functioning satisfactorily, citing Sawyer v. Colvin, 512 F. App’x, 603,

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611 (7th Cir. 2013). However, in Sawyer, the court made that comment at step five in the context

of analyzing the vocational expert’s testimony; earlier in that decision, the ALJ conducted a mental

RFC determination. In this case, the possibility that Plaintiff ultimately may not have any functional

limitations does not excuse the ALJ from conducting the proper analysis. The Court remands for a

proper mental RFC determination.

2. Physical RFC

On March 1, 2011, Dean A. Choucair, D.O., M.P.H. conducted a consultative examination.

Dr. Choucair found that Plaintiff had full range of motion in her upper extremities and that her

musculoskeletal examination was unremarkable. On neurological examination, Plaintiff had good

muscle strength and tone graded 5/5 in the bilateral upper and lower extremities; her deep tendon

reflexes were 2/4 in the bilateral upper and lower extremities; and she had good grip strength

bilaterally and the ability to perform fine and gross movements effectively on a sustained basis. 

On April 20, 2011, Plaintiff presented for evaluation for right shoulder pain from an injury

two weeks earlier from yard work and hammering. At the May 24, 2011 follow up visit, Plaintiff

reported increased pain in the right arm and shoulder. On examination, she had decreased range of

motion of the right shoulder joint due to joint pain especially with internal and external rotation and

she was tender over the anterior shoulder joint. The impression from a May 25, 2011 MRI of the

right shoulder was a “minor amount of signal abnormality which is somewhat focal along the

anterior edge of the supraspinous tendon involving the under surface at its attachment to the humeral

head compatible with a very small tear of the under surface of the tendon. There is not evidence of

neither retraction nor fatty atrophy of supraspinatus musculature.” (AR 496). On examination on

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June 7, 2011, Plaintiff had decreased range of motion. On June 30, 2011, Plaintiff was given a

cortisone injection into the right subacromial space.

Because the conservative treatment did not provide relief, on August 27, 2011, Plaintiff

underwent a subacromial decompression and hypertrophic bursectomy and an arthroscopic

debridement of the glenoid labrum tear. Over the next several months, Plaintiff’s pain level and

weakness improved. In October 2011, her pain level was 3 out of 10 on a scale of 0 to 10, with 10

being the highest level of pain. On November 11, 2011, Plaintiff reported that her pain and weakness

were improving, and her doctor released her to progressively increase normal activities as tolerated.

The next treatment record is from May 18, 2012, when Plaintiff presented with recurring right

shoulder pain with a pain level of 7 out of 10. On examination, Plaintiff’s range of motion of the

shoulder and the cervical spine was normal. Plaintiff was given a cortisone injection in the right and

left subacromial spaces. Two weeks later, Plaintiff was moderately better with her pain having

subsided by 80%, but she still complained of stiffness in her fingers. She had appropriate range of

motion.

The ALJ found that Plaintiff retained the RFC to perform work at the light exertional level

but could never climb ladders, ropes, or scaffolds, could never kneel or crawl, could occasionally

climb ramps or stairs, and could occasionally reach overhead and perform gross and fine

manipulations with the upper right extremity. The ALJ gave this RFC for light work after assessing

Plaintiff’s credibility and after reviewing the state agency medical consultants’ opinions. 

First, after reviewing the medical evidence, including the injury to Plaintiff’s right shoulder,

the ALJ found that Plaintiff “is not credible,” finding that certain allegations were inconsistent with

her husband’s report, that her subjective allegations were “grossly disproportionate with objective

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findings,” and that examinations consistently showed no significant abnormalities. (AR 19).

Notwithstanding the adverse credibility finding, the ALJ limited Plaintiff to light work because she

had a history of mild to moderate coronary artery disease and mild to moderate degenerative changes

in her cervical and thoracic spine. 

The ALJ then found that there was no evidence of advanced muskuloskeletal changes or any

indication for spinal surgery such that her standing and lifting tolerance would be any more limited.

He noted that her primary exertional limitation is a degenerative spine with the addition of the right

shoulder injury. He commented that there is no evidence of “more than subjective fatigue or general

weakness.” (AR 19). He found that “the claimant had normal strength and no shortness of breath at

most, if not in all examinations of record. The evidence does not support that claimant could not

occasionally lift 20 pounds. Her husband estimated that she could lift up to 15 pounds.” (AR 20).

As for reaching, handling, and fingering, the ALJ gave Plaintiff “the fullest benefit of the doubt”

based on her right shoulder surgery that involved impingement syndrome and reduced her ability

to perform fine and gross manipulations and to reach overhead with her right upper extremity to

occasionally.

Second, the ALJ reviewed the opinion evidence. On March 17, 2011, consultative reviewer

B. Whitley, M.D. opined that Plaintiff retained the capacity to perform work at the medium

exertional level and was subject to no restrictions in pushing and pulling and to no postural,

manipulative, visual, communicative, or environmental limitations. Dr. Whitley’s opinion was

affirmed by Fernando R. Montoya, M.D. on May 2, 2011. The ALJ gave substantial weight to these

opinions. However, both opinions predate Plaintiff’s shoulder injury. No other medical opinion

evidence was submitted. In her response brief, the Commissioner insists that “all of the medical

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opinions in the record unanimously contradict Plaintiff’s allegations of her disability and support

the ALJ’s RFC assessment” without acknowledging that the opinions predate Plaintiff’s shoulder

injury. Similarly, the Commissioner details all of the medical records the ALJ considered; but

neither the ALJ nor the Commissioner identify any records that show that Plaintiff can lift 10

pounds frequently and 20 pounds occasionally.

Despite giving substantial weight to the opinion for medium exertional work from March

2011 and despite finding Plaintiff not credible, the ALJ rejected the opinion for exertional work and

gave “the claimant the fullest benefit of doubt based on her testimony and history, and considering

that, she had a right shoulder injury after the physical assessments were made, and has reduced

exertion to light [work] with other appropriate limitations . . . .” (AR 20).

Despite the ALJ assessing an RFC for light work rather than for the medium work opined

by the consultative reviewers, Plaintiff nevertheless contends that the ALJ erred by not identifying

objective or subjective evidence that supports the RFC finding and that the ALJ crafted the RFC

assessment from his own lay understanding of the effects of her impairments. In Scott v. Astrue, 647

F.3d 734, 740 (7th Cir. 2011), the ALJ based her finding that the claimant could stand for 6 hours

in a regular work day and lift 10 to 20 pounds on the state agency examiner’s report. However, the

court found that nothing in that report suggested that the claimant could do either; rather, the report

stated that the claimant had successfully walked 50 feet without a cane within the office. Id. Nor was

there evidence in the report that the examiner tested the claimant’s ability to lift heavy objects. Id.

The court found that the ALJ had not explained how she reached her conclusions about the

claimant’s physical capabilities. Id.

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In this case, the ALJ appropriately found that Plaintiff could do less than the medium level

work assessed by the consultative reviewers based on her shoulder injury and her history of coronary

artery disease and degenerative changes to her cervical and thoracic spine. However, like in Scott,

the ALJ did not explain how he found that Plaintiff could do light work, as opposed to less than light

work, other than to broadly state that there is “no evidence of advanced muskuloskeletal changes

or any indication for spinal surgery such that her standing and lifting tolerance would be more

limited.” (AR 19). The ALJ does not explain how either of these situations would be determinative

of the amount Plaintiff could lift occasionally or frequently. Thus, once the ALJ found that Plaintiff

was more limited than the state agency physician had opined, the ALJ was left with an evidentiary

deficit to support his finding that Plaintiff had the ability to lift 10 pounds frequently and 20 pounds

occasionally.

The ALJ did not rely on Plaintiff’s testimony and subjective allegations because Plaintiff

testified that she could not lift a gallon of milk, which weighs approximately 8.6 pounds and that

she could not stand for more than ten minutes at a time. Nor did the ALJ identify evidence

suggesting that Plaintiff was capable of overhead reaching or fine or gross manipulations

occasionally, as opposed to for some shorter amount of time. The ALJ did not explain how the raw

medical data led him to conclude that Plaintiff could stand and walk for six as opposed to five, four,

three, two, or one hours in an eight hour day. See Goins v. Colvin, 764 F.3d 677, 680, 682 (7th Cir.

2014) (finding that the ALJ should have gotten a medical report on a subsequent MRI rather than

interpreting it himself in a case in which the ALJ uncritically accepted the conclusions of a

consulting physician who had not reviewed the MRI). Although the ALJ included the November

2011 treatment note that Plaintiff was released to normal activities as tolerated in relation to her

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shoulder, the ALJ did not discuss Plaintiff’s return for treatment of recurring right shoulder pain in

May 2012.

The ALJ did not explain how he determined that work at the light exertional level was

appropriate once he had determined that Plaintiff could not lift and carry the 25 pounds that was

regularly required as part of medium work. As a result, the ALJ’s assessment of Plaintiff’s residual

functional capacity is not supported by substantial evidence. See Suide v. Astrue, 371 F. App’x 684,

690 (7th Cir. 2010). Notably, an individual like Plaintiff who is closely approaching advance age

(ages 50-54), who possesses a high school education, who has no transferable work skills, and who

is limited to sedentary work is to be found disabled. See 20 C.F.R. Part 404, Subpart P, Appendix

2 § 201.12. On remand, the ALJ is directed to set forth the evidentiary basis for the RFC finding and

may wish to consider obtaining the opinion of a medical advisor or seeking clarification of the

record if necessary. See Bailey v. Barnhart, 473 F. Supp. 2d 822, 838-39 (N.D. Ill. 2006) (citing

Barnett, 381 F.3d at 669; Wilder v. Chater, 64 F.3d 335, 338 (7th Cir. 1995)).

B. Credibility

In making a disability determination, the ALJ must consider a claimant’s statements about

her symptoms, such as pain, and how the symptoms affect her daily life and ability to work. See 20

C.F.R. § 404.1529(a). Subjective allegations of disabling symptoms alone cannot support a finding

of disability. Id. The ALJ must weigh the claimant’s subjective complaints, the relevant objective

medical evidence, and any other evidence of the following factors:

(1) The individual’s daily activities;

(2) Location, duration, frequency, and intensity of pain or other symptoms;

(3) Precipitating and aggravating factors;

(4) Type, dosage, effectiveness, and side effects of any medication;

(5) Treatment, other than medication, for relief of pain or other symptoms;

(6) Other measures taken to relieve pain or other symptoms;

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(7) Other factors concerning functional limitations due to pain or other

symptoms.

See 20 C.F.R. § 404.1529(c)(3). “Because the ALJ is ‘in the best position to determine a witness’s

truthfulness and forthrightness . . . this court will not overturn an ALJ’s credibility determination

unless it is ‘patently wrong.’” Shideler v. Astrue, 688 F.3d 306, 310-11 (7th Cir. 2012) (quoting

Skarbek, 390 F.3d at 504-05); see also Prochaska, 454 F.3d at 738. Nevertheless, “an ALJ must

adequately explain his credibility finding by discussing specific reasons supported by the record.”

Pepper, 712 F.3d at 367 (citing Terry, 580 F.3d at 477); SSR 96-7p, 1996 WL 374186, at *2 (Jul.

2, 1996) (“The determination or decision must contain specific reasons for the finding on credibility,

supported by the evidence in the case record, and must be sufficiently specific to make clear to the

individual and to any subsequent reviewers the weight the adjudicator gave to the individual’s

statements and the reasons for that weight.”).

Plaintiff first argues that the ALJ’s credibility determination is flawed because he found her

“not credible,” (AR 19), but then gave her the “fullest benefit of the doubt,” (AR 21), when he

concluded that she could only occasionally reach overhead with the right upper extremity and only

occasionally perform fine and gross manipulations with the right upper extremity. Indeed, these

statements are inconsistent. Although the Commissioner makes a persuasive argument that the ALJ

found Plaintiff “not credible” generally regarding her physical impairments but that he gave her “the

fullest benefit of the doubt based on her testimony and history,” (AR 20), with regard to her right

shoulder injury, the ALJ did not make that distinction. The ALJ clearly concluded: “A review of the

evidence shows that the claimant is not credible.” (AR 19). This is an impermissible internal

inconsistency within the ALJ’s decision. Remand is required for the ALJ to properly explain his

credibility determination.

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In a related vein and closely tied to the RFC analysis above, Plaintiff argues that the ALJ did

not explain why he did not limit Plaintiff to less than occasional overhead reaching and occasional

fine and gross manipulation with the upper right extremity if he gave her the “fullest benefit of the

doubt.” Plaintiff testified that her right arm strength was so severely diminished that she was unable

to pour a cup of coffee with the right hand. She also testified that she suffered spasms in the right

hand and right arm, that she was unable to lift and carry a gallon of milk, that she suffered tingling

in the right hand as well as diminished grip strength, that she dropped drinking glasses, and that she

did not have sufficient grip strength to twist a lid off of a jar. If the ALJ had truly given Plaintiff the

full benefit of the doubt, he would have reduced the amount of weight Plaintiff could lift to less than

a gallon of milk and precluded Plaintiff from having to grip or twist objects with the right hand. The

Court remands on this issue for an explanation.

In assessing her credibility, the ALJ found certain of Plaintiff’s statements to be inconsistent

with those of her husband. However, the ALJ subsequently weighed Plaintiff’s husband’s statements

and found them to be internally inconsistent and unsupported and, thus, entitled to little weight to

the extent they were inconsistent with a finding that Plaintiff could perform work at the light

exertional level. Plaintiff criticizes the ALJ’s use of the husband’s statements to find Plaintiff less

than credible given that those statements were given little weight. On remand, the ALJ is directed

to clarify the weight given to Plaintiff’s husband’s statements in relation to Plaintiff’s credibility.

The ALJ also erred by not addressing the impact that the side effects of Plaintiff’s

prescription medications had on her ability to sustain employment. The Commissioner does not

respond to this argument. Plaintiff testified that her medications caused drowsiness, forgetfulness,

and diminished her ambition. The ALJ recited these side effects in his decision, but he did not assess

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the credibility of her statements regarding side effects and failed to determine the impact of the side

effects, if any, on her ability to work. It may be that because the ALJ initially found her “not

credible,” he also found her statements about medication side effects to be not credible. In light of

his decision to later give her the benefit of the doubt as to some statements, the failure to discuss the

medication side effects must be remedied on remand.

Finally, Plaintiff argues that the ALJ’s use of the oft-discussed boilerplate language to decide

Plaintiff’s credibility requires remand. See, e.g., Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir.

2012). On remand, the ALJ is directed not to use the boilerplate language.

C. Occipital Neuralgia

Plaintiff argues that the ALJ committed reversible error by ignoring evidence that concerned

her severe headaches caused by occipital neuralgia. Plaintiff is incorrect. So is the Commissioner.

Surprisingly, both parties state that the ALJ did not reference the diagnosis of occipital neuralgia

when, in fact, the ALJ did so in the third full paragraph on page 8 of his decision. See (AR 18).

At the hearing, Plaintiff testified that she experienced constant headaches and that twice each

week she suffered a migraine headache that lasted up to a full day. In her brief, Plaintiff cites an

October 26, 2010 treatment record from Dr. Kondamuri, showing that she suffered headaches that

originated in the temporal region and the top of the head. See (Pl. Br. 9 (citing (AR 348))). At that

visit with Dr. Kondamuri and at earlier visits in August and September 2010, she reported symptoms

that the headaches affect her vision with spots and lines going through the eye and feeling

lightheaded when she stood. Id. (citing (AR 336, 337, 348)). Plaintiff then notes in her brief that she

was diagnosed with occipital neuralgia at that October 26, 2010 visit. At that same visit, Plaintiff

was also diagnosed with cervical facet syndrome, cervical spondylosis, cervical strain, and

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cervicogenic shoulder and headache pain. (AR 349). What Plaintiff fails to include in her summary

of the medical record is that, following that October 26, 2010 diagnosis, she underwent a series of

nerve blocks and ultimately a radiofrequency rhizotomy in February 2011, treatments that resulted

in 75–100% relief of her headaches with no subsequent treatment.

All of this was discussed by the ALJ. He noted Plaintiff’s hearing testimony and discussed

the treatment records of Dr. Kondamuri, including the October 2010 diagnosis of occipital neuralgia,

the injections, and the radiofrequency rhizotomy. (AR 18). The ALJ recognized that in March 2011,

at the consultative examination, Dr. Shoucair found that Plaintiff had good, full range of motion in

the neck, full range of motion in the upper extremities, and a normal musculoskeletal and neurologic

examination. The ALJ further noted that a week later, Plaintiff told Dr. Kondamuri that she had 75%

relief of pain, was taking an occasional Vicodin tablet and Tramadol at bedtime, and did not feel she

needed any further pain procedures. The ALJ noted that Dr. Kondamuri prescribed physical therapy

because Plaintiff still had some pulling in her neck. Plaintiff does not discuss these records or the

ALJ’s consideration of them. The ALJ concluded that, “[w]hile there is evidence of periodic

worsening of pain, there is no longitudinal evidence of extreme pain or constant headache, or weekly

migraines, and treatment records show good response to pain treatment.” (AR 19).

Notably, Plaintiff does not identify any subsequent treatment records for headaches. Thus,

the ALJ’s decision regarding Plaintiff’s headaches, which included those headaches caused by

occipital neuralgia, is supported by substantial evidence, and remand is not required on this basis.

CONCLUSION

Based on the foregoing, the Court hereby GRANTS the relief sought in Plaintiff’s Brief in

Support of Her Motion to Reverse the Decision of the Commissioner of Social Security [DE 17],

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REVERSES the final decision of the Commissioner of Social Security, and REMANDS this matter

for further proceedings consistent with this Opinion and Order.

So ORDERED this 3rd day of March, 2015.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

cc: All counsel of record

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