1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

NOAH M. MILLER, 

Plaintiff, 

vs. 

CAROLYN W. COLVIN, COMMISSIONER 

OF SOCIAL SECURITY, 

Defendant. 

)

)

)

)

)

)

)

)

)

)

)

NO. 2:13–CV-028 

OPINION AND ORDER

 This matter is before the Court for review of the 

Commissioner of Social Security’s decision denying Disability 

Insurance Benefits to Plaintiff Noah M. Miller. For the reasons 

set forth below, the decision of the Commissioner is REVERSED

and this case is REMANDED to the Social Security Administration 

for further proceedings consistent with this opinion pursuant to 

sentence four of 42 U.S.C. section 405(g). 

BACKGROUND 

 On June 9, 2010, Noah M. Miller (“Miller”) filed an 

application for Social Security Disability Benefits (“DIB”) 

under Title II of the Social Security Act, 42 U.S.C. section 401 

et seq. Miller alleged that his disability began on February 

13, 2009. The Social Security Administration (“SSA”) denied his 
2 

initial application and also denied his claim upon 

reconsideration. 

Miller requested a hearing, and on December 22, 2011, 

Miller appeared with his attorney at an administration hearing 

before Administrative Law Judge (“ALJ”) Henry Kramzyk. 

Testimony was provided by Miller and vocational expert (“VE”) 

Leonard M. Fisher. On December 29, 2011, the ALJ issued a 

decision denying Miller’s claim, finding him not disabled 

because he is capable of making a successful adjustment to other 

work that exists in significant numbers in the national economy. 

(Tr. 25.) 

Miller requested that the Appeals Council review the ALJ’s 

decision, but that request was denied. Accordingly, the ALJ’s 

decision became the Commissioner’s final decision. See 20 

C.F.R. § 422.210(a). Miller has initiated the instant action 

for judicial review of the Commissioner’s final decision 

pursuant to 42 U.S.C. section 405(g). 

DISCUSSION1

Facts 

 Miller was born in September 1979, and was 29 years old on 

the alleged disability onset date of February 13, 2009. (Tr. 

 

1 These facts have been borrowed liberally from the parties’ 

briefs.
3 

165.) He has a high school education. (Tr. 170.) Miller’s 

past relevant work includes employment as an assembler, 

carpenter, and final finisher. (See id.) Miller alleges the 

following impairments: degenerative disc disease; essential 

tremors disease; arthritis; and knee and hip problems. (Tr. 

169.) 

Medical Evidence 

 The medical evidence can be summarized as follows: 

Prior to his alleged onset date, Miller suffered from low 

back pain and tremors in his hands. (Tr. 253.) In June 2007, 

Miller’s orthopedic surgeon, Dr. Alan W. McGee, M.D., 

recommended physical therapy and pain medication for his back 

pain. (Tr. 249-50.) 

On January 15, 2008, Miller underwent an L4-5, L5-S1 

bilateral decompressive laminotomies, foraminotomies, and 

fusion. (Tr. 313.) In April 2008, Miller told Dr. McGee that 

he was “doing exceptionally well” after surgery, though he had 

some low back pain. (Tr. 301.) Miller was prescribed Vicodin 

for pain, and was allowed to return to work with no 

restrictions. (Id.) In December 2008, Miller met with his 

primary care physician, Dr. James F. Hanus, D.O., regarding pain 

in his knee, and numbness in his right arm and hand. (Tr. 259-

61.) 
4 

From February 2009 to July 2010, Miller did not see a 

physician. (Tr. 19.) In July 2010, Miller received a physical 

consultative evaluation from Dr. Gina Moore Dudley, M.D. (Tr. 

264-67.) Among other things, Dr. Moore Dudley recorded Miller’s 

spinal fusion surgery and claims of tremors in his hands since 

age eight. (Tr. 264.) Miller told Dr. Moore Dudley that he 

could stand for three to four hours in an eight hour day, walk 

on level ground for a mile, sit for one hour, lift up to 25 

pounds, and walk upstairs with difficulty. (Tr. 265.) Dr. 

Moore Dudley found that Miller’s “ambulation was normal,” his 

“gait was okay with no assistive device required for 

ambulation.” (Tr. 266.) Dr. Moore Dudley provided, in part, 

the following functional assessment of Miller: stand and walk 

for at least six hours; sit without restrictions; “have no 

restrictions in terms of an assistive device as he did not 

require one;” lift and carry occasionally 50 pounds and 

frequently 25 pounds, with some decrease in his range of motion; 

have infrequent postural limitations secondary to his decreased 

range of motion; infrequently have some difficulty with bending, 

stooping and kneeling; and no manipulative or environmental 

limitations. (Tr. 266-67.) 

 On August 18, 2010, State agency physician Dr. Fernando 

Montoya, M.D., completed a Physical Residual Functional Capacity 

Assessment of Miller. (Tr. 269-76.) Dr. Montoya’s assessment 
5 

of Miller’s standing, walking and lifting limitations was the 

same as Dr. Moore Dudley’s. (Tr. 270.) In addition, Dr. 

Montoya limited Miller to six hours of sitting in an eight hour 

day, and suggested the following postural limitations: never 

climbing scaffolding; and only occasionally balancing, stooping, 

kneeling, crouching, crawling, or climbing ramps or stairs. 

(Tr. 271.) Dr. Montoya also suggested that Miller avoid uneven 

slippery surfaces and unprotected heights. (Tr. 273.) State 

agency physician, Dr. J. Sands, M.D., affirmed Dr. Montoya’s 

opinion on December 21, 2010. (Tr. 277.) 

In December 2010, Miller reported that the pain in his back 

was worse than it had been in August 2010, and that he was 

taking over-the-counter pain medications, which “help[ed] a 

little bit.” (Tr. 192.) Miller also noted that he could stand 

for one hour and sit for 30 minutes. (Id.) 

 On February 15, 2011, Dr. Hanus conducted a physical exam 

of Miller. (Tr. 291.) Dr. Hanus noted that Miller had severe 

pain in his lower back that caused him to limp, and right leg 

pain. (Id.) Miller rated his pain as 8 out of 10. (Id.) 

Miller also complained of numbness and tingling in his hands and 

forearms, and that he was dropping objects. (Id.) Neurological 

testing revealed decreased grip strength in both hands, as well 

as Phalen and Tinel in both arms, indicating probable bilateral 

carpal tunnel syndrome. (Id.) The results of a straight leg 
6 

lifting test were negative. (Id.) Dr. Hanus recommended a 

magnetic resonance imaging (“MRI”) of Miller’s lumbosacral spine 

and an electromyography (“EMG”) of both arms, but because Miller 

had “no insurance and no money coming in,” they would delay 

these tests until Miller could pay for them. (Id.) 

On March 18, 2011, an MRI of Miller’s lumbar spine was 

performed that displayed post operative changes of posterior 

fusion at L4-5 and L5-S1. (Tr. 289.) It did not show recurrent 

disc bulge or herniation, central canal stenosis, lateral recess 

or foraminal stenosis. (Id.) 

On March 30, 2011, Dr. Bhupendra K. Shah, M.D., performed 

an electromyogram (“EMG”) on Miller. (Tr. 284.) The EMG 

results suggested a mild degree ulnar nerve entrapment of the 

right wrist and borderline to very minimal ulnar nerve entrap at 

the left wrist. (Id.) Because the changes were “very minimal 

at best,” Dr. Shah recommended clinical correlation. (Id.) 

On April 7, 2011, Miller underwent an MRI of his cervical 

spine, the results of which were “unremarkable” with minimal 

disc desiccation and disc bulge present in the mid-cervical 

spine with no encroachment. (Tr. 279-80.) In a letter to Dr. 

Hanus dated April 12, 2011, Dr. Shah noted that Miller walked 

with a limp, used a cane, and had mild tremors of his right 

hand. (Tr. 279.) 
7 

On May 11, 2011, Dr. Hanus completed a Medical Source 

Statement diagnosing Miller with severe and constant back pain 

and tremors. (Tr. 294-98.) Dr. Hanus determined that Miller 

was limited to sitting, standing and walking for less than one 

hour during an eight-hour work day, lifting ten pounds 

occasionally, and occasionally balancing, but never stooping. 

(Tr. 296-97.) 

Dr. Hanus’s treatment notes from June, July, and August 

2011 document Miller’s complaints of pain in his back and neck, 

and his right arm shakiness and muscle spasms. (Tr. 429-30.) 

Dr. Hanus prescribed Percocet for pain, as well as Valium and 

Zanaflex for the muscle spasms. (Tr. 429-31, 452.) 

On or about November 1, 2011, neurologist Dr. Madhav Bhat, 

M.D., conducted a neurological examination of Miller, taking 

into consideration the results of Miller’s prior MRI and EMGs. 

(Tr. 412-13.) Dr. Bhat concluded the examination results were 

“unremarkable,” and attributed the pain in Miller’s neck, right 

arm, and right leg to mechanical sources. (Tr. 413.) Miller’s 

hand tremors were found to be “nonspecific.” (Id.) Dr. Bhat 

recommended no other specific workup for Miller, but suggested 

that he would benefit from a vocational rehabilitation program. 

(Id.) 
8 

Hearing Testimony 

Miller testified that he last worked in February 2009, when 

he was laid off because his employer shut down. (Tr. 38.) He 

testified that he received unemployment benefits for “I believe 

nine months. I’m not entirely sure. I can’t remember how long 

they lasted.” (Id.) Miller explained that he cannot work due 

to his severe back pain, essential tremors, and acute carpel 

tunnel in both wrists. (Tr. 45-46.) Miller indicated that 

medications help for the pain for a short period of time. (Tr. 

49.) He also lies down to alleviate his pain approximately four 

to five hours during an eight hour period each day. (Tr. 61-

62.) Miller stated that his tremors prevent him from reading or 

inspecting something while he holds it. (Tr. 66.) He noted 

that he has numbness and tingling in his hands, and that 

medication did not help with the tremors. (Tr. 67-68.) Miller 

also testified that he cares for his son, does dishes, cooks, 

does laundry, shops, takes care of his personal needs, and 

visits with friends and family. (Tr. 51-55.) 

Miller testified that he started using a cane approximately 

six months before the hearing “to help [him] get around.” (Tr. 

59-60.) According to Miller, the cane alleviates the pain on 

one side of his body and helps him with his balance problems. 

(Tr. 60.) During the hearing, the ALJ accepted evidence of a 

prescription from Dr. Hanus for a walking cane for Miller. (Tr. 
9 

34-35.) The prescription noted Miller’s “short leg syndrome; 

neurological disorder effecting [right] arm [and] leg; trouble 

with balance.” (Tr. 467.) Miller testified that if he wears 

specially made boots that accommodate his shorter leg, he 

doesn’t necessarily need his cane, but he takes the cane with 

him. (Tr. 60.) 

After Miller testified, the ALJ asked the VE to consider a 

hypothetical individual who was the same age as Miller and had 

the same work experience and education. (Tr. 74.) This 

individual could occasionally climb ramps and stairs but never 

climb ladders, ropes, or scaffolds, and could only occasionally 

balance, stoop, crouch, kneel, and crawl. (Tr. 72.) He would 

have to avoid concentrated exposure to uneven and slippery 

surfaces and even moderate exposure to unprotected heights. 

(Tr. 72-73.) The ALJ asked the VE several questions about this 

hypothetical individual, using different limitations as to 

lifting, standing and walking. (Tr. 72-75.) The VE testified 

that the hypothetical individual could not perform Miller’s past 

relevant work. (Tr. 73.) 

The ALJ proposed an individual who could lift, carry, push 

and pull twenty pounds occasionally and ten pounds frequently, 

and could sit, stand, and walk for up to six hours a day. (Tr. 

74.) The VE testified that this hypothetical individual could 

work as a school bus monitor (DOT # 372.667-042), school 
10 

crossing guard (DOT # 371.567-010), parking lot attendant (DOT # 

915.473-010), office helper (DOT # 239.567-010) and encapsulator 

(DOT # 726.687-022). (Id.) 

Review of Commissioner’s Decision 

This Court has authority to review the Commissioner’s 

decision to deny social security benefits. 42 U.S.C. § 405(g). 

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

fact, if supported by substantial evidence, shall be conclusive 

. . . .” Id. Substantial evidence is defined as “such relevant 

evidence as a reasonable mind might accept as adequate to 

support a decision.” Richardson v. Perales, 402 U.S. 389, 401 

(1971); see Moon v. Colvin, 763 F.3d 718, 721 (7th Cir. 2014) 

(noting “this deferential standard of review is weighted in 

favor of upholding the ALJ’s decision”). In determining whether 

substantial evidence exists, the Court shall examine the record 

in its entirety, but shall not substitute its own opinion for 

the ALJ’s by reconsidering the facts or reweighing the evidence. 

See Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003). With 

that in mind, however, this Court reviews the ALJ’s findings of 

law de novo, and if the ALJ makes an error of law, the Court may 

reverse without regard to the volume of evidence in support of 

the factual findings. White ex rel. Smith v. Apfel, 167 F.3d 

369, 373 (7th Cir. 1999). 
11 

As a threshold matter, for a claimant to be eligible for 

DIB benefits under the Social Security Act, the claimant must 

establish that he is disabled. 42 U.S.C. § 423(d)(1)(A). To 

qualify as being disabled, the claimant must be unable “to 

engage in any substantial gainful activity by reason of any 

medically determinable physical or mental impairment which can 

be expected to result in death or which has lasted or can be 

expected to last for a continuous period of not less than 12 

months.” Id. To determine whether a claimant has satisfied 

this statutory definition, the ALJ performs a five-step 

evaluation: 

Step 1: Is the claimant performing substantially 

gainful activity? If yes, the claim is 

disallowed; if no, the inquiry proceeds to 

Step 2. 

Step 2: Is the claimant’s impairment or combination 

of impairments “severe” and expected to last 

at least twelve months? If not, the claim is 

disallowed; if yes, the inquiry proceeds to 

Step 3. 

Step 3: Does the claimant have an impairment or 

combination of impairments that meets or 

equals the severity of an impairment in the 

SSA’s Listing of Impairments, as described 

in 20 C.F.R. § 404, Subpt. P, App. 1? If 

yes, then claimant is automatically 

disabled; if not, then the inquiry proceeds 

to Step 4. 

Step 4: Is the claimant able to perform his past 

relevant work? If yes, the claim is denied; 

if no, the inquiry proceeds to Step 5, where 

the burden of proof shifts to the 

Commissioner. 
12 

Step 5: Is the claimant able to perform any other 

work within his residual functional capacity 

in the national economy? If yes, the claim 

is denied; if no, the claimant is disabled. 

See 20 C.F.R. § 404.1520(a)(4)(i)–(v); see also Herron v. 

Shalala, 19 F.3d 329, 333 n.8 (7th Cir. 1994). 

In this case, the ALJ found that Miller had not engaged in 

substantial gainful activity since February 13, 2009, his alleged 

onset date. (Tr. 16.) The ALJ found that Miller suffers from 

the following severe impairments: post-operative changes of the 

lumbar spine, degenerative changes of the cervical spine, and 

atypical tremors. (Id.)

The ALJ further found that Miller did not have an 

impairment or combination of impairments that meets or medically 

equals the severity of one of the listed impairments in 20 

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

404.1520(d), 404.1525, and 404.1526). (Tr. 17.) The ALJ made 

the following Residual Functional Capacity (“RFC”) 

determination: 

[T]he claimant has the [RFC] to perform light work as 

defined in 20 CFR 404.1567(b) in that he can lift, 

carry, push and pull up to 20 pounds occasionally and 

up to 10 pounds frequently. He can sit for a total of 

up to 6 hours a day, stand and/or walk to a total of 6 

hours per day. He can occasionally climb ramps and 

stairs, but can never climb ladders, ropes, or 

scaffolds. He can occasionally balance, stoop, crouch, 

kneel, and crawl. The claimant would need to avoid 

concentrated exposure to uneven and slippery surfaces 

and would have to avoid even moderate exposure to 

unprotected heights. 
13 

(Id.) Based upon Miller’s RFC, the ALJ found that Miller is 

unable to perform his past relevant work as an assembler, 

carpenter, or final finisher. (Tr. 23-24.) However, the ALJ 

found that Miller is capable of performing other work that 

exists in significant numbers in the national economy, including 

work as school bus monitor, school crossing guard, parking lot 

attendant, office helper, and encapsulator. (Tr. 24-25.) 

Miller believes that the ALJ committed two errors requiring 

reversal. First, Miller alleges the ALJ rendered an improper 

credibility determination. (DE# 17 at 8-15.) Second, Miller 

argues that the ALJ made an erroneous RFC assessment, thus 

presenting the VE with an incomplete hypothetical. (Id. at 15-

19.) 

Credibility Determination 

 Miller claims that the ALJ failed to evaluate properly the 

credibility of Miller’s testimony. Because the ALJ is best 

positioned to judge a claimant’s truthfulness, this Court will 

overturn an ALJ’s credibility determination only if it is 

“patently wrong.” Skarbek v. Barnhart, 390 F.3d 500, 504 (7th 

Cir. 2004). However, the ALJ must articulate specific reasons 

for discounting a claimant’s testimony as being less than 

credible, and cannot merely ignore the testimony or rely solely 

on a conflict between the objective medical evidence and the 

claimant’s testimony as a basis for a negative credibility 
14 

determination. Schmidt v. Barnhart, 395 F.3d 737, 746-47 (7th 

Cir. 2005). The ALJ must make a credibility determination 

supported by record evidence and be sufficiently specific to 

make clear to the claimant and to any subsequent reviewers the 

weight given to the claimant’s statements and the reasons for 

that weight. See Lopez v. Barnhart, 336 F.3d 535, 539-40 (7th 

Cir. 2003). 

 In evaluating the credibility of statements supporting a 

Social Security Application, the Seventh Circuit has noted that 

an ALJ must comply with the requirements of Social Security 

Ruling 96-7p. See Steele v. Barnhart, 290 F.3d 936, 942 (7th 

Cir. 2002). This ruling requires ALJs to articulate “specific 

reasons” behind credibility evaluations; the ALJ cannot merely 

state that “the individual’s allegations have been considered” 

or that “the allegations are (or are not) credible.” SSR 96-7p. 

Furthermore, the ALJ must consider specific factors when 

assessing the credibility of an individual’s statement 

including: 

1. The individual’s daily activities; 

2. The location, duration, frequency, and 

intensity of the individual’s pain or other 

symptoms; 

3. Factors that precipitate and aggravate the 

symptoms; 

4. The type, dosage, effectiveness, and side 

effect of any medication the individual 
15 

takes or has taken to alleviate pain or 

other symptoms; 

5. Treatment, other than medication, the 

individual receives or has received for 

relief of pain or other symptoms; 

6. Any measures other than treatment the 

individual uses or has used to relieve pain 

or other symptoms . . . ; and 

7. Any other factors concerning the 

individual’s functional limitations and 

restrictions due to pain or other symptoms. 

SSR 96-7p; see Golembiewski v. Barnhart, 322 F.3d 912, 915-16 

(7th Cir. 2003). 

The ALJ considered each of these factors in assessing 

Miller’s credibility. The ALJ addressed Miller’s daily 

activities, and found them to be inconsistent with a 

debilitating impairment because they indicated that Miller was 

high functioning, active, independent, and capable of performing 

general chores without assistance. (Tr. 18-19, 21.) The ALJ 

considered Miller’s medical records, and found that they did not 

indicate consistent complaints of pain because, at one time, 

over-the-counter medications alleviated his pain, but at another 

time, Miller described his pain as an “8 out 10.” (Tr. 19–22.) 

The ALJ found that no factors greatly aggravate Miller’s 

symptoms. (Tr. 22.) In evaluating the type, dosage, 

effectiveness, and side of effects of Miller’s medications, the 

ALJ found that Percocet and Valium adequately relieved Miller’s 
16 

pain without side effects. (Id.) The ALJ also noted that 

Miller’s treatment “consists mainly of physician’s visits and is 

void of any conservative physical therapy or recommendations for 

more invasive surgical intervention.” (Id.) The ALJ 

discredited Miller’s testimony that he naps frequently because 

the record did not indicate that naps were necessary to 

alleviate any of Miller’s symptoms. (Id.) 

In considering “other factors,” the ALJ noted 

inconsistencies that detracted from Miller’s overall 

credibility. (Id.) The ALJ pointed out that while Miller 

testified that he stopped working in February 2009, records 

indicate that he earned income in 2010, and collected 

unemployment in 2010, despite testifying otherwise. (Id.) The 

ALJ also considered the opinions of examining physicians Drs. 

Moore Dudley and Montoya, as well as Miller’s treating 

physician, Dr. Hanus, in some detail. (Tr. 22-23.) Based on 

all of these factors, the ALJ found that Miller’s statements 

concerning the intensity, persistence and limiting effects of 

his symptoms were not credible to the extent they were 

inconsistent with the RFC assessment. (Tr. 19, 23.) 

Miller argues that the ALJ erred by failing to properly 

consider Miller’s subjective complaints of pain. Miller first 

maintains that when considering Miller’s daily activities, the 

ALJ failed to differentiate between the exertion level required 
17 

for sporadic physical activity and full-time work. See 

Carradine v. Barnhart, 360 F.3d 751, 755–56 (7th Cir. 2004) 

(explaining that an ALJ cannot rely solely on the claimant’s 

activities to support a conclusion that she is not disabled 

without showing how they translate to the ability to perform 

full-time work); Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 

2012) (noting daily activities allow greater flexibility than 

full-time work, and have no “minimum standard”). The ALJ 

summarized Miller’s daily activities as: 

preparing himself breakfast, dressing himself, hanging 

out with friends and family, spending time with his 

son, and performing daily chores around the house 

including laundry and occasionally mowing the lawn. 

He also testified that he cares for his son every 

other weekend and occasionally during the week and on 

holidays, cooks meals, does laundry, does the grocery 

shopping, and does not contend any problems with 

personal care. Beyond this, he testified that he 

visits with family, spends time with friends, watches 

television, goes out to dinner, takes his 

grandparent’s [sic] shopping, spends time with his 

mother, is a member of the local Moose Club and 

attends meetings twice a month, reads the newspaper, 

uses the computer, and has no problem with the public 

or getting along with others. 

(Tr. 18-19.) Contrary to Miller’s allegation, the ALJ did not 

equate the exertion required for Miller’s daily activities with 

full-time work. Rather, the ALJ found that “[t]hese activities 

do not seem to be the abilities of someone with a debilitating 

condition and further detract from the claimant’s credibility in 

that he is alleging disability and an inability to work at any 
18 

exertional level.” (Tr. 19; see Tr. 21 (noting Miller’s daily 

activities “seem to indicate a high level of functioning and 

contradict his allegations” of a debilitating impairment).) An 

ALJ may “consider whether the claimant’s daily activities are 

inconsistent with [his] stated inability to work.” Oakes v. 

Astrue, 258 Fed. Appx. 38, 43 (7th Cir. 2007). 

 Moreover, Miller has not demonstrated that the ALJ’s 

decision regarding his credibility was patently incorrect. This 

was not a matter of the ALJ concluding that Miller was able to 

perform full-time work because he periodically engaged in 

certain daily activities. As noted above, the ALJ also relied 

on medical evidence, statements relating to alleged pain, 

medical treatment, medications taken, and physicians’ opinions 

to support his conclusion. See Engle v. Colvin, No. 1:13–cv–

339, 2014 WL 6977691, *9 (N.D. Ind. Dec. 9, 2014) (affirming 

ALJ’s decision where ALJ relied on several factors to support 

credibility determination). Even if the ALJ misconstrued the 

evidence of Miller’s daily activities, the other evidence on 

which he relied was sufficient to support his conclusion that 

Miller’s subjective complaints of pain were not entirely 

credible. See Everaert v. Barnhart, No. 03-C-0358-C, 2004 WL 

1446173, *5 (W.D. Wis. Jun. 4, 2004) (affirming ALJ’s decision 

where ALJ relied on evidence other than daily activities to 

support credibility determination). 
19 

Next, Miller contends that the ALJ erred in discrediting 

Miller’s complaints of pain. Miller claims that his history of 

back pain is well documented over several years, and points to 

his treatments in 2007, including physical therapy, and his 

spinal surgery in early 2008. (DE# 17 at 14.) Miller also 

challenges the ALJ’s finding that the treatment of his pain was 

“conservative.” 

The Court finds that the ALJ built the “logical bridge” 

between the evidence and his conclusions regarding Miller’s 

credibility as to his pain. The ALJ acknowledged Miller’s 

history of back pain prior to his alleged onset date, but noted 

that Dr. McGee’s post-operative notes document Miller’s 

exceptional recovery and only mild residual back pain. (Tr. 

19.) The ALJ considered Dr. Hanus’s treatment notes following 

Miller’s surgery, which do not mention back pain after the 

procedure. (Id.) And while Miller complained of pain to Dr. 

Hanus in 2011, Dr. Hanus simply prescribed pain medication; he 

did not recommend any physical therapy or other conservative or 

invasive treatment. (Tr. 20.) Dr. Bhat’s 2011 treatment notes 

indicate that Miller’s right arm pain was mechanical, that the 

MRI showed no evidence of disc herniation or lumbar spinal 

stenosis, and there was no clinical evidence of cervical or 

lumbosacral radiculopathy or entrapment neuropathy. (Id.) Dr. 

Bhat recommended vocation rehabilitation, which indicated to the 
20 

ALJ that Miller has some ability to sustain employment. (Id.) 

The ALJ noted that for pain relief, Miller has taken over-thecounter and prescription medications, but has not undergone any 

other form of treatment. (Tr. 21.) The ALJ also addressed 

inconsistencies in Miller’s assertions regarding his level of 

pain: at one time, over-the-counter medications sufficed to 

alleviate pain, while another time, Miller rated his pain as an 

“8 out 10.” (Tr. 21–22.) See Arnold v. Barnhart, 473 F.3d 816, 

823 (7th Cir. 2007) (“[S]ubjective complaints need not be 

accepted insofar as they clash with other, objective medical 

evidence in the record.”). Thus, the ALJ relied upon ample 

evidence to support his findings that Miller’s pain was not 

consistent, and that his treatment for pain was conservative. 

The Court finds that the ALJ properly supported his finding as 

to the credibility of Miller’s complaints of consistent pain. 

Finally, Miller argues that the ALJ’s statement that Miller 

“was collecting unemployment [benefits] in 2010 in spite of 

testifying otherwise” is factually untrue. (Tr. 22.) The Court 

is precluded from reweighing evidence or determining issues of 

fact. Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). 

Instead, the Court is tasked with the limited issue of 

determining whether the ALJ’s decision is supported by 

substantial evidence. Here, Miller testified that that he was 

laid off on February 13, 2009, and that he received unemployment 
21 

benefits for approximately nine months. (Tr. 38.) A nine month 

period that began in February (or even March) 2009 would have 

ended before January 2010. Thus, the Court finds that Miller’s 

hearing testimony adequately supports the ALJ’s conclusion 

regarding Miller’s unemployment benefits.2

The ALJ’s RFC Determination 

Miller argues that the ALJ made an erroneous RFC assessment 

by failing to incorporate all of Miller’s relevant limitations, 

thus presenting the VE with an incomplete hypothetical. Miller 

argues the ALJ failed to (1) incorporate the effect of Miller’s 

pain on his ability to perform work-related tasks, (2) include 

the greater limitations for his hands in the RFC, and (3) 

address evidence that Miller needs to use a cane. In response, 

the Commissioner maintains that the ALJ did not err because the 

 

2

 Miller also asserts that the ALJ improperly considered his lack 

of medical care while he was unable to seek treatment due to 

lack of health insurance. The Seventh Circuit disapproves of an 

ALJ’s reliance on infrequent medical treatment where the 

claimant does not have health insurance and is incapable of 

paying medical bills. See Goins v. Colvin, 764 F.3d 677, 679-80 

(7th Cir. 2014) (criticizing credibility determination that held 

infrequent medical treatment against indigent claimant). Here, 

the decision states that Miller was “not seen by a physician 

from February 2009 until July 2010, at which time he was 

referred for a physical consultative evaluation. . . .” (Tr. 

19.) But the ALJ did not rely on Miller’s gap in treatment as a 

basis for his credibility assessment. Read in context, the 

ALJ’s reference to this gap was merely part of the larger 

chronology of Miller’s medical treatment. (See Tr. 19-21.)
22 

VE identified a significant number of jobs that could be 

performed by someone with Miller’s limitations. 

In making an RFC finding, the ALJ must describe why a 

claimant’s reported limitations were inconsistent with the 

evidence in the record. See SSR 96–8p; Pepper v. Colvin, 712 

F.3d 351, 363 (7th Cir. 2013). The ALJ must build the necessary 

“logical bridge” between the evidence and his conclusions. 

Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009). Moreover, 

the ALJ must orient the VE to the totality of the claimant’s 

limitations. O’Conner-Spinner v. Astrue, 627 F.3d 614, 619 (7th 

Cir. 2010). “Hypothetical questions posed to vocational experts 

ordinarily must include all limitations supported by medical 

evidence in the record.” Steele, 290 F.3d at 942 (emphasis in 

original); Young v. Barnhart, 362 F.3d 995, 1003 (7th Cir. 

2004). 

The Court rejects Miller’s assertion that the ALJ erred by 

failing to consider the effect of Miller’s pain on his ability 

to perform work-related tasks. An ALJ is “required only to 

incorporate into his hypotheticals those impairments and 

limitations that he accepts as credible.” Simila v. Astrue, 573 

F.3d 503, 521 (7th Cir. 2009). As explained above, the ALJ’s 

decision addressed Miller’s complaints of consistent pain and 

provided reasons for discrediting them. Therefore, the ALJ was 
23 

justified in not including greater limitations based on Miller’s 

pain in the RFC. 

Miller also asserts that the ALJ should have included 

greater limitations for his hands in the RFC. However, the ALJ 

considered Miller’s claims relating to his hands and limited 

Miller’s RFC accordingly. (Tr. 20-21.) The decision notes that 

neurological testing by Dr. Hanus in February 2011 found 

decreased grip strength in both hands, but no indication of the 

degree of decrease. (Tr. 20.) Dr. Hanus documented Miller’s 

complaints of tremors, but an EMG of Miller’s right arm in March 

2011 was “essentially normal” and that Miller’s “symptoms were 

minimal at best.” (Tr. 20-21.) The results of Miller’s 

comprehensive nerve testing were “normal,” possibly suggesting 

“mild degree of ulnar nerve entrapment at the right wrist and 

possible borderline to very minimal ulnar nerve entrapment in 

the left wrist. . . . [E]ven Dr. Shah indicated that these 

changes were very minimal at best.” (Id.) According to Dr. 

Bhat, the results of neurological testing in November 2011 were 

“unremarkable.” (Tr. 21.) Dr. Bhat found that Miller’s hand 

tremors were nonspecific and there was no entrapment, and that 

an MRI of the brachial plexus was normal. (Id.) The decision 

states that “[g]iven the conclusive nature of Dr. Bhat’s 

findings, and the tests conducted by Drs. Hanus and Shah,” the 

ALJ gave Miller “the benefit of the doubt and limit[ed] his 
24 

[RFC] accordingly.” (Id.) It is not for this Court to reweigh 

this evidence or resolve conflicts in the record. See Young, 

362 F.3d at 1001 (“Nor may we reweigh evidence, resolve 

conflicts in the record, decide questions of credibility, or, in 

general, substitute our own judgment for that of the 

Commissioner.”). The Court finds that the ALJ adequately 

supported the RFC determination regarding Miller’s hands. 

Regarding Miller’s use of a cane, the Court finds that the 

ALJ’s failure to address this evidence requires remand. 

“Although the ALJ need not discuss every piece of evidence in 

the record, he must confront the evidence that does not support 

his conclusion and explain why it was rejected.” Indoranto v. 

Barnhart, 374 F.3d 470, 474 (7th Cir. 2004). Courts in this 

Circuit have found that failure to address a claimant’s use of a 

cane requires remand. See Thomas v. Colvin, 534 Fed. Appx. 546, 

550 (7th Cir. 2013) (remanding where ALJ failed to discuss 

adequately claimant’s alleged need to use a cane); Oplinger v. 

Colvin, No. 13-cv-642, 2015 WL 326809, at *6 (N.D. Ill. Jan. 23, 

2015) (same). 

The error . . . is not that the medical evidence 

required the ALJ to find that [the claimant] needed a 

cane to stand and walk, but that the ALJ failed to 

consider the issue at all, leaving us without a 

finding to review. We cannot uphold the ALJ’s 

decision based on a reason that the ALJ did not 

articulate. 
25 

Thomas, 534 Fed. Appx. at 550 (emphasis in original) (citing 

Kastner v. Astrue, 697 F.3d 642, 648 (7th Cir. 2012) and Jelinek 

v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011)). 

Here, the decision does not reference Miller’s use of a 

cane at all. While the decision mentions that Dr. Moore Dudley 

found Miller could walk “without the need of any assistive 

devices” in July 2010 (Tr. 19), the record indicates that Miller 

was using a cane in April 2011 (Tr. 279), and that Dr. Hanus 

prescribed a cane for Miller in November 2011 for Miller’s short 

leg syndrome, his neurological disorder effecting right arm and 

leg, and his trouble with balance. (Tr. 467). At the hearing, 

Miller testified that he began using a cane to help him get 

around, and that the cane alleviates the pain on one side of his 

body and helps him with his balance problems. (Tr. 60.) As 

noted above, the decision discredits Miller’s testimony on other 

issues, but it does not address his testimony regarding his use 

of a cane. Relying on prior medical evaluations and generally 

discrediting Miller’s testimony without addressing his use of a 

cane is not sufficient to build the necessary “logical bridge” 

between the evidence and the ALJ’s conclusions. See Thomas, 534 

Fed. Appx. at 550 (citing Terry, 580 F.3d at 475). 

Furthermore, the ALJ limited the VE to the particular facts 

of the hypotheticals along with Miller’s age, education, and 

work history, but did not incorporate the use of a cane into any 
26 

of the hypotheticals. By the nature of the questioning, the VE 

was prohibited from considering physical limitations he might 

have absorbed either through reviewing the evidence on the 

record or by listening to Miller’s hearing testimony. See 

Young, 362 F.3d at 1003. Because the ALJ failed to consider 

Miller’s use of a cane, REMAND is required. 

CONCLUSION 

 For the reasons set forth above, the decision of the 

Commissioner is REVERSED and this case is REMANDED to the Social 

Security Administration for further proceedings consistent with 

this opinion pursuant to sentence four of 42 U.S.C. section 

405(g). 

DATED: April 24, 2015 /s/ RUDY LOZANO, Judge 

 United States District Court