UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

PATRICIA A. DIAZ, )

Plaintiff, )

)

 v. ) CAUSE NO.: 2:12-CV-46-PRC

)

CAROLYN W. COLVIN, )

Acting Commissioner of the )

Social Security Administration, )

Defendant. )

OPINION AND ORDER

This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Patricia A. Diaz on

February 1, 2012, and Plaintiff’s Memorandum in Support of Her Motion for Summary Judgment

[DE 15], filed by Plaintiff on August 7, 2012. Plaintiff requests that the February 16, 2011 decision

of the Administrative Law Judge denying her claims for disability insurance benefits (“DIB”) and

supplemental security income (“SSI”) be reversed or remanded for further proceedings. On October

16, 2012, the Commissioner filed a response, and Plaintiff filed a reply on October 30, 2012. For

the following reasons, the Court grants the relief sought.

PROCEDURAL BACKGROUND

On June 23 and 24, 2009, Plaintiff filed applications for DIB and SSI respectively, alleging

an onset date of June 1, 2005. Her applications were denied initially on September 15, 2009, and

upon reconsideration on December 11, 2009. Plaintiff timely requested a hearing, which was held

on January 5, 2011, by video, before Administrative Law Judge (“ALJ”) Kathleen Mucerino. In

appearance were Plaintiff, her son Austin Mendez, her attorney James Balanoff, and vocational

expert (“VE”) Leonard M. Fisher. The ALJ issued a written decision denying benefits on February

16, 2011. She made the following findings:
1. The claimant meets the insured status requirements of the Social Security Act

through December 31, 2012.

2. The claimant has not engaged in substantial gainful activity since June 1,

2005, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. The claimant has the following severe impairments: history of bulging

lumbar disc, with restricted range of motion; and history of arthritic changes

to spine (20 CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of impairments

that meets or medically equals one of the listed impairments in 20 CFR Part

404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,

416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, I find that the claimant has

the residual functional capacity to perform light work as defined in 20 CFR

404.1567(b) and 416.967(b) except that she can never climb ladders, ropes,

or scaffolds. She can occasionally climb ramps or stairs, and can occasionally

balance, stoop, kneel, crouch, or crawl. She can only understand, remember,

and consistently carry out short, simple, one-to-two step rote, routine

instructions or tasks. Additionally she must work in a socially-restricted

environment, having no contact with the general public, and only necessary

contact with co-workers and supervisors.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565

and 416.965).

7. The claimant was born [in 1971] and was 34 years old, which is defined as

a younger individual age 18-49, on the alleged disability onset date (20 CFR

404.1563 and 416.963).

8. The claimant has a limited education and is able to communicate in English

(20 CFR 404.1564 and 416.964).

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

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

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

transferable job skills. (See SSR 82-41 and 20 CFR Part 404, Subpart P,

Appendix 2).

10. Considering the claimant’s age, education, work experience, and residual

functional capacity, there are jobs that exist in significant numbers in the

2
national economy that the claimant can perform (20 CFR 404.1569,

404.1569(a), 416.969, and 416.969(a)).

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

Act, from June 1, 2005, through the date of this decision (20 CFR

404.1520(g) and 416.920(g)).

AR 9-17. 

On October 17, 2011, the Appeals Council denied Plaintiff’s request for review, leaving the

ALJ’s decision the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. 

Plaintiff requested and was granted additional time to file a civil action. Plaintiff filed this civil

action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the Agency’s decision.

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

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

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

U.S.C. § 405(g).

FACTS

A. Medical Evidence

Plaintiff suffers from back pain and complained of pain throughout the record. Her doctors

and other treaters found tenderness and a reduced range of motion in her lumbar spine, as well as

muscle spasms in her back. Plaintiff had an MRI of her lumbar spine done in March 2009, which

revealed degenerative disc and facet disease of the lumbar spine, compromise of bilateral lateral

recesses at L4-L5 and left neural foraminal narrowing at L4-L5. In September 2009, Plaintiff

attended a consultative examination at the request of Disability Determination Services, and the

doctor diagnosed her with history of bulging disc in the lumbar spine with restricted range of motion

and history of arthritic changes to the spine.

3
The consultative examiner reported abnormal findings including tenderness in the lumbar

region with restricted range of motion, that Plaintiff’s straight leg raise test was positive bilaterally,

that she was unable to stoop and squat, and that she could only get on and off the examination table

and stand from a sitting position with difficulty.

Plaintiff’s treating physician, Dr. Chand, completed a residual functional capacity form on

her behalf, indicating that she had a history of lumbar spine degenerative disc disease and chronic

lower back pain. The doctor opined that due to her impairments, Plaintiff could only lift less than

ten pounds and walk/stand one hour and sit two hours total in an eight-hour workday. 

B. Hearing Testimony

1. Plaintiff

Plaintiff testified that she was unable to work because she suffered from a great deal of pain.

She was most comfortable lying down and was unable to stand or sit for long periods, and her pain

made her irritable and cry at times. She had difficulty sleeping at night due to her pain, and the

medications she took made her drowsy. It was difficult to get things done due to her drowsiness from

the medications and lack of sleep. 

Plaintiff testified that she tried cortisone injections, which gave her some relief from the pain

but only on a temporary basis. She had also tried physical therapy and a back brace. She tried

working part-time in 2007 at a physical therapist’s office but the job lasted only five months because

even filing and sitting and answering the phones was too difficult. She testified that her 16-year-old

son did a majority of the housework. 

4
2. Plaintiff’s son

Plaintiff’s son testified that he did many of the household chores, including the dishes,

sweeping, mopping, laundry, helping with grocery shopping, and cleaning the bathroom, due to his

mother’s pain. He observed his mother in pain and when she tried to do something around the house

she usually ended up lying down crying. She sat in unusual positions when in pain, and he had seen

her cry from pain multiple times.

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.

5
Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 618

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

381 F.3d 664, 668 (7th Cir. 2004)). “[I]f the Commissioner commits an error of law,” the Court may

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

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

Cir. 1997)).

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

reviewing court to trace the path of her 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

6
expected to last for a continuous period of not less than twelve months. 42 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 residual

functional capacity (“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,

7
1178 (7th Cir. 2001). The RFC should be based on evidence in the record. Craft v. Astrue, 539 F.3d

668, 676 (7th Cir. 2008) (citing 20 C.F.R. § 404.1545(a)(3)). The claimant bears the burden of

proving steps one through four, whereas the burden at step five is on the ALJ. Zurawski, 245 F.3d

at 886; see also Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).

ANALYSIS

Plaintiff makes three arguments for remand of the ALJ’s decision: (1) the ALJ failed to

properly analyze the opinion of Plaintiff’s treating physician; (2) the ALJ failed to make a proper

credibility determination; and (3) the ALJ erred in accepting VE testimony that was inconsistent

with the Dictionary of Occupational Titles. The Court considers each in turn.

A. Weight to Treating Physician Opinion

Plaintiff argues that the ALJ erred by failing to properly analyze the weight given to her

treating physician. An ALJ must give the medical opinion of a treating doctor controlling weight as

long as the 

treating source’s opinion on the issue(s) of the nature and severity of [a claimant’s]

impairment(s) is well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other substantial evidence in

[a claimant’s] case record . . . . When we do not give the treating source’s opinion

controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii)

of this section, as well as the factors in paragraphs (c)(3) through (c)(6) of this

section in determining the weight to give the opinion. We will always give good

reasons . . . for the weight we give to your treating source’s opinion.

20 C.F.R. § 404.1527(c)(2); 20 C.F.R. § 416.927(c)(2); see also Schaaf v. Astrue, 602 F.3d 869, 875

(7th Cir. 2010); Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008); Hofslien v. Barnhart, 439 F.3d

375, 376 (7th Cir. 2006); SSR 96-8p, 1996 WL 374184 (Jul.2 1996); SSR 96-2p, 1996 WL 374188

(Jul. 2, 1996). In other words, the ALJ must give a treating physician’s opinion controlling weight

if (1) the opinion is supported by “medically acceptable clinical and laboratory diagnostic

8
techniques” and (2) it is “not inconsistent” with substantial evidence of record.” Schaaf, 602 F.3d

at 875. 

The referenced factors listed in paragraphs (c)(2) through (c)(6) are the length of the

treatment relationship and the frequency of examination, the nature and extent of the treatment

relationship, supportability, consistency, specialization, and other factors such as the familiarity of

a medical source with the case. 20 C.F.R. §§ 404.1527(c), 416.927(c). “[I]f the treating source’s

opinion passes muster under [§ 404.1527(c)(2)], then there is no basis on which the administrative

law judge, who is not a physician, could refuse to accept it.” Punzio v. Astrue, 630 F.3d 704, 713

(7th Cir. 2011) (internal quotation marks omitted) (quoting Hofslien, 439 F.3d at 376). Courts have

acknowledged that a treating physician is likely to develop a rapport with his or her patient and may

be more likely to assist that patient in obtaining benefits. Schmidt v. Astrue, 496 F.3d 833, 842 (7th

Cir. 2007). An ALJ is entitled to discount the medical opinion of a treating physician if it is

inconsistent with the opinion of a consulting physician or when the treating physician’s opinion is

internally inconsistent, as long as the ALJ gives a good reason. Schaaf, 602 F.3d at 875; Skarbek v.

Barnhart, 390 F.3d 500, 503 (7th Cir. 2004). 

In this case, Plaintiff’s treating physician, Dr. Chand,1 submitted an opinion consistent with

a finding of disability. Dr. Chand indicated that Plaintiff had a history of lumbar spine degenerative

disc disease and chronic lower back pain. Dr. Chand opined that, due to her impairments, Plaintiff

could only lift less than ten pounds and walk/stand one hour and sit two hours total in an eight-hour

workday. The ALJ stated that she gave Dr. Chand’s opinion “little” weight because it did not

1

 The ALJ indicated in the opinion that Exhibit 8F is from Dr. Krishna. (AR 14). However, although Dr.

Krishna’s name is typed on the form, that doctor’s name is crossed out and Dr. Chand’s name is written in; the form is

signed by Dr. Chand. (AR 555-56). At the hearing, it was also stated that the opinion was from Dr. Chand. Thus, the

Court finds that the opinion was from Dr. Chand and will be treated as such.

9
comport with the medical evidence of record, and the ALJ found that Plaintiff was not as limited as

Dr. Chand opined. The ALJ also stated that the “possibility always exists that a doctor may express

an opinion in an effort to assist a patient” and that “patients can be quite insistent and demanding

in seeking supportive notes or reports from their physicians.” (AR 14).

For several reasons, the Court finds that the ALJ failed to properly analyze Dr. Chand’s

opinion, requiring remand for further proceedings. First, the ALJ’s analysis of the opinion does not

include a discussion of the factors required by 20 CFR 404.1527(c). The ALJ did not consider that

Dr. Chand was an orthopedic surgeon and, thus, a specialist in treating back conditions. Nor did she

consider that Dr. Chand had been seeing Plaintiff since at least January 2005 and thus had seen her

the entire time between her alleged onset date of disability in June 2005 through at least February

2010. Plaintiff was frequently treated by Dr. Chand, who also worked alongside Plaintiff’s primary

care physician, Dr. Pahuja at Southeastern Medical Centers. Dr. Chand referred Plaintiff to physical

therapy for her back pain. These factors all support adopting Dr. Chand’s opinion, yet the ALJ did

not discuss them before determining that Dr. Chand’s opinion was entitled to little weight. This was

an error. See Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011); Punzio, 630 F.3d at 710; Scott v.

Astrue, 647 F.3d 734, 740 (7th Cir. 2011); Larson v. Astrue, 615 F.3d 744, 749 (7th Cir. 2010);

Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010).

Second, the ALJ failed to provide good reasons for her rejection of Dr. Chand’s opinion. The

ALJ made blanket statements, unsupported by citations to the record or Dr. Chand’s treatment

records, that Dr. Chand’s opinion did not “comport with the medical evidence of record” and that

she did not agree that Plaintiff was as limited as Dr. Chand opined. The ALJ’s conclusory,

unsupported statements do not provide a sufficient reason to reject a treating doctor’s opinion. See

10
Jelinek, 662 F.3d at 811 (“The ALJ’s decision does not allow us to conclude that he weighed the

merits of Dr. Radzeviciene’s opinion, let alone engaged in the careful analysis required by the

regulations and case law.”); Martinez v. Astrue, 630 F.3d 693, 697 (7th Cir. 2011). 

Third, the ALJ’s general statements about doctors trying to assist their patients or patients

being insistent on getting doctor reports also does not provide support for the ALJ’s rejection of Dr.

Chand’s opinion. In Punzio, the Seventh Circuit held that the ALJ made a similar error in rejecting

the treating doctor’s opinion in part because the claimant or his representative had solicited the

opinion. 630 F.3d at 712 (“The claimant bears the burden of submitting medical evidence

establishing her impairments and her residual functional capacity. . . . How else can she carry this

burden other than by asking her doctor to weigh in?”). The ALJ’s discussion is simply a general

statement about treating doctor opinions that would apply in every case in which a treating doctor

supplied an opinion. As the Seventh Circuit recognized in Punzio, the Social Security

Administration’s own regulations encourage treating doctor opinions, and the “‘Best Practices’”

section of its website “recognizes the value of this approach by urging claimants and their

representatives to submit a doctor’s statement.” Id. at 712-13.

The ALJ provided no reasoning or analysis specific to Plaintiff or Dr. Chand’s opinion in

her giving the opinion “little” weight. Although the Commissioner is correct that the ALJ set out a

narrative of the medical evidence prior to discussing the opinion evidence, there is no analysis of

or citation to this evidence by the ALJ in connection with the weight given to Dr. Chand’s opinion.

The Commissioner also suggests that the ALJ discounted Dr. Chand’s opinion because it was based

on plaintiff’s subjective complaints of pain; this reason was not given by the ALJ. The

Commissioner may not provide the ALJ’s rationalization. See Jelinek, 662 F.3d at 812. With the

11
exception of the ALJ’s summary of the opinion, the paragraph of the decision weighing Dr. Chand’s

opinion could have been picked out of any decision containing a treating physician opinion and

contains no reasoning specific to this case.

Because the ALJ failed to provide “good reasons” for giving little weight to Dr. Chand’s

opinion and because the adoption of Dr. Chand’s opinion would have found Plaintiff disabled, this

matter is remanded for a proper determination. See Scott, 647 F.3d at 739 (“An ALJ must offer

‘good reasons’ for discounting the opinion of a treating physician. . . . Here, the reasons the ALJ

gave for discounting Dr. Tate’s assessment do not meet this standard.”); Campbell, 627 F.3d at 306

(“The ALJ gave two reasons for not giving controlling or great weight to Dr. Powell’s assessment

of Campbell’s functional limitations: the absence of significant abnormal findings at the time of the

December 2005 evaluation and the failure to investigate the possible effect of alcohol on Campbell’s

functioning. Neither of these qualifies as a ‘good reason.’”).

B. Credibility

Next, Plaintiff contends that the ALJ made a conclusory disability determination and that the

reasons given by the ALJ in support of the negative credibility determination are erroneous. In

making a disability determination, Social Security Regulations provide that the Commissioner must

consider a claimant’s statements about his symptoms, such as pain, and how the claimant’s

symptoms affect his daily life and ability to work. See 20 C.F.R. §§ 404.1529(a); 416.929(a).

However, subjective allegations of disabling symptoms alone cannot support a finding of disability.

See id. In determining whether statements of pain contribute to a finding of disability, the

Regulations set forth a two-part test: (1) the claimant must provide objective medical evidence of

a medically determinable impairment or combination of impairments that reasonably could be

12
expected to produce the alleged symptoms; and (2) once an ALJ has found an impairment that

reasonably could cause the symptoms alleged, the ALJ must consider the intensity and persistence

of these symptoms. Id. 

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

evidence, and any other evidence of the following factors:

(1) The individual’s daily activities;

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

(3) Precipitating and aggravating factors;

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

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

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

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

See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). In making a credibility determination, Social

Security Ruling 96-7p provides 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 the conditions affect the claimant, and any other relevant evidence. See SSR 96-7p, 1996

WL 374186 (Jul. 2, 1996); see also §§ 404.1529(c)(1); 416.929(c)(1). 

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 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. “Because the ALJ is ‘in the best

position to determine a witness’s truthfulness and forthrightness . . . this court will not overturn an

ALJ’s credibility determination unless it is ‘patently wrong.’” Shideler v. Astrue, 688 F.3d 306, 310-

13
11 (7th Cir. 2012) (quoting Skarbek, 390 F.3d at 504-05); see also Prochaska, 454 F.3d at 738.

Nevertheless, “an ALJ must adequately explain his credibility finding by discussing specific reasons

supported by the record.” Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013) (citing Terry v.

Astrue, 580 F.3d 471, 477 (7th Cir. 2009)).

As an initial matter, Plaintiff is correct that, after setting forth Plaintiff’s allegations but

before discussing the medical and opinion evidence and ultimately conducting a credibility analysis,

the ALJ used the transitional paragraph that has come to be known as “meaningless boilerplate,”

Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012):

After careful consideration of the evidence, the undersigned finds that the claimant’s

medically determinable impairments could reasonably be expected to cause the

alleged symptoms; however, the claimant’s statements concerning the intensity,

persistence and limiting effects of these symptoms are not credible to the extent they

are inconsistent with the above residual functional capacity assessment.

(AR 12). However, an ALJ’s use of this template does not amount to reversible error if she

“otherwise points to information that justifies [her] credibility determination.” Pepper,712 F.3d at

367-68. In other words, the use of the template does not warrant remand when the ALJ gives other

reasons, grounded in evidence, to explain her credibility determination. See Filus v. Astrue, 694 F.3d

863, 868 (7th Cir. 2012). In this case, remand is warranted because most of the specific reasons

given by the ALJ for the credibility determination are unsupported by the evidence or are logically

flawed.

First, one specific reason given by the ALJ for finding Plaintiff not credible was that, despite

her allegation that she could not sit for long periods of time, Plaintiff nevertheless sat for almost 45

minutes at the hearing and portrayed no evidence of pain or discomfort. However, the ALJ

erroneously failed to acknowledge that, during the video-conference hearing, Plaintiff’s attorney

14
specifically noted that the Plaintiff was leaning way over to one side and pushing up on her chair,

and Plaintiff’s son testified that he sees her sit like that when she is in pain. The hearing began at

3:18 p.m. and ended at 3:55 p.m.; thus, it appears that even in that 37-minute time frame Plaintiff

was in pain from sitting. The ALJ neither disputed the attorney’s observations at the hearing

regarding how Plaintiff was sitting or that she appeared in pain nor did the ALJ discuss this evidence

in her decision. Thus, this factor does not support the ALJ’s credibility determination. See Allord

v. Barnhart, 455 F.3d 818, 821 (7th Cir. 2006) (noting that credibility determinations “based on

errors of fact or logic” are not binding on courts).

In finding Plaintiff not credible, the ALJ also stated that, although Plaintiff testified that she

was advised that surgery was the next step, there was no indication in the medical records that any

physician had recommended surgery. However, this inference by the ALJ that Plaintiff was not

credible simply because her doctor(s) may not have written in their notes that surgery would be the

next step is an incorrect inference. See Herron v. Shalala, 19 F.3d 329, 336 (7th Cir. 1994) (“[W]e

conclude that the ALJ based his finding on an incorrect inference.”). The ALJ does not cite anything

in support of her apparent assumption that doctors record every statement made to their patients.

Perhaps Plaintiff asked what the next step might be and her doctor said surgery—that might well be

a comment that would not appear in the doctor’s notes because the doctor was not recommending

surgery at that time. Moreover, if the ALJ questioned whether Plaintiff was telling the truth she

should have conducted further inquiry of Plaintiff at the hearing and then contacted the doctor, if

necessary, to ask if he or she did in fact indicate that surgery would be the next step before relying

on that reason to find Plaintiff not credible. See Smith v. Apfel, 231 F.3d 433, 437-38 (7th Cir. 2000)

(recognizing that the ALJ has a duty to develop a full and fair record).

15
The ALJ also based her adverse credibility determination on the fact that, although Plaintiff

testified that her four-year-old daughter was very well behaved, the “fact remains that the claimant

is home alone all day with her and must care for her.” (AR 15). Plaintiff testified that on a typical

day she would lie down most of the day while her daughter watched television next to her. Her older

daughter and her son also helped care for her younger daughter. The ALJ erred in failing to consider

all of these facts and erroneously relying on the mere fact that Plaintiff cared for her young daughter

to discredit her testimony. See Martinez, 630 F.3d at 697 (holding that the ALJ “absurdly” found

that the claimant maintained an active lifestyle and cared for her five children when the evidence

showed that her mother and three of her children helped care for her); Mendez v. Barnhart, 439 F.3d

360, 362-63 (7th Cir. 2006) (finding that the ALJ unduly relied on evidence that the claimant cared

for her four children when there was evidence that she had other people helping her care for them);

Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir. 2005) (holding that the ALJ erroneously relied on

the fact that the plaintiff cared for her two small children and took care of her own personal needs

in finding her not disabled).

The ALJ also stated in the credibility determination that there were gaps in treatment of up

to six or seven months at a time. Again, there is no evidentiary support given in the decision for that

statement and no indication of when the alleged gaps in treatment took place. The ALJ also did not

ask Plaintiff about any perceived lack of or gaps in treatment at the hearing to give her a chance to

explain them. It was error for the ALJ to make a blanket assertion that Plaintiff was not credible due

to gaps in treatment with no support and to fail to ask Plaintiff if there were reasons for any gaps in

treatment. See SSR 96-7p (“[ALJs] 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

16
considering any explanations that the individual may provide. . . . The individual may be unable to

afford treatment and may not have access to free or low-cost medical services.”); Moss v. Astrue,

555 F.3d 556, 562 (7th Cir. 2009); Craft, 539 F.3d at 679. Moreover, the record reflects that, in

March 2012, Plaintiff went to the emergency room for severe pain and stated that she had been

seeing a doctor but her Medicaid had run out, suggesting that lack of funds may have been a reason

for any gap in treatment. The ALJ erred in failing to consider this evidence. See Craft, 539 F.3d at

679 (“[A]lthough the ALJ drew a negative inference as to Craft’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 Craft had reported an

inability to pay for regular treatment and medicine.”).

Lastly, the ALJ cited evidence that she believed demonstrated that Plaintiff was not credible

and exaggerated her symptoms and limitations. The ALJ stated that the MRI showed “only” minimal

degenerative disc disease or arthritis of the spine. (AR 15). However, the March 2009 lumbar spine

MRI revealed degenerative disc and facet disease of the lumbar spine, compromise of bilateral

lateral recesses at L4-L5, and left neural foraminal narrowing at L4-L5. The ALJ cited nothing in

support of her assumption that these findings were not significant or were “minimal” and could not

cause the level of pain Plaintiff reported. See Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002)

(holding that the ALJ mischaracterized evidence when he found an EEG “unremarkable” even

though there was evidence of a “slight” neurological disturbance). 

The ALJ further erred in only relying on evidence that she asserted was normal and ignoring

evidence favorable to Plaintiff. Plaintiff’s doctors and other treaters found tenderness and a reduced

range of motion in her lumbar spine upon examination, as well as muscle spasms in her back. See

17
(AR 355, 453, 455, 458, 459, 462, 464, 607, 611, 618). Although the ALJ cites to the treatment

records of Dr. Chand, see (AR 12-13), a review of the pages cited compared to the treatment records

identified by the Plaintiff makes it appear that the ALJ selectively cited from the records. The

consultative examiner also reported abnormal findings, including tenderness in the lumbar region

with restricted range of motion, that Plaintiff’s straight leg raise test was positive bilaterally, that she

was unable to stoop and squat, and that she could only get on and off the examination table and

stand from a sitting position with difficulty. Although the ALJ noted these findings along with the

consultative examiner’s less favorable findings, the ALJ did not discuss how these favorable

findings affected the credibility determination. See Binion o/b/o Binion v. Chater, 108 F.3d 780,

788-89 (7th Cir. 1997) (holding that an ALJ must not “pick and choose among the pieces of

evidence” (citing Herron, 19 F.3d at 333); see also Schreiber v. Colvin, 519 F. App’x 951, 960 (7th

Cir. 2013); Golembiewski v. Barnhart, 322 F.3d 912, 917 (7th Cir. 2003). The ALJ’s failure to

provide sufficient and logically sound reasons for finding against Plaintiff warrants remand. See

Brindisi, 315 F.3d at 787.

Plaintiff also argues that the ALJ failed to perform a proper pain analysis because the ALJ

did not analyze the factors set forth by the Seventh Circuit Court of Appeals in Zurawski:

If the allegation of pain is not supported by the objective medical evidence in the file

and the claimant indicates that pain is a significant factor of his or her alleged

inability to work, then the ALJ must obtain detailed descriptions of claimant’s daily

activities by directing specific inquiries about the pain and its effects to the claimant.

She must investigate all avenues presented that relate to pain, including claimant’s

prior work record information and observations by treating physicians, examining

physicians, and third parties. Factors that must be considered include the nature and

intensity of claimant’s pain, precipitation and aggravating factors, dosage and

effectiveness of any pain medications, other treatment for the relief of pain,

functional restrictions, and the claimant’s daily activities. 

Zurawski, 245 F.3d at 887-88 (citing Luna v. Shalala, 22 F.3d 687, 691 (7th Cir. 1994)).

18
The ALJ did not consider many of these factors when finding plaintiff not fully credible as

to her pain, despite fully discussing the normal examination findings of Dr. Smejkal and Dr. 

Macabailitaw. First, Plaintiff consistently complained of the pain. See (AR 354, 358, 454, 455, 459,

462, 558, 603, 605, 610, 618, 627, 635, 638, 644, 648). Plaintiff’s pain was described by her treaters

as “chronic” and “constant.” (AR 354, 385, 455, 618, 627). The ALJ also did not consider any

precipitating or aggravating factors. The medical records indicate, consistent with her testimony, that

Plaintiff’s pain was made worse with standing, walking, bending, lifting and prolonged sitting. (AR

54, 358, 605, 611, 618). The ALJ recognized that Plaintiff took numerous pain medications and had

tried many in the past (AR 12), but failed to explain how that did not support her allegations of

severe pain. The ALJ also recognized in the summary of the evidence that Plaintiff has had

“numerous” pain injections (AR 12) but again did not explain how that did not support Plaintiff’s

testimony. The fact that someone would undergo multiple injections in her spine does not lend

support to the ALJ’s conclusion that Plaintiff had “exaggerated symptoms.” (AR 15); see Carradine

v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004) (highlighting the improbability that the plaintiff

would have undergone extensive pain-treatment procedures solely to strengthen the credibility of

her complaints of pain and to increase her chances of obtaining disability benefits and the

improbability that she fooled the doctors, emergency-room personnel, and other medical workers

into thinking she suffered extreme pain enough that they provided her with the treatments). Although

the ALJ cited evidence that Plaintiff had fairly good pain relief from the injections (AR 12), she

ignored that Plaintiff indicated that the relief from the injections was merely temporary; in October

2012, Plaintiff had only gotten three days of relief from the previous injection, and, in the last note

from December 2012, her pain was relieved by medication 25-50% and by injection only 0-25%.

19
(AR 644, 649). The ALJ also noted in the summary of the evidence that Plaintiff was prescribed a

lumbo-sacral corset and underwent physical therapy, (AR 12), but did not explain her consideration

of these facts that further support Plaintiff’s allegations of severe pain.

As for activities of daily living, although the ALJ relied on Plaintiff’s care for her youngest

daughter in finding her not credible, the ALJ did not consider any other activities of daily living in

her analysis of Plaintiff’s pain and credibility. Plaintiff testified that she spent most of her time lying

down for pain management and that her son did a majority of the housework because she was unable

to do so. Her son similarly testified that he did most of the chores around the house. The ALJ offers

no explanation for how this testimony was considered.

Although the ALJ may ultimately come to the same conclusion regarding Plaintiff’s

credibility, remand is necessary for the ALJ to fully consider all the evidence of record and to

properly consider the required factors when determining credibility.

C. Dictionary of Occupational Titles 

Plaintiff argues that there are two errors related to the vocational expert’s testimony relied

on by the ALJ to find that Plaintiff is not disabled. First, Plaintiff argues that there is an

inconsistency between the level 2 reasoning level of the jobs identified by the VE and the limitations

in the hypothetical to simple instructions or tasks and one-to-two step, rote instructions. In the RFC,

the ALJ limited Plaintiff to being able to “only understand, remember, and consistently carry out

short, simple, one-to-two step rote, routine instructions or tasks.” (AR 10). At the hearing, the ALJ

gave a hypothetical question to the vocational expert of a person with “concentration, persistence

and pace [that] has a moderate impact making it hard for her to concentrate and keep up her

persistence and pace and therefore she can understand, remember and consistently carry chores[sic]

20
on both one to two step, [inaudible] instruction or tasks.” (AR 54). Two of the three jobs identified

by the VE were the unskilled, light jobs of cleaner and electronics worker. The VE testified at the

hearing that these jobs have an SVP of 2. 

The Dictionary of Occupational Titles (“DOT”) assigns each job a General Educational

Development (“GED”) score, which “embraces those aspects of education (formal and informal)

which are required of the worker for satisfactory job performance.” Dep’t of Labor, Dictionary of

Occupational Titles, App’x C(III). The GED scale is composed of three divisions–reasoning

development, mathematical development, and language development. Id. Reasoning Development

Level 1 provides: “Apply commonsense understanding to carry out simple one- or two-step

instructions. Deal with standardized situations with occasional or no variables in or from these

situations encountered on the job.” Id. Reasoning Development Level 2 provides: “Apply

commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal

with problems involving a few concrete variables in or from standardized situations.” Id. 

The DOT lists the electronics worker and inspector jobs identified by the VE (726.687-010

and 727.687-062, respectively) as requiring a level 2 reasoning, which Plaintiff argues is at odds

with the ALJ’s limitation of Plaintiff not only to simple instructions or tasks, but also to only

one-to-two step rote, routine instructions or tasks. This Court dealt with the identical issue in

Wiszowaty v. Astrue, No. 2:11-CV-7, 2012 WL 967415 (N.D. Ind. Mar. 21, 2012), and Pomilia v.

Astrue, No. 2:11-CV-15, 2012 WL 691628 (N.D. Ind. Mar. 2, 2012). In both cases, the Court

recognized that, although the Seventh Circuit has not addressed the issue, several courts have

concluded that a limitation to one- to two-step tasks is consistent with GED Reasoning Development

Level 1, and in both cases found that the language of the plaintiff’s limitations mirrored the language

21
of Level 1. See Wiszowaty, 2012 WL 967415, at *20 (citing case); Pomilia, 2012 WL 691628, at

*19 (same). Again, in this case, it appears to the Court that Plaintiff’s limitations are consistent with

Level 1 reasoning, which is at odds with the Level 2 reasoning listed in the DOT for the electronics

worker and inspector jobs identified by the VE.

The question then becomes, as in Pomilia and Wiszowaty, whether the ALJ should have

recognized the conflict between the testimony and the DOT at the hearing on the record in this case. 

Social Security Ruling 00-4p provides that, “[w]hen there is an apparent unresolved conflict between

VE . . . evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict

before relying on the VE . . . evidence to support a determination or decision about whether the

claimant is disabled.” SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000). The VE testified that

the Specific Vocational Preparation (“SVP”) classification for each of the jobs was 2; however, there

was no discussion of the GED reasoning level for each. In contrast with the GED categories, the

SVP refers to the “amount of lapsed time required by a typical worker to learn the techniques,

acquire the information, and develop the facility needed for average performance in a specific jobworker situation.” Dep’t of Labor, Dictionary of Occupational Titles, App’x C(II), 1991 WL

688702. At the completion of the questioning, the ALJ inquired whether the VE’s testimony about

the identified jobs was consistent with the information in the DOT, and the VE answered, “I think

generally it’s consistent.” (AR 56). 

The Seventh Circuit has held that an ALJ may rely on imperfect VE testimony if a claimant

does not question the basis for the testimony at the time of the hearing. Overman v. Astrue, 546 F.3d

456, 455-56 (7th Cir. 2008) (citing Donahue v. Barnhart, 279 F.3d 441, 446-47 (7th Cir. 2002);

Barrett v. Barnhart, 355 F.3d 1065, 1067 (7th Cir. 2004)). Plaintiff’s attorney did not raise the issue

22
of the applicable GED reasoning level of the positions at the hearing. Plaintiff argues that the ALJ

should not have relied on the VE’s testimony when the VE was not certain that the testimony was

consistent with the DOT. See Terry, 580 F.3d at 478 (citing Overman, 580 F.3d at 463) (“Because

Terry did not identify any conflict at the hearing, she would have to show that the conflict was

‘obvious enough that the ALJ should have picked up on [it] without any assistance.’”). The Court

cannot say on this record that the conflict between Plaintiff’s limitation to one- to two-step tasks and

jobs with a GED Reasoning Development Level 2 was so obvious that the ALJ should have picked

up on the conflict without the assistance of counsel. Nevertheless, because there does appear to be

a conflict and because the case is being remanded on other grounds, the ALJ is instructed to ask the

VE about the conflict, if applicable, on remand. See Gilbert ex rel. S.E. v. Colvin, No. 12 C 6550,

2013 WL 4599348, *15 (N.D. Ill. Aug. 29, 2013) (instructing the ALJ, in a case being remanded on

other grounds, to clarify how the RFC was consistent with a job that required a Level 2 reasoning

(citing Wiszowaty, 2012 WL 967415; Pomilia, 2012 WL 691628).

Second, Plaintiff argues that the remaining job identified by the VE, which was a cleaner,

also conflicts with the ALJ’s limitation on Plaintiff to no contact with the general public. Plaintiff

reasons that the vocational expert should have explained how someone cleaning in “commercial

establishments” would never have contact with the general public based on the description in the

DOT (#323.687-014). On remand, if this job is again identified by the VE, the ALJ shall inquire of

the VE whether this job is in conflict with the requirement of no contact with the general public.

CONCLUSION

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

Memorandum in Support of Her Motion for Summary Judgment [DE 15], and REMANDS the

23
Commissioner of Social Security’s final decision for further proceedings consistent with this

Opinion and Order.

So ORDERED this 30th day of September, 2013.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

cc: All counsel of record

24