UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

DIXIE A. VOORHEES, )

Plaintiff, )

)

v. ) CAUSE NO.: 3:14-CV-128-JEM

)

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 Dixie A.

Voorhees on January 23, 2014, and a Brief Plaintiffs Brief in Support of Her Motion to Reverse

the Decision of the Commissioner of Social Security (sic) [DE 19], filed by Plaintiff on July 18,

2014. Plaintiff requests that the decision of the Administrative Law Judge be reversed and

remanded for further proceedings. On October 28, 2014, the Commissioner filed a response, and

on November 18, 2014, Plaintiff filed a reply. For the following reasons, the Court grants

Plaintiff’s request for remand.

PROCEDURAL BACKGROUND

On September 30, 2010, Plaintiff filed an application for disability insurance benefits

(“DIB”) with the U.S. Social Security Administration (“SSA”) alleging that she became disabled

on March 11, 2008. Plaintiff’s application was denied initially and upon reconsideration. On

June 11, 2012, Administrative Law Judge (“ALJ”) Jonathan Stanley held a hearing at which

Plaintiff, with an attorney, and a vocational expert (“VE”) testified. On June 19, 2012, the ALJ

issued a decision finding that Plaintiff was not disabled. 
The ALJ made the following findings under the required five-step analysis:

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

on June 30, 2011.

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

period from her alleged onset date of March 11, 2008, through her date

last insured of June 30, 2011. (20 CFR 404.71 et seq.).

3. Through the date last insured, the claimant had severe impairments:

obesity; mild degenerative disc disease of the cervical and lumbar spine

(“DDD”), and fibromyalgia (20 CFR 404.1520(c)).

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

combination of impairments that met or medically equalled any of the

listed impairments in 20 CFR 404, Subpart P, Appendix 1 (20 CFR

404.1520(d), 404.1525 and 404.1526).

5. Through the date last insured, the claimant had the residual functional

capacity to perform a full range of work at all exertional levels but with

the following nonexertional limitations: the claimant is limited to no more

than occasional climbing of stairs and ramps, balancing, stooping,

kneeling, crouching, or crawling, and no climbing of ropes, ladders, or

scaffolds. 

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

relevant work as a filler remanufacturing toner. (20 CFR 404.1565).

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

Act, at any time from March 11, 2008, through June 30, 2011, the date last

insured (20 CFR 404.1520(f)).

On July 18, 2013, the Appeals Council denied Plaintiff’s request for review, leaving the

ALJ’s decision the final decision of the Commissioner. 

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).

2
FACTS

Plaintiff was diagnosed with fibromyalgia, hypertension, hyperlipidemia,

gastroesophageal reflux disease (GERD), major depressive disorder ,and mild degenerative disc

disease of the cervical and lumbar spine. 

Plaintiff was seen by her physician, Dr. Hough, about every three months from 2009 on. 

He treated her for fibromyalgia, hypertension, hyperlipidemia, back pain, and severe depression. 

On June 14, 2011, he completed a Medical Source Statement, identifying limitations on

Plaintiff’s work-related activities. The form indicated that Plaintiff could only rarely lift ten

pounds, twist, stoop, crouch, or climb stairs, and had limitations with reaching, handling, or

fingering. Dr. Hough noted that Plaintiff would be off task about 25% of the day and could only

tolerate low stress work, and would have to miss more than four days per month because of her

impairments or treatment. He opined that Plaintiff would be limited to sitting for less than two

hours and standing and/or walking for less than two hours in a workday; would require a job that

permitted her to sit and stand at will; and would need hourly unscheduled breaks.

On November 22, 2010, state agency psychologist Dr. Link performed a psychological

assessment and opined that Plaintiff was moderately impaired in her ability to perform workrelated activities due to her anxiety and depression, and that she was incapable of managing her

own funds. 

On December 1, 2010, Dr. Shoucair performed a physical examination for the agency and

diagnosed Plaintiff with neck pain, low back pain, fibromyalgia, hypertension, and GERD. He

opined that Plaintiff was able to sit, stand, walk, handle objects, hear, see, and speak.

3
On December 29, 2010, non-examining state agency physician Dr. Ruiz opined that

Plaintiff could lift 20 pounds occasionally and 10 pounds frequently, could sit and stand or walk

for six hours each over the course of a workday, and could occasionally climb ramps, stairs,

ladders, ropes, and scaffolds, balance stoop, kneel, crouch, and crawl. Dr. Corcoran affirmed the

opinion in April 2011.

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)).

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.

4
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, as a

reviewing court, we 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 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

5
U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(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),

1382c(a)(3)(B); 20 C.F.R. §§ 404.1520(e)-(f), 416.920(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),

416.920(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 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), 416.920(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) (citing SSR

6
96-8p, 1996 WL 374184 (July 2, 1996); 20 C.F.R. § 404.1545(a)) (other citations omitted). 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

A. Residual Functional Capacity

Plaintiff argues that the ALJ did not properly evaluate the medical and mental health

opinions in the record. The Commissioner argues that the ALJ’s findings are supported by

substantial evidence.

The RFC is an assessment of what work-related activities the claimant can perform

despite her limitations. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); see also 20

C.F.R. §§ 404.1545(a)(1); 416.1545(a)(1). In evaluating a claimant’s RFC, an ALJ is expected

to take into consideration all of the relevant evidence, including both medical and non-medical

evidence. See 20 C.F.R. §§ 404.1545(a)(3); 416.945(a)(3). According to SSA regulations:

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.

7
SSR 96-8p at *7. Although an ALJ is not required to discuss every piece of evidence, he must

consider all of the evidence that is relevant to the disability determination and provide enough

analysis in his decision to permit meaningful judicial review. Clifford, 227 F.3d at 870; Young,

362 F.3d at 1002. In other words, the ALJ must build an “accurate and logical bridge from the

evidence to his conclusion.” Scott, 297 F.3d at 595 (quoting Steele v. Barnhart, 290 F.3d 936,

941 (7th Cir. 2002)).

The Court is particularly concerned with the ALJ’s treatment of Plaintiff’s fibromyalgia. 

At step three of his analysis, the ALJ concluded that Plaintiff had fibromyalgia that was severe,

but not severe enough to meet or medically equal a listed impairment. AR 18. However, when

describing the weight given to medical sources, the ALJ discounts the opinions of all the

physicians who diagnosed her fibromyalgia or discussed the limitations it causes her and states

that Plaintiff’s “allegations [of fibromyalgia] are not accepted as alleged because they are not

consistent with the objective medical evidence available in this decision maker.” AR 20. The

ALJ does not include reference to any medical professionals who concluded that Plaintiff is not

suffering from fibromyalgia, or even any medical professionals who questioned the diagnosis. 

Not only is the ALJ’s discounting of Plaintiff’s fibromyalgia inconsistent with his earlier

conclusion that Plaintiff does suffer from severe fibromyalgia, it also appears that the ALJ is

substituting his own medical determination for that of the physicians who actually treated

Plaintiff. He discounted Dr. Hough’s diagnosis of fibromyalgia because the doctor’s notes did

not include a clinical examination the ALJ expected to see (one that is apparently based on an

outdated understanding of diagnostic techniques) and the doctor’s notes contain “no specific

notation as to the sign or symptoms with which the fibromyalgia diagnosis was made.” AR 22. 

8
The Seventh Circuit has repeatedly held that ALJs are not to make their own independent

medical findings. See, e.g., Myles v. Astrue, 582 F.3d 672, 677-78 (7th Cir. 2009); Blakes v.

Barnhart, 331 F.3d 565, 570 (7th Cir. 2003); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996).

Judges have been warned not to “succumb to the temptation to play doctor” because “lay

intuitions about medical phenomena are often wrong.” Schmidt v. Sullivan, 914 F.2d 117, 118

(7th Cir. 1990) (citing cases). 

This same substituting of his own judgment for that of medical professionals is apparent

in the ALJ’s determination of Plaintiff’s physical capacity. Three physicians opined as to

Plaintiff’s RFC: Dr. Ruiz and Dr. Corcoran, two non-examining state agency doctors, and Dr.

Hough, Plaintiff’s treating physician. None of them opined that Plaintiff was capable of work at

the very heavy exertional level, but the ALJ concluded that there were no restrictions on

Plaintiff’s ability to do work at all exertional levels. The ALJ did give some explanation for his

discounting of the three RFC opinions, giving little weight to treating physician Dr. Hough as

described above and discounting the assessments of Dr. Ruiz and Dr. Corcoran because “the

record as a whole fails to support any limitation as to the claimant’s exertional level.” AR 23. 

He cited to Dr. Shoucair’s consultative examination in support of this contention, but Dr.

Shoucair did not specifically address Plaintiff’s exertional limitations, and his reliance on Dr.

Shoucair in this context is inconsistent with his earlier discounting of Dr. Shoucair’s report and

with the fact that medical professionals Ruiz and Corcoran took Dr. Shoucair’s assessment into

account when determining Plaintiff’s exertional capacity.

The ALJ substituted his own judgment for that of the multiple medical opinions in the

record, both as to Plaintiff’s diagnoses and her physical abilities. Although medical evidence

9
“may be discounted if it is internally inconsistent or inconsistent with other evidence,” Knight,

55 F.3d at 314 (citing 20 C.F.R. § 404.1527(c)) (other citations omitted), the ALJ “must provide

a ‘logical bridge’ between the evidence and his conclusions.” O’Connor-Spinner, 627 F.3d at

618. In this case, the ALJ concluded that Plaintiff suffered from the severe impairment of

fibromyalgia, but then discounted the opinion of any medical professional who addressed the

fibromyalgia, and he substituted his own opinion, unsupported by any medical professional, that

Plaintiff suffers from absolutely no exertional limitations. 

Similar problems are in evidence in the ALJ’s analysis of Plaintiff’s depression. The

ALJ gave great weight to the assessment of the state agency psychiatric consultants, who opined

that Plaintiff’s depressive disorder was “non-severe,” and noted Plaintiff’s lack of hospitalization

and treatment only by a primary care physician instead of a specialist. Plaintiff argues that the

ALJ failed to explain the weight given to the opinion of Dr. Link, an examining doctor who

opined that Plaintiff was moderately impaired in her work-related activities because of her

anxiety and depression and was unable to handle her own funds. The ALJ emphasized the GAF

score given by Dr. Link rather than the limitations she expressed, engaging in the kind of

“cherry-picking” of mental health evidence the Seventh Circuit Court of Appeals warns against. 

See, e.g., Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011) (“[A] person who suffers from a

mental illness will have better days and worse days, so a snapshot of any single moment says

little about her overall condition.”). The ALJ did not address the work-related limitations in Dr.

Link’s opinion. Although ALJs “are not bound by findings made by State agency or other

program physicians and psychologists, [] they may not ignore these opinions and must explain

10
the weight given to the opinions in their decisions.” SSR 96-6p, 1996 WL 374180, at *2 (July 2,

1996). 

Plaintiff also argues that the ALJ also failed to specifically address the portions of

treating physician Dr. Hough’s report that opined that Plaintiff would be off-task at work for

25% or more of the time because of her mental impairments. Again, an ALJ may not simply

ignore an opinion that addresses a plaintiff’s ability to work, but must “evaluate all the evidence

in the case record to determine the extent to which the opinion is supported by the record.” SSR

96-5p, 1996 WL 374183, at *3, *5 (July 2, 1996); see also Roddy, 705 F.3d at 636 (“Even

though the ALJ was not required to give [the treating physician]’s opinion [that the claimant

could not handle a full-time job] controlling weight, he was required to provide a sound

explanation for his decision to reject it.”). Although the ALJ gave reasons for disregarding Dr.

Hough’s fibromyalgia diagnosis, as discussed above, he did not address Dr. Hough’s treatment

of Plaintiff’s depressive disorder or the portions of his Medical Source Statement that dealt with

her mental limitations. The ALJ was required to take into account Dr. Link’s and Dr. Hough’s

opinions and give reasons for ignoring them. He failed to do so; a failure that is particularly

troubling since their opinions are inconsistent with the ALJ’s finding that Plaintiff did not suffer

from a severe mental impairment.

Plaintiff also argues that the ALJ failed to explain how he considered the limitations

caused by Plaintiff’s combination of impairments. “Although [] impairments may not on their

own be disabling, that would only justify discounting their severity, not ignoring them

altogether. Moreover, . . . an ALJ must consider the combined effects of all of the claimant’s

impairments, even those that would not be considered severe in isolation.” Terry v. Astrue, 580

11
F.3d 471, 477 (7th Cir. 2009); see also Martinez v. Astrue, 630 F.3d 693, 698 (7th Cir. 2011)

(“Even if each problem assessed separately were less serious than the evidence indicates, the

combination of them might be disabling.”); Getch v. Astrue, 539 F.3d 473, 483 (7th Cir. 2008)

(“[A]n ALJ is required to consider the aggregate effects of a claimant’s impairments, including

impairments that, in isolation, are not severe.”) (citing 20 C.F.R. § 404.1523; Golembiewski v.

Barnhart, 322 F.3d 912, 918 (7th Cir. 2003)). 

In particular, Plaintiff argues that the ALJ failed to consider whether Plaintiff’s obesity,

in combination with her other impairments, caused limitations in Plaintiff’s ability to work. 

“Social Security Ruling 02-1p requires an ALJ to consider the exacerbating effects of a

claimant’s obesity on her underlying conditions (even if the obesity is not itself a severe

impairment) when arriving at a claimant’s RFC,” Hernandez v. Astrue, 277 F. App'x 617, 623-24

(7th Cir. 2008) (citing SSR 02-1p, 2002 WL 34686281 (Sept. 12, 2002)) (other citations

omitted), and the Court notes that in this case the ALJ concluded that Plaintiff’s obesity was a

severe impairment, making the determination even more important. See also Gentle v. Barnhart

, 430 F.3d 865, 868 (7th Cir. 2005) (finding that, even if obesity is not a severe impairment itself

and “merely aggravates a disability caused by something else[,] it still must be considered for its

incremental effect on the disability”). Ruling 02-1p provides that in evaluating obesity in

assessing RFC, “[a]n assessment should also be made of the effect obesity has upon the

individual’s ability to perform routine movement and necessary physical activity within the work

environment.” SSR 02-1p, at *6. Further, Ruling 02-1p explains that an ALJ’s RFC

determination must consider an individual’s maximum remaining ability to do sustained work

activities in an ordinary work setting on a regular and continuing basis. Id. (citing SSR 96-8p). 

12
On remand, the ALJ is directed to consider the combination of Plaintiff’s impairments, even

those that are not severe in isolation, and to specifically address the impact her obesity and her

mental health problems have on her ability to perform work. 

This matter is being remanded for a new RFC. On remand, the ALJ is directed to fully

consider each of the Plaintiff’s alleged impairments, alone and in combination, and provide a

logical bridge from the evidence to his conclusion. He must avoid substituting his own medical

judgment for that of the medical professionals in the record and include a thorough description

of the medical and mental health evidence on which he bases his determination and an

explanation of how he weighed the opinions of Plaintiff’s treating and examining healthcare

providers.

B. Credibility Assessment

Plaintiff argues that the ALJ improperly evaluated Plaintiff’s credibility. The

Commissioner argues that the ALJ’s opinion is supported by substantial evidence.

The ALJ must weigh the claimant’s subjective complaints, the relevant objective medical

evidence, and any other evidence of the following factors:

(i) [The claimant’s] daily activities;

(ii) The location, duration, frequency, and intensity of [] pain or

other symptoms;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any

medication . . . ;

(v) Treatment . . . for relief of [] pain or other symptoms;

(vi) Any measures . . . used to relieve your pain or other symptoms

. . . ; and

(vii) Other factors concerning [] functional limitations and

restrictions due to pain or other symptoms.

13
20 C.F.R. § 404.1529(c)(3). In making a credibility determination, Social Security Ruling 96–7p

states that the ALJ must consider the record as a whole, including objective medical evidence,

the claimant’s statement about symptoms, any statements or other information provided by

treating or examining physicians and other persons about the conditions and how they affect the

claimant, and any other relevant evidence. See SSR 96-7p, 1996 WL 374186 (Jul. 2, 1996).

An ALJ is not required to give full credit to every statement of pain made by the claimant

or to find a disability each time a claimant states he or she is unable to work. See Rucker v.

Chater, 92 F.3d 492, 496 (7th Cir. 1996). However, Ruling 96-7p provides that a claimant’s

statements regarding symptoms or the effect of symptoms on his ability to work “may not be

disregarded solely because they are not substantiated by objective evidence.” SSR 96-7p at *6. 

An ALJ’s credibility determination is entitled to substantial deference by a reviewing court and

will not be overturned unless the claimant can show that the finding is “patently wrong.” 

Prochaska, 454 F.3d at 738.

The ALJ found Plaintiff less than credible in part because she did not seek additional

treatment, specifically noting that she did not go to the emergency room, consult a specialist, or

have surgery. However, Plaintiff argues that the ALJ did not ask Plaintiff about her failure to

obtain this additional treatment, despite evidence in the record, such as her lack of insurance,

that there might be explanations other than her lack of credibility. The ALJ “must not draw any

inferences about an individual’s symptoms and their functional effects from a failure to seek or

pursue regular medical treatment without first considering any explanations that the individual

may provide” and “may need to recontact the individual or question the individual at the

administrative proceeding in order to determine whether there are good reasons the individual

14
does not seek medical treatment or does not pursue treatment in a consistent manner.” SSR 96-

7p, at *7; see also Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012) (“Although a history of

sporadic treatment or the failure to follow a treatment plan can undermine a claimant's

credibility, an ALJ must first explore the claimant's reasons for the lack of medical care before

drawing a negative inference.”); Craft, 539 F.3d at 679 (“[T]he ALJ ‘must not draw any

inferences’ about a claimant’s condition from this failure [to follow a treatment plan] unless the

ALJ has explored the claimant’s explanations as to the lack of medical care.”) (quoting SSR 96-

7p). When the ALJ questioned Plaintiff about her failure to seek additional mental health

treatment, she stated that she was unable to afford it (AR 52), but he did not appear to take that

into account in his analysis of her depression and did not ask Plaintiff about the gaps in her

physical treatment on which he based his conclusion that she was less than credible. See Craft,

539 F.3d at 679 (“Here, although the ALJ drew a negative inference as to [the plaintiff]’s

credibility from his lack of medical care, she neither questioned him about his lack of treatment

or medicine noncompliance during that period, nor did she note that a number of medical records

reflected that [the plaintiff] had reported an inability to pay for regular treatment and

medicine.”). 

Plaintiff also argues that the ALJ failed to consider the side effects of Plaintiff’s

medications, despite her testimony that they made her sleepy and lethargic, in contravention of

the requirement that he take these into account. See SSR 96-7p,*7 (including “side effects of

any medication the individual takes or has taken to alleviate pain or other symptoms” as one of

the types of evidence “that the adjudicator must consider in addition to the objective medical

evidence when assessing the credibility of an individual’s statements”) (citing 20 CFR

15
404.1529(c) and 416.929(c)). In addition, Plaintiff argues that the ALJ failed to account for

observations of agency employees that support her allegations of mental health impairments. An

agency employee called Plaintiff and reported, among other things, that Plaintiff had a flat tone

and was at times close to tears. AR 196. The ALJ is required to “consider any observations

about the individual recorded by Social Security Administration (SSA) employees during

interviews, whether in person or by telephone,” but this information was not addressed by the

ALJ in his analysis.

The ALJ improperly relied on Plaintiff’s failure to seek treatment to find her less than

credible and failed to address other factors he should have included in his credibility assessment. 

On remand, the ALJ is directed to fully consider Plaintiff’s testimony and the entirety of the

record in compliance with the applicable directives.

CONCLUSION

Based on the foregoing, the Court hereby GRANTS the relief requested in Brief

Plaintiffs Brief in Support of Her Motion to Reverse the Decision of the Commissioner of Social

Security (sic) [DE 19] and REMANDS this matter for further proceedings consistent with this

opinion.

SO ORDERED this 12th day of January, 2015.

s/ John E. Martin 

MAGISTRATE JUDGE JOHN E. MARTIN

UNITED STATES DISTRICT COURT

cc: All counsel of record

16