IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

KIRK W. STEPHENS )

)

Plaintiff, )

)

VS. ) CAUSE NO. 1:13-CV-66 

)

CAROLYN W. COLVIN, )

Acting Commissioner )

of Social Security )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court for review of the

Commissioner of Social Security's decision denying Supplemental

Security Income (“SSI”) to Plaintiff, Kirk W. Stephens

(“Stephens”). For the reasons set forth below, the Commissioner

of Social Security's final decision is REVERSED and this case is

REMANDED for proceedings consistent with this opinion pursuant to

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

BACKGROUND

On May 22, 2008, Stephens applied for SSI under Title XVI of

the Social Security Act, 42 U.S.C. § 1381 et seq. This

application was denied initially on July 15, 2008. Stephens

filed a new application for SSI on March 31, 2010, alleging

disability beginning January 5, 2007. This claim was denied

-1-
initially on July 17, 2010, and upon reconsideration on November

10, 2010. In response, Stephens filed a written request for a

hearing on January 7, 2011. 

On September 16, 2011, Stephens appeared with counsel before

Administrative Law Judge (“ALJ”) Yvonne K. Stam (“Stam”) in Fort

Wayne, Indiana. Stephens testified at the hearing, as did Robert

S. Barkhaus, Ph.D., a vocational expert (“VE”). On October 24,

2011, the ALJ issued a decision finding Stephens not disabled. 

(Tr. 16-24).

Stephens requested that the Appeals Council review the ALJ's

decision, and this request was denied. As a result of the

denial, ALJ Stam's decision became the Commissioner's final

decision. See 20 C.F.R. § 422.210(a). Stephens has initiated

the instant action for judicial review of the Commissioner's

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

DISCUSSION

Stephens was born on May 23, 1957, and was 49 years old at

the date of the alleged disability onset, and 54 at the time of

the ALJ's decision. He has a ninth grade education. Stephens'

past relevant work experience includes work as a taxi dispatcher

and security officer. 

Plaintiff initially alleged that he suffered from the

following medical conditions: type 2 diabetes, hypertension,

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stage three chronic kidney disease, heart disease, back injury,

asthma, and arthritis. (Tr. 72, 187). He later alleged that he

also suffered from morbid obesity, COPD, thoracic degenerative

disc disease, lumbar spondylosis, edema in the feet and lower

legs, urinary and fecal incontinence, sleep apnea, and side

effects from his medications. The medical evidence can be

summarized as follows: 

Stephens was diagnosed with Type 2 diabetes and hypertension

at least as early as August of 2004. (Tr. 228-29). He received

regular treatment for these conditions for several years. (Tr.

228-40). 

 Dr. Kinzi Stevenson examined Stephens on June 28, 2008, after

Stephens filed his first application for benefits, at the request

of the state disability determination agency. (Tr. 241-44).

Stephens reported to Dr. Stevenson that he had been diagnosed

with diabetes about ten years earlier and hypertension ten to

twelve years earlier. (Tr. 241). Dr. Stephenson found Stephens

“positive for vision loss, glasses, vertigo, epistaxis,

pneumonia, wheezing, murmur, chest pain, edema, palpitations, and

hernia.” (Tr. 242). Dr. Stephenson found that Stephens

“ambulates normally” and was able to get on and off the exam

table and chair without trouble. (Tr. 242). He also found that

Stephens had 5/5 handgrip strength and motor strength of 5/5 in

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upper and lower extremities bilaterally. (Tr. 243). According

to Dr. Stevenson: 

The patient was very cooperative and did seem

to put forth good effort during the exam. I

could not appreciate any limitations in

sitting, lifting, carrying, seeing, hearing

or speaking. There appears to be very mild

neuropathy present, however he still appears

able to walk long distances and on uneven

terrain. The patient does not use any

assistive device for ambulation. ... The

patient complains of chest pain and it is

suggestive of angina. 

(Tr. 244). 

In June of 2009, Dr. Steven Orlow performed a left heart

catheterization. (Tr. 249-52). He found mild to moderate

coronary artery disease and recommended medical management. (Tr.

249). 

Also in June of 2009, Stephens saw Dr. Mark Meier, M.D. 

(Tr. 328-29). Stephens reported “a constellation of symptoms

which include fatigue and shortness of breath” as well as chest

discomfort. (Tr. 328). Dr. Meier’s impression was:

1. Exertional chest discomfort with dyspnea,

concerning for unstable angina.

2. Multiple risk factors including diabetes,

hypertension, obesity, history of tobacco

use, and dyslipidemia.

3. Chronic renal insufficiency, creatinine

1.5. 

(Tr. 329). Dr. Meier indicated Stephens needed a cardiac

catheterizaiton and nonselective renal angiogram. (Tr. 329). He

-4-
prescribed nitroglycein and directed him to see a dietician for

consultation regarding diet and weight loss. (Tr. 329). 

On July 28, 2009, Stephens was seen by Hector Perez, M.D. at

the vascular medicine clinic. (Tr. 326-27). Dr. Perez

calculated Stephens’ BMI at 41. (Tr. 326). Dr. Perez’

impressions were: 

1. Hypertension, suboptimally controlled.

2. Dyspnea on exertion associated with chest tightness.

3. Known nonobstrutive coronary artery disease with a 60%

circumflex lesion.

4. Hyperlipidemia.

5. Stage III chronic kidney disease.

6. History of tobacco abuse, currently abstaining.

7. Asthma. 

(Tr. 326).

A nuclear cardiology exam was performed in May of 2010 due

to coronary artery disease, dyspnea on exertion, and chest pain. 

(Tr. 411-12). The study revealed normal myocardial perfusion and

function without regional variation and a normal stress ECG

response. (Tr. 411). 

In June of 2010, Stephens was seen by David Ringel, D.O.,

for a Disability Determination Examination. (Tr. 412-15). 

Stephens reported that he had been diagnosed as having heart

disease with a 65% blockage. (Tr. 412). Stephens' hypertension

was “well controlled” at the time. (Tr. 412). He reported

arthritis in both knees, right ankle, shoulders, and mildly in

his hands. (Tr. 412). According to the report, Stephens could

dress and make meals, but could only stand for five to six

-5-
minutes and a total of less than thirty minutes over an eight

hour period. (Tr. 412). Stephens could only lift up to fifteen

pounds and could only drive a car for up to an hour. (Tr. 412). 

He is able to do household chores and grocery shopping, but he

needs “slight adjustments and some assistance.” (Tr. 413).1 

Dr. Ringel found Stephens to have a slightly impaired gait,

and that he moaned as he pulled himself out of his chair. (Tr.

413). Stephens had edema of the feet and lower legs. (Tr. 413). 

Stephens' grip strength was 4/5 on his right hand, and 3/5 on his

left hand. (Tr. 413). He has full range of motion with his

cervical spine, but has restrictions in his lumbar spine, and he

is only able to do a partial squat with pain. (Tr. 413). Dr.

Ringel attributed most of Stephens’ physical symptoms to his back

injury. (Tr. 415). He also noted that Stephens walked with a

slight limp but did not need an assistance device. (Tr. 415). 

Furthermore, he found that Stephens suffered from “some loss of

find motor control of both hands.” (Tr. 415). 

X-rays of Stephens left hand and wrist showed moderate to

advanced degenerative changes in June of 2010. (Tr. 432, 434-

35). An x-ray of Stephens’ lumbar spine from July of 2010 showed

degenerative disc changes from T10-T11 through L1-L2, but no

change since a previous x-ray. (Tr. 418, 430-31). X-rays of

1 Each of the limitations referenced in this paragraph appears to be based on

Stephens’ self-report rather than the doctor’s examination of Stephens. (Tr. 412).

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Stephens’ knees showed a small patellar spur or osteophyte on the

right knee but were otherwise normal. (Tr. 429). 

On July 6, 2010, Stephens saw Dr. Sanjay Jain in the

pulmonary and sleep-disorders clinic. (Tr. 444-46). He

diagnosed moderately severe COPD, probable concomitant sleep

apnea, obesity, hypertension, diabetes mellitus, chronic kidney

disease, and allergic rhinitis. (Tr. 445). He recommended a

sleep study; that study confirmed obstructive sleep apnea. (Tr.

445, 454-81). 

Also in July of 2010, Dr. Sands completed a physical

residual functional capacity assessment for Stephens. (Tr 420-

27). Dr. Sands believed Stephens could lift 20 pounds

occasionally and 10 pounds frequently, stand and sit about 6

hours in an 8-hour workday, and was unlimited in his ability to

push and/or pull. (Tr. 421). Dr. Sands recommended that

Stephens be limited to occasional climbing, balancing, stooping,

kneeling, crouching, and crawling. (Tr. 422). 

On August 24, 2010, Stephens was seen by Dr. Shantunu

Kulkarni, DO. (Tr. 490-91). Dr. Kulkarni’s impression was

thoracic degenerative disc disease, lumbar pain, and lumbar

spondylosis. (Tr. 491). He recommended a lumbar facet steroid

joint injection and a home exercise program with physical

therapy. (Tr. 491).

-7-
On August 26, 2010, Stephens saw Dr. Christopher LaSalle,

M.D. (Tr. 488). Stephens reported sharp stabbing pain rated at

7 out of 10. (Tr. 488). Dr. LaSalle’s impression was “Left

Wrist Degenerative Osteoarthritis thumb CMC joint.” (Tr. 488). 

Treatment options, including surgery, were discussed. (Tr. 488). 

Dr. Eric Jenkinson, M.D. diagnosed Stephens with bilateral

knee degenerative osteoarthritis. (Tr. 482-86). In August and

September, Dr. Jenkinson performed a series of three injections

in Stephens’ knees. (Tr. 482-86). Stephens reported little

improvement in his knee pain. (Tr. 486). 

On October 12, 2010, Stephens saw Dr. Jenkinson. (Tr. 608-

12). Jenkinson diagnosed cervical and shoulder pain. (Tr. 609). 

A home exercise program was recommended to strengthen his rotator

cuff and improve function. (Tr. 609). Stephens’ BMI was 43.95. 

(Tr. 609).

Stephens is on many different medications, and the record

reflects many changes in his medication regimen. In May of 2011,

Stephens was taking asprin, benadryl, carvedilol, clonidine,

combivent, diovan, furosemide, glyburide, hydralazine,

hydrocodone-acetaminophen, levemir, loratadine, magnesium oxide,

novolog, omperazole, ProAir HFA, simvastatin, symbicort, and

tramadol. (Tr. 524).

Stephens testified that he lives in Fort Wayne, Indiana,

with his mother and uncle. (Tr. 35). He had not worked since

-8-
May of 2008. (Tr. 36). A typical day for Stephens included

taking his medicine and shots, eating meals, playing with his

dog, and watching television. (Tr. 47). He normally does not

leave town, but he drives to doctor appointments and grocery

stores. (Tr. 48). Stephens testified that his medications

caused him to be tired, and that it was hazardous when he was

driving a taxi. (Tr. 36).

Stephens testified that if he gets overexerted, which is

caused by physical activity, he has to use an inhaler due to his

COPD. (Tr. 41-42). He uses a scooter when he shops for

groceries, both because he would get out of breath and his legs

would hurt too much. (Tr. 42). He testified that he has a lot

of pain in his knees, hip, and lower back. (Tr. 42-43). 

Prostate problems cause him to take a bathroom break every hour. 

(Tr. 44). 

He testified that he can stand between five and ten minutes

before needing to take a break, and can only walk approximately

one hundred feet before needing to stop. (Tr. 45-46). He

estimates he could sit for about a half hour. (Tr. 46). He

believes he could lift about 10 pounds. (Tr. 46).

He said that his medications cause him to fall asleep two

to three times during the day. (Tr. 50). He testified that he

has difficulty looking at a computer screen for more than a half

an hour before having problems with his vision. (Tr. 51-52).

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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). 

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 evidence. 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 v. Apfel, 167 F.3d 369,

373 (7th Cir. 1999).

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

under the Social Security Act, the claimant must establish that

he is disabled. 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 has lasted or

can be expected to last for a continuous

period of not less than twelve months.

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42 U.S.C. §§ 423(d)(1)(A). To determine whether a claimant has

satisfied this statutory definition, the ALJ performs a five step

evaluation:

Step 1: Is the claimant performing substantial 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. 

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. 

20 C.F.R. §§ 404.1520(a)(4)(i)-(v) and 416.920(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 Stephens had not engaged in

any substantial gainful work since March 31, 2010, the

application date. (Tr. 18). At step two, the ALJ found that

Stephens suffered from chronic kidney disease, diabetes mellitus,

osteoarthritis, obesity, and chronic obstructive pulmonary

disease (“COPD”). (Tr. 18). 

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At step three, the ALJ found that Stephens did not have an

impairment or combination of impairments that meets or medically

equals the severity of one of the listed impairments. (Tr. 19). 

In doing so, the ALJ found that Stephens' osteoarthritis of the

spine did not meet or medically equal listing 1.04 because there

was no evidence of nerve root compression, spinal arachnoiditis,

or spinal stenosis resulting in pseudoclaudication. (Tr. 19). 

The ALJ concluded that Stephens' osteoarthritis of the knee fell

short of listing 1.02 because the listing required “gross

anatomical deformity with limitation of motion and findings on

appropriate medically acceptable imaging of joint space

narrowing, bony destruction or ankylosis of the affected joint

with inability to ambulate effectively” and the record did not

support those findings. (Tr. 19). In addition, the ALJ found

that Stephens' COPD did not meet or medically equal listing 3.02

because he did not meet the required FEVI reading. (Tr. 19). 

Finally, the ALJ found that Stephens had an “extreme” level of

obesity, and that while there was no listing that considers

obesity, the ALJ had “considered the aggravating effects of

obesity on the claimant's other impairments” as required by SSR

02-1p. (Tr. 19). 

The ALJ then found that Stephens had the residual functional

capacity to:

lift, carry, push, and pull 20 pounds

occasionally and 10 pounds frequently, sit

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for about six hours in an eight-hour workday,

stand and walk in combination for about six

hours in an eight-hour workday, occasionally

climb, balance, stoop, kneel, crouch and

crawl, and he must avoid concentrated

exposure to pulmonary irritants such as

fumes, odors, dusts, gases and poor

ventilation.

(Tr. 19). The ALJ concluded that Stephens’ “statements

concerning the intensity, persistence, and limiting effects of

these symptoms are not credible to the extent they are

inconsistent with the above residual functional capacity

assessment.” (Tr. 20).

Finally, at step four, the ALJ relied on the testimony of

the VE to conclude that the ALJ found that Stephens was capable

of performing his past relevant work as either a security

officer or a taxi dispatcher. (Tr. 23). As a result, the ALJ

found that Stephens had not been under a disability, as defined

in the Social Security Act, from March 31, 2010, through the

date of the decision. (Tr. 23-24).

Stephens believes that the ALJ committed several errors. 

Stephens argues that the ALJ failed to properly consider the

side effects of Stephens' medications, the medical opinion of

Dr. Ringel, and the effect of Stephens' obesity on his other

ailments. Stephens also believes that ALJ committed error by

ignoring certain impairments: heart disease, fecal incontinence,

arthritis of the right ankle, and loss of fine-motor control in

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his right hand. Lastly, Stephens alleges that the ALJ’s

determination that Stephens is not credible is flawed. 

Credibility

Stephens argues that the ALJ improperly discredited his

testimony in violation of SSR 96-7p by relying on meaningless

boilerplate language and failing to properly consider the seven

credibility factors. The Commissioner disagrees.

 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, when a

claimant produces medical evidence of an underlying impairment,

the ALJ may not ignore subjective complaints solely because they

are unsupported by objective evidence. Schmidt v. Barnhart, 395

F.3d 737, 745-47 (7th Cir. 2005); Indoranto v. Barnhart, 374

F.3d 470, 474 (7th Cir. 2004) (citing Clifford v. Apfel, 227

F.3d 863, 872 (7th Cir. 2000)). 

Further, “the ALJ cannot reject a claimant’s testimony

about limitations on [his] daily activities solely by stating

that such testimony is unsupported by the medical evidence.” 

Id. Instead, the ALJ must make a credibility determination that

is supported by record evidence and sufficiently specific to

make clear to the claimant, and to any subsequent reviewers, the

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

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

2003). 

In evaluating the credibility of statements supporting a

Social Security application, an ALJ must comply with the

requirements of SSR 96-7p. Steele v. Barnhart, 290 F.3d 936,

941-42 (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, 1996 WL 374186 (1996). 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

effects of any medication the individual

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 (e.g., lying flat on his or

-15-
her back, standing for 15 to 20 minutes every

hour, or sleeping on a board); and

7. Any other factors concerning the individual’s

functional limitations and restrictions due

to pain or other symptoms.

SSR 96-7p, 1996 WL 374186 (1996); C.F.R. §§ 404.1529, 416.929;

Golembiewski, 322 F.3d 912, 915-16 (7th Cir. 2003). 

Here, ALJ Stam determined that “the claimant’s medically

determinable impairments could reasonably be expected to cause

some of the alleged symptoms; however, the claimant’s statements

concerning the intensity, persistence and limiting effects of

these symptoms are not credible to the extent they are

inconsistent with the above residual functional capacity

assessment.” (Tr. 20). Nearly identical language was

criticized by the Seventh Circuit in Bjornson v. Astrue, 671

F.3d 640, 645 (7th Cir. 2012). That criticism will not be

repeated here. The boilerplate language utilized by ALJ Stam is

unhelpful at best, and by itself, such language is inadequate to

support a credibility finding. See Richison v. Astrue, No. 11-

2274, 2012 WL 377674 (7th Cir. Feb. 7, 2012). But, where

boilerplate language such as that utilized by the ALJ is

accompanied by additional reasons, a credibility determination

need not necessarily be disturbed if it is otherwise adequate. 

Id. The Commissioner argues that “the ALJ went beyond the

canned language and adequately set forth the specific reasons

-16-
for finding the claimant not credible.” (DE 18 at 9). 

According to the Commissioner:

In evaluating the credibility of Plaintiff

[sic] subjective complaints, the ALJ

properly considered numerous factors

including: Plaintiff’s alleged symptoms;

factors that exacerbated Plaintiff’s

symptoms; Plaintiff’s alleged medication

side effects; Plaintiff’s daily activities;

the physician opinions of record; the

objective clinical examination and

diagnostic test findings; the fact that many

of Plaintiff’s impairments were controlled

with treatment; and Plaintiff’s failure to

follow through with prescribed physical

therapy (Tr. 20-23). The ALJ’s credibility

assessment in this case was quite thorough

and was certainly not “patently wrong” as it

would need to be in order for this Court to

reverse it. Schmidt v. Barnhart, 395 F.3d

737, 746-47 (7th Cir. 2005); Diaz v. Chater,

55 F.3d 300, 305 (7th Cir. 1995). 

(DE 18 at 8). Other than citing generally to the section of the

ALJ’s opinion where the ALJ discusses the medical evidence and

makes her credibility determination, the Commissioner provides

no further explanation of why she believes the ALJ’s credibility

analysis addressed all the factors listed above. 

In her decision, the ALJ outlined the process for

determining a claimant’s RFC, including the need to make a

credibility finding where statements about the intensity,

persistence, or functionally limiting effects of pain or other

symptoms are not substantiated by objective medical evidence. 

(Tr. 20). The ALJ then summarized the claimant’s testimony as

follows:

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The claimant testified that he lives with

his mother and uncle. He said he has not

been able to work due to problems with

breathing, pain in his back and legs, and

prostate problems. He said he was a

dispatcher for a taxi company from 1998 to

2000, but the payroll administrator was HR

America as shown on his earnings records. 

He said he last drove a taxi in December

2007. He said he gets short of breath with

activity. Also, his legs hurt if he walks

too much. He has pain in his lower back,

hips and knees. He said that before

prostate surgery, he had leg swelling

because of difficulty urinating. Since

surgery, he has urinary urgency and

occasional incontinence about two or three

times a week. He said he needs to go to the

bathroom about once per hour. He said he

can stand five to 10 minutes, walk about 100

feet, sit for about 30 minutes, and lift and

carry 10 pounds. He said it is now harder

to climb stairs and shop for groceries than

it was when he filed his prior claim. He

said he can’t stand long enough to cook or

do dishes. He watches television, plays

with his dog, and drives to appointments.

Under questioning by his representative, he

said he had joint replacement surgery on his

left hand, and he now has pain and can’t use

it fully. His right shoulder also hurts all

the time. His medications make him tired. 

He said he doesn’t have much energy. He

falls asleep twice or more during the day. 

He said his eyes would get blurry and give

him a headache after 30 minutes of looking

at a computer screen or reading. He said he

started using a CPAP machine for his sleep

apnea, but it has not improved his daytime

fatigue symptoms. 

(Tr. 20). She then included the boilerplate language cited

earlier. (Tr. 20). The ALJ next offered this statement:

The claimant’s medical record and his

admitted activities are not consistent with

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total disability. Regarding activities, his

function report indicates that he has no

problems with personal care, cooks simple

meals, shops when necessary, plays games on

a computer, does household chores, drives to

appointments, does laundry, and mows grass

with a lawn tractor (Ex. 6E). The medical

record shows that he has several conditions

that reasonably would limit his exertional

ability, especially since he filed the

current claim, but the evidence does not

establish limitations beyond those in the

above residual functional capacity. 

(Tr. 21).

The ALJ then offered a summary of the medical evidence,

concluded that her RFC is consistent with the medical evidence,

and made no further comments regarding Stephens’ credibility.

(Tr. 21-23). 

This Court must decide whether there is a logical bridge

between the evidence outlined by the ALJ and the ALJ’s

conclusions. Here, outside of the criticized boilerplate

language, the ALJ has offered no explicit reason for finding

Stephens’ testimony not credible. Her statements suggest that,

because she believed neither the medical records nor Stephens’

activities of daily living were consistent with total

disability, she therefore thought Stephens’ reports of his

limitations of function must be less than fully credible. This

reasoning is insufficient. As the ALJ’s decision notes,

credibility determinations are made “whenever statements about

the intensity, persistence, or functionally limiting effects of

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pain or other symptoms are not substantiated by the objective

medical evidence.” (Tr. 20). Accordingly, the whole point of

the credibility determination is to determine whether the

claimant’s allegations are credible despite the fact that they

are not substantiated by the objective medical records. 

Activities of daily living are a legitimate consideration, but

the Seventh Circuit has cautioned against placing too much

weight on a claimant’s ability to engage in activities of daily

living. Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir.

2009)(the “ability to cook, clean, do laundry, and vacuum ... do

not necessarily establish that a person is capable of engaging

in substantial physical activity” and “[t]he ALJ should have

explained any inconsistencies between [the claimant’s]

activities of daily living and the medical evidence.”). 

There are comments in the relevant section of the ALJ’s

decision that relate to some of the factors an ALJ is required

to consider when determining if a claimant is credible:

Stephens’ alleged symptoms are summarized, the ALJ noted that

Stephens claimed that activity caused shortness of breath, and

the ALJ acknowledged that Stephens used a CPAP machine and

reported a need to schedule bathroom breaks at one hour

increments to avoid incontinence. The ALJ provided many details

regarding both Stephens’ testimony and the medical evidence. 

Unfortunately, she failed to link her statements to her finding

-20-
that Stephens is less than fully credible, leaving the Court to

speculate regarding her reasons - something this Court cannot

do. Furthermore, the ALJ failed to specify which of Stephens’

statements are credible and which the ALJ discredited, leaving

no basis for this Court to review whether the ALJ’s conclusion

is supported by substantial evidence. See Parker v. Astrue, 597

F.3d 920, 922 (7th Cir. 2010). See Villano v. Astrue, 556 F.3d

558, 562 (7th Cir. 2009) (because “the ALJ did not analyze the

factors required under SSR 96-7p,” “the ALJ failed to build a

logical bridge between the evidence and his conclusion that

[claimant’s] testimony was not credible.”).

One factor of particular importance in this case is the

side effects of medications. Stephens detailed his medications

and their associated side-effects in his opening brief. (Pl.

Br. 8-10). Among the many side-effects are “frequent

urination,” “extreme hunger,” “tiredness,” “drowsiness,” “back

pain,” and “difficulty breathing.” (DE 17 at 8-10). Tiredness

or drowsiness are a possible side effect of at least seven of

Stephens’ medications: carvedilol, tramadol, vicodin, symbicort,

diovan, clonidine, and omeprazole. Stephens testified at the

hearing that the medications that he is on cause him to fall

asleep a lot, which was dangerous when he worked as a taxi

driver. (Tr. 36). 

-21-
Given the sheer number of medications that Stephens takes

that list fatigue and tiredness as possible side-effects, the

ALJ was required to offer some explanation before discrediting

Stephens’ testimony regarding tiredness and fatigue. Because

the necessary connections or “logical bridge” between the

evidence and the ALJ’s determination that Stephens is less than

fully credible is lacking, this Court must remand.

Obesity

Stephens also alleges that the ALJ failed to properly

assess his extreme obesity and its effects on his other

impairments, as required by SSR 02-1p. (DE 17 at 16-20). SSR

02-1p notes that:

Obesity is a risk factor that increases an

individual’s chances of developing

impairments in most body systems. It

commonly leads to, and often complicates,

chronic diseases of the cardiovascular,

respiratory, and musculoskeletal body

systems. Obesity increases the risk of

developing impairments such as type II (socalled adult onset) diabetes mellitus-even

in children; gall bladder disease;

hypertension; heart disease; peripheral

vascular disease; dyslipidemia (abnormal

levels of fatty substances in the blood);

stroke; osteoarthritis; and sleep apnea. It

is associated with endometrial, breast,

prostate, and colon cancers, and other

physical impairments. Obesity may also

cause or contribute to mental impairments

such as depression. The effects of obesity

may be subtle, such as the loss of mental

clarity and slowed reactions that may result

from obesity- related sleep apnea. 

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SSR 02-1p, 2002 WL 34686281 (2002). This ruling provides

guidance to ALJs regarding how to evaluate obesity at steps two

through five of the sequential evaluation. At step two, an ALJ

is to find that obesity is severe “when, alone or in combination

with another medically determinable physical or mental

impairment(s), it significantly limits an individual’s physical

or mental ability to do basic work activities.” Id. 

At step three, because there is no listing for obesity,2 the

ruling instructs ALJs as follows:

[W]e will find that an individual with

obesity “meets” the requirements of a

listing if he or she has another impairment

that, by itself, meets the requirements of a

listing. We will also find that a listing

is met if there is an impairment that, in

combination with obesity, meets the

requirements of a listing. For example,

obesity may increase the severity of

coexisting or related impairments to the

extent that the combination of impairments

meets the requirements of a listing. This

is especially true of musculoskeletal,

respiratory, and cardiovascular impairments. 

It may also be true for other coexisting or

related impairments, including mental

disorders.

* * *

We may also find that obesity, by itself, is

medically equivalent to a listed

impairment[.]

* * *

2

 Or, more accurately, there is no longer a listing for obesity. Listing

9.09 was deleted in 1999. See Barthelemy v. Barnhart, 107 Fed. Appx. 689 (7th Cir.

2004). 

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We will also find equivalence if an

individual has multiple impairments,

including obesity, no one of which meets or

equals the requirements of a listing, but

the combination of impairments is equivalent

in severity to a listed impairment. For

example, obesity affects the cardiovascular

and respiratory systems because of the

increased workload the additional body mass

places on these systems. Obesity makes it

harder for the chest and lungs to expand. 

This means that the respiratory systems must

work harder to provide needed oxygen. This

in turn makes the heart work harder to pump

blood to carry oxygen to the body. Because

the body is working harder at rest, its

ability to perform additional work is less

than would otherwise be expected. Thus, we

may find that the combination of a pulmonary

or cardiovascular impairment and obesity has

signs, symptoms, and laboratory findings

that are of equal medical significance to

one of the respiratory or cardiovascular

listings.

However, we will not make assumptions about

the severity or functional effects of

obesity combined with other impairments. 

Obesity in combination with another

impairment may or may not increase the

severity or foundational limitations of the

other impairment. We will evaluate each case

based on the information in the case record. 

SSR 02-1p, 2002 WL 34686281 (2002). At steps four and five, the

ruling notes that obesity can cause limitation of function. 

Furthermore, the ruling notes that:

[t]he effects of obesity may not be obvious. 

For example, some people with obesity also

have sleep apnea. This can lead to

drowsiness and lack of mental clarity during

the day. Obesity may also affect an

individual’s social functioning.

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An 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. Individuals with obesity may

have problems with the ability to sustain a

function over time. ... In cases involving

obesity, fatigue may affect the individual’s

physical and mental ability to sustain work

activity. This may be particularly true in

cases involving sleep apnea. 

The combined effects of obesity with other

impairments may be greater than might be

expected without obesity. For example,

someone with obesity and arthritis affecting

a weight-bearing joint may have more pain

and limitation than might be expected from

the arthritis alone.

* * *

As with any other impairment, we will

explain how we reached our conclusions on

whether obesity caused any physical or

mental limitations.

SSR 02-1p, 2002 WL 34686281 (2002). 

 The Seventh Circuit has emphasized the importance of the

principles set forth in SSR 02-1p. In Martinez v. Astrue, the

Seventh Circuit found that the ALJ had committed several errors,

but that the ALJ’s gravest error was his failure to consider the

impact of the claimant’s obesity on other impairments - namely,

a bad knee. Martinez v. Astrue, 630 F.3d 693, 698 (7th Cir.

2011). “It is one thing to have a bad knee; it is another thing

to have a bad knee supporting a body mass index in excess of

40.” Id. The Seventh Circuit stressed the importance of

considering an claimant’s impairments in the aggregate. Id. 

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Similarly, in Villano v. Astrue, the Seventh Circuit held that

an “ALJ must specifically address the effect of obesity on a

claimant's limitations because, for example, a person who is

obese and arthritic may experience greater limitations than a

person who is only arthritic.” Villano v. Astrue, 556 F.3d 558,

562 (7th Cir. 2009). 

In Stephens’ case, the ALJ identified obesity as a severe

impairment at step two of the sequential analysis. (Tr. 18). 

And, at step three, the ALJ acknowledged that Stephens had a BMI

over 40 and suffered “extreme” obesity. (Tr. 19). The ALJ also

noted, without any further elaboration, that she “had considered

the aggravating effects of obesity on the claimant's other

impairments, as required by SSR 02-1P.” (Tr. 19). At step

four, the ALJ noted that Stephens had a BMI of 37.7 in June of

2008 (almost two years before his alleged onset date), and that

he weighed 278 pounds in June of 2010. (Tr. 21-22). But, in

determining Stephens’ RFC, the ALJ made no further mention of

his obesity and offered no analysis of how it might impact

limitations imposed by his other impairments. This is

especially troublesome where the ALJ found that Stephens

suffered from diabetes mellitus, osteoarthritis, and COPD - each

of which tends to be exacerbated by obesity. By failing to

articulate how Stephens' extreme obesity interacted with his

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other severe impairments, the ALJ committed error under

Martinez. 

Failure to consider the effect of obesity is subject to

harmless-error analysis. See Villano, 556 F.3d at 562 (citing

Prochaska v. Barnhart, 454 F.3d 731, 736-67 (7th Cir. 2006), and

Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004)). Here,

the Commissioner did not offer any response to Stephens’

argument regarding the ALJ’s failure to adequately address

Stephens’ obesity. In this case, reversal is required based on

other errors. Accordingly, whether this error standing alone

would have been harmless is irrelevant. On remand, Stephens’

obesity must be properly considered in accordance with SSR 02-

1p. 

Impairments not Addressed by the ALJ

Stephens alleges that the ALJ ignored his heart disease,

fecal incontinence, arthritis of the right ankle, and loss of

fine-motor control in his right hand. (DE 17 at 21).

Each impairment a claimant has must be considered in

determining whether they are disabled. The Seventh Circuit held

in Terry v. Astrue that, “[a]lthough an ALJ need not discuss

every piece of evidence in the record, the ALJ may not ignore an

entire line of evidence that is contrary to the ruling.” Terry

v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009). While an ALJ can

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discount the severity of an impairment, he should not ignore it

all together. Id. “An ALJ must consider the combined effect of

all of the claimant’s impairments, even those that would not be

considered severe in isolation.” Id.

 Likewise, in Golembiewski v. Barnhart, the Seventh Circuit

noted the following:

Incontinence constitutes an impairment under

the Social Security Act that must be

considered to determine whether an applicant

is disabled. Evidence that Golembiewski’s

bladder impairment did not interfere with

his work therefore would be a reason for the

ALJ to discount the disabling nature of the

problem, but it would not justify ignoring

the problem entirely as the ALJ did here. 

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

The Commissioner, in response to Stephens’ argument, states

that:

The ALJ did not “ignore” Plaintiff’s alleged

impairments, but reasonably found that the

record evidence did not support a finding

that those impairments were more limiting

than the ALJ found in his RFC finding. 

(DE 18 at 7). The Commissioner provides no citation to where in

the ALJ’s decision the ALJ expressed this idea. That is because

the ALJ did not. This Court can find no reference to heart

disease, fecal incontinence, arthritis of the right ankle, or

loss of fine-motor control in his right hand in the ALJ’s

decision. This Court cannot rely on the post-hoc reasoning

provided by the Commission, and it is therefore disregarded. 

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N.L.R.B. v. Kentucky River Community Care, Inc., 532 U.S. 706,

715 n.1 (2001). The Commissioner does not deny that Stephens

suffers from these impairments. The ALJ’s failure to articulate

whether Stephens has limitations due to these impairments was

error. 

CONCLUSION

For the reasons stated above, the Commissioner of Social

Security's final decision is REVERSED and this case is REMANDED

for proceedings consistent with this opinion pursuant to

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

DATED: March 18, 2014 /s/ RUDY LOZANO, Judge

United States District Court

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