UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

ANTONIO D. FRIERSON, SR., )

Plaintiff, )

)

v. ) CAUSE NO.:2:14-CV-170-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 on May 20, 2014

and Plaintiff’s Memorandum in of Law [DE 15], filed by Plaintiff on September 10, 2014. Plaintiff

requests that the decision of the Administrative Law Judge be reversed and remanded for further

proceedings. On December 18, 2014, the Commissioner filed a response, and on December 31,

2014, Plaintiff filed a reply. For the following reasons, the Court grants Plaintiff’s request for

remand.

PROCEDURAL BACKGROUND

Plaintiff filed an application for Supplemental Security Income and Disability Insurance

Benefits alleging disability as of January 2, 2006, due to symptoms associated with a learning

disorder, a nervous condition, depression, and diabetes. Plaintiff’s application was denied initially

and upon reconsideration. On November 26, 2012, Administrative Law Judge (“ALJ”) Dennis R.

Kramer held a hearing at which Plaintiff, with an attorney, two medical experts and a vocational

expert (“VE”) testified. On January 30, 2013, 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 met the insured status requirements of the Social Security Act

through March 31, 2008.

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

2006, the alleged onset date.

3. The claimant has the following severe impairments: diabetes mellitus,

chronic infections of the skin, hyperglycemia, hypertension, and personality

disorder with an intermittent explosive disorder.

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

that meets or medically equals any of the listed impairments in 20 CFR 404,

Subpart P, Appendix 1.

5. The claimant has the residual functional capacity to perform sedentary work,

as the claimant can frequently lift and carry 10 pounds, stand and/or walk for

at least 2 hours of an 8 hour workday, and sit for about 6 hours of an 8 hour

workday. He has unlimited ability to push and pull with his upper extremities

but never with his lower extremities. He can never climb ladders, ropes or

scaffolds and can never kneel or crawl but can occasionally climb ramps and

stairs, as well as balance, stoop, and crouch. He must avoid concentrated

exposure to extreme cold or heat and workplace hazards such as slippery

terrain and unprotected heights. The claimant is able to understand,

remember, and carry out simple instructions; make judgments on simple

work-related decisions, and respond to usual work situations and to changes

in a routine work setting. The claimant can have only occasional interaction

with coworkers with no shared tasks, only occasional supervision, and only

occasional interaction with the public with no sustained interaction with or

close proximity to the public.

6. The claimant is unable to perform any past relevant work.

7. The claimant was 38 years old, defined as a younger individual age 18-44 on

the alleged disability onset date, and subsequently changed age category to

a younger individual age 45-49.

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

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

because the claimant is not disabled, whether or not he has transferable job

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skills.

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

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

national economy that the claimant could perform.

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

Act, since January 2, 2006.

On March 21, 2014, 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)

FACTS

Plaintiff has been diagnosed with diabetes mellitus, chronic infections of the skin,

hyperglycemia, and hypertension. On April 7, 2011, treating physician Dr. Nyongani amputated

Plaintiff’s right great toe because he had developed extensive wet gangrene, osteomyelitis, and

cellulitis in the toe and foot. Plaintiff continues to use a cane to assist in ambulation.

Plaintiff has complained of depression including significant treatment in 1999 when he

considered suicide. He states that he suffers from a learning disability, attended a special education

program for school and did not graduate from high school. He has also been diagnosed with

personality disorder with an intermittent explosive disorder. 

Plaintiff lives by himself, but needs help managing his bills and someone comes in to cook,

clean, and grocery shop. He does not know how to drive and has never had a driver’s license. 

STANDARD OF REVIEW

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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. 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)). “A reversal and remand may be required, however, if the ALJ

committed an error of law or if the ALJ based the decision on serious factual mistakes or omissions.”

 Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014) (citations omitted).

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

4
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 he suffers from a

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

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

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

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

1382c(a)(3)(A). To be found disabled, the claimant’s impairment must not only prevent him from

doing his previous work, but considering his age, education, and work experience, it must also

prevent him 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

5
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

Residual Functional Capacity (“RFC”), age, education, and experience? If yes, then the claimant

is not disabled, and the claim is denied; if no, the claimant is disabled. 20 C.F.R. §§

404.1520(a)(4)(i)-(v), 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 [his] limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001) (citing SSR 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). 

6
ANALYSIS

I. Mental Impairment

Plaintiff argues that the ALJ erred at Step 2 by finding that Plaintiff’s learning disability was

not a severe impairment, and erred at Step 3 when he failed to find that Plaintiff met Listing

12.05(B) for intellectual disability. 

The determination of whether a claimant suffers from a listed impairment comes at steps two

and three of the ALJ’s analysis. Step two of the ALJ’s analysis requires an examination of whether

the claimant has an impairment or combination of impairments that are severe. See 20 C.F.R. §§

404.1520(a)(4)(ii); 416.920(a)(4)(ii). A medically determinable impairment or combination of

impairments is severe if it significantly limits an individual’s physical or mental ability to do basic

work activities. See 20 C.F.R. §§ 404.1520(c); 416.920(c). The determination of whether a

claimant suffers from a severe condition that meets a listed impairment comes at step three of the

sequential analysis. At step three, the ALJ must determine whether the claimant’s impairments meet

an impairment listed in the appendix to the social security regulations. See 20 C.F.R. §§

404.1520(a)(4)(iii); 416.920(a)(4)(iii). An individual suffering from an impairment that meets the

description of a listing or its equivalent is conclusively presumed to be disabled. See Bowen v.

Yuckert, 482 U.S. 137, 141 (1987). In order “[f]or a claimant to show that his impairment matches

a listing, it must meet all of the specified medical criteria.” Sullivan v. Zebley, 493 U.S. 521, 530

(1990). An impairment that manifests only some of the criteria will not qualify, no matter its

severity. Id.

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Listing 12.05 describes intellectual disability and provides, in relevant part:

Intellectual disability refers to significantly subaverage

general intellectual functioning with deficits in adaptive

functioning initially manifested during the developmental

period; i.e., the evidence demonstrates or supports onset of

the impairment before age 22.

The required level of severity for this disorder is met when

the requirements in A, B, C, or D are satisfied. . . . 

B. A valid verbal, performance, or full scale IQ of 59 or less.

20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05. The ALJ concluded that there was no objective medical

evidence in the record to support a diagnosis of intellectual impairment. The ALJ based this

conclusion on the state agency consultative psychologists’s opinion that she could not determine the

accuracy of Plaintiff’s IQ result. Dr. Brown, the consultative psychologist, administered an IQ test

on which Plaintiff obtained a full-scale IQ result of 50 and was determined to be “within the

Extremely Low range,” placing him within the interval of 47-55 with 95% accuracy. AR 807. The

ALJ stated that Dr. Brown “could not determine the accuracy of the testing” and that Plaintiff

“tended to give up easily during the testing and that his work history was inconsistent with the

scores.” AR 24. The ALJ neglected to mention that Dr. Brown also stated that it was “the

professional opinion of this psychologist that the results provide a valid and reliable assessment of

[Plaintiff]’s functioning” or that the confidence interval for the score range was 95%. Dr. Brown

herself stated that the IQ test was a “valid assessment” as required by Listing 12.05. A reviewing

psychologist testified that there was an inconsistency in Dr. Brown’s statements and points out that

Dr. Brown did not provide a diagnosis of retardation, and it is this opinion that the ALJ relied upon,

despite the Code’s direction that ALJs should “give more weight to the opinion of a source who has

examined [claimant] than to the opinion of a source who has not.” 20 C.F.R. §§ 404.1527(c)(1);

8
416.927(c)(1); see also Burton v. Apfel, 1999 WL 46902, at *8 (N.D. Ill. 1999) (finding error in

failure to afford “great deference” to the opinion of the only examining psychologist). The Listing

does not require a diagnosis of retardation, only a valid IQ test with certain scores, yet the ALJ relied

on the reviewing psychologist’s opinion that Dr. Brown’s test was invalid without taking any steps

to recontact Dr. Brown to obtain any needed clarification. See SSR 96-5p, 1996 WL 374183, at *2

(July 2, 1996) (“[O]pinions from any medical source on issues reserved to the Commissioner [such

as whether an impairment meets a Listing] must never be ignored,” and an ALJ must “make every

reasonable effort to recontact such sources for clarification when they provide opinions on issues

reserved to the Commissioner and the bases for such opinions are not clear.”)

The problems with the ALJ’s assessment of Plaintiff’s mental limitations continue

throughout the opinion, as described in more detail below. The Court concludes that the ALJ’s

analysis of Plaintiff’s mental limitations was impermissibly perfunctory and remands for a more

thorough analysis of the Plaintiff’s alleged intellectual disability, including further assessments or

the recontacting of treating and examining providers, as necessary.

II. Credibility Assessment

The Social Security Regulations provide that, in making a disability determination, the

Commissioner will consider a claimant’s statement about his or her symptoms, including pain, and

how they affect the claimant’s daily life and ability to work. See 20 C.F.R. §§ 404.1529(a);

416.929(a). 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

9
evidence. See SSR 96-7p, 1996 WL 374186 (Jul. 2, 1996). Although 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, e.g., Rucker v. Chater, 92 F.3d 492, 496 (7th Cir.

1996), 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 that Plaintiff’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 entirely credible for the reasons

explained in this decision.” AR 28. This language has been criticized by the Seventh Circuit Court

of Appeals as “meaningless boilerplate” that “yields no clue to what weight the trier of fact gave the

testimony.” Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010); see also Bjornson v. Astrue, 671

F.3d 640, 645, 647 (7th Cir. 2012). The inclusion of this boilerplate language is not grounds for

remand when the ALJ otherwise provides “reasons grounded in evidence” for his credibility finding.

Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012). In this case, there are no such reasons grounded

in evidence: most of the ALJ’s opinion is statements of excerpts from the medical records and

agency reports rather than a clear explanation of the weight given to them or given to Plaintiff’s

claims. There are a few statements that could be construed as commenting on Plaintiff’s veracity,

but even if generously construed as credibility determinations, these statements leave much to be

desired.

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For example, the ALJ cited to a physician’s notation that Plaintiff used a cane, then wrote,

“[B]ut there is no record of anyone prescribing the cane.” AR 30. It is not apparent to the Court

how Plaintiff’s use of ambulatory devices makes his allegations of pain and limitation less credible

rather than bolstering them. See Parker, 597 F.3d at 922 (“Absurdly, the administrative law judge

thought it suspicious that the plaintiff uses a cane, when no physician had prescribed a cane. A cane

does not require a prescription.”); SSR 96-7p at *6 (“[A]llegations concerning the intensity and

persistence of pain or other symptoms may not be disregarded solely because they are not

substantiated by objective medical evidence.”). The regulations specifically remind ALJs to take

into account in their credibility determination that, for example, “[t]he individual’s daily activities

may be structured so as to minimize symptoms to a tolerable level or eliminate them entirely,

avoiding physical or mental stressors that would exacerbate the symptoms” and “the individual’s

symptoms . . . may be relieved with over-the-counter medications.” SSR 96-7p, at *8. The ALJ

failed to explain how use of non-prescribed medical devices or coping mechanisms shows that

Plaintiff’s allegations of pain are less than credible, rather than that Plaintiff uses assistive devices

because of the pain and weakness he experiences. The ALJ also did not include Plaintiff’s need for

a cane in the RFC without explanation. See, e.g., Ross v. Barnhart, 119 F. App’x 791, 795 (7th Cir.

2004) (“‘The RFC is an assessment of what work-related activities the claimant can perform despite

her limitations.’ In considering a claimant’s RFC, an ALJ is expected to take into consideration all

relevant evidence, both medical and non-medical.”) (quoting Young v. Barnhart, 362 F.3d 995, 1000

(7th Cir. 2004)); 20 C.F.R. §§ 404.1545(a)(1), (a)(3); 416.1545(a)(1), (a)(3). 

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 Even more troubling is the ALJ’s characterization of Plaintiff as non-compliant with

treatment. When considering non-compliance with treatment as a factor in determining whether a

claimant’s statements regarding his symptoms are credible, an ALJ is also required make a

determination about whether non-compliance with treatment is justified and develop the record

accordingly. See SSR 96-7p at *7; 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 unless the ALJ has explored the claimant’s

explanations as to the lack of medical care.”) (quoting SSR 96-7p). The ALJ did not ask Plaintiff

about his compliance with treatment, and the credibility section of his opinion does not address any

reasons for noncompliance, such as inability to afford treatment or the fact that failure to comply

with treatment may be a sign of mental disability rather than a reason to discount its severity. See,

e.g., Kangail v. Barnhart, 454 F.3d 627, 630 (7th Cir. 2006) (“[M]ental illness . . . may prevent the

sufferer from taking her prescribed medicines or otherwise submitting to treatment.”). 

The ALJ’s multiple descriptions of Plaintiff’s noncompliance with treatment is particularly

troubling given his earlier finding that Plaintiff had no marked limitations in daily living or episodes

of decompensation. Although Plaintiff was apparently not hospitalized for mental illness or mental

impairment during the time in question, Plaintiff was hospitalized for amputation of his toe,

apparently at least partially as a result of his inability to remain compliant with his diabetes

treatment. The ALJ found that Plaintiff’s mental impairment was less believable because Plaintiff

stated that his learning disability did not hinder him, that he did not consistently report the fact that

12
he had been in special education as a child, and he has not sought treatment for his mental disorder. 

Especially viewed in light of the multiple indications of low intelligence and memory difficulties

in the record, rather than indicating that his diabetes and other health problems are less severe than

claimed, it appears that Plaintiff’s difficulties with treatment may indicate that his mental abilities

are more impaired than he reported.

The ALJ also refers several times to Plaintiff’s daily activities, including several mentions

of Plaintiff’s self-report of his ability to watch unspecified thirty-minute television shows. The

record is also replete with references to Plaintiff’s need for help with things like cooking, cleaning,

and shopping, although he is apparently able to take care of his personal hygiene. To the extent that

the ALJ is implying that Plaintiff’s extremely limited daily activities indicate an ability to work, the

Court notes that the Seventh Circuit Court of Appeals has repeatedly criticized credibility

determinations that equate a plaintiff’s ability to take care of his children and household chores

(activities Plaintiff required assistance with) with the ability to work. See, e.g., Bjornson, 671 F.3d

at 647; Punzio v. Astrue, 630 F.3d 704, 712 (7th Cir. 2011); Zurawski, 245 F.3d at 887; Gentle v.

Barnhart, 430 F.3d 865, 867 (7th Cir. 2006). 

The ALJ did not make a separate, thorough credibility finding. His “post-hoc statement

turns the credibility determination process on its head . . . rather than evaluating the [Plaintiff’s]

credibility as an initial matter in order to come to a decision on the merits.” Brindisi v. Barnhart ,

315 F.3d 783, 788 (7th Cir. 2003). The case is being remanded for a new, thorough credibility

finding. The ALJ is reminded that the regulations require him to weigh the claimant’s subjective

complaints, the relevant objective medical evidence, and any other evidence of the following factors:

(1) [Plaintiff’s] daily activities;

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

13
other symptoms;

(3) Precipitating and aggravating factors;

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

medication . . . ;

(5) Treatment, other than medication, [Plaintiff] . . . received for

relief of [] pain or other symptoms;

(6) Any measures . . . used to relieve [] pain or other symptoms

. . . ; and

(7) Other factors concerning [] functional limitations and

restrictions due to pain or other symptoms.

20 C.F.R. §§ 404.1529(c)(3); 416.929(c)(3). 

III. Residual Functional Capacity

The ALJ’s RFC finding must be supported by substantial evidence. Clifford, 227 F.3d at

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

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

to assess RFC.” SSR 96-8p at *5. In addition, he “must consider limitations and restrictions

imposed by all of an individual’s impairments, even those that are not ‘severe’” because they

“may—when considered with limitations or restrictions due to other impairments—be critical to the

outcome of a claim.” Id. Although the ALJ need not discuss all the evidence, he must consider all

the evidence that is relevant to making a determination of disability and give enough information

to allow for meaningful review. Clifford, 227 F.3d at 870; Young, 362 F.3d at 1002; SSR 96-8p. 

Furthermore, an ALJ’s “RFC assessment must include a discussion of why reported

symptom-related functional limitations and restrictions can or cannot reasonably be accepted as

consistent with the medical and other evidence.” SSR 96-8p at *7. “SSR 96-8p requires that

medical source opinions must always be considered and addressed by the ALJ in the RFC

assessment, and if it conflicts with the ALJ’s conclusions then the ALJ must explain why it was not

adopted.” Conrad v. Barnhart, 434 F.3d 987, 991 (7th Cir. 2006). 

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Plaintiff argues that the ALJ erred in relying on non-examining physicians instead of

Plaintiff’s treating physicians when determining his RFC. In particular, Plaintiff argues that the ALJ

impermissibly discounted the opinion of Dr. Nyongani, who completed a medical source statement

laying out Plaintiff’s functional abilities as the result of his physical impairments. 

 “A treating physician’s opinion regarding the nature and severity of a medical condition

is entitled to controlling weight if it is well supported by medical findings and not inconsistent with

other substantial evidence in the record.” Gudgel, 345 F.3d at 470 (citing 20 C.F.R. §

404.1527(d)(2)); see also Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007). Being “not

inconsistent” does not require that opinion be supported directly by all of the other evidence “as long

as there is no other substantial evidence in the case record that contradicts or conflicts with the

opinion.” SSR 96-2p, 1996 WL 374188, at *3 (July 2, 1996). To be “substantial,” conflicting

evidence “need only be such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Id.; see also Schmidt v. Barnhart, 395 F.3d at 744. Furthermore, an ALJ

must specifically address opinions that address a plaintiff’s ability to work, and “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 Hamilton v. Colvin, 525 F. App’x

433, 438-39 (7th Cir. 2013) (remanding in part for failure to address conflict between the RFC and

physicians’ opinions about the plaintiff’s capacity) (“While the ALJ is right that the ultimate

question of disability is reserved to the Commissioner, a treating physician’s opinion that a claimant

is disabled ‘must not be disregarded.’”) (quoting SSR 96–5p) (citing 20 C.F.R. § 416.927(e)(2));

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

15
provide a sound explanation for his decision to reject it.”). 

The ALJ discounted the medical source statement of treating provider Dr. Nyogani as

“inconsistent with the record” because “the claimant can sit for the requirements of sedentary work”

and “has further not shown an inability to sit or stand for the 2 hours.” AR 32. The ALJ did not cite

to any other medical evidence in the record as inconsistent other than a report of “intact grip

strength, full strength in his extremities other than his lower right extremity, and normal fine finger

manipulation,” AR 32, and did not explain how reports of arm and finger strength related to

Plaintiff’s ability to sit or stand. The ALJ did not point to any evidence of another medical source

opining as to the length of time that Plaintiff could sit or stand, but apparently discounted Dr.

Nyongani’s report based on his own assessment of Plaintiff’s RFC.

Although medical evidence “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 failed to give controlling weight to the

treating physician’s opinion regarding the nature and severity of Plaintiff’s impairments without

explaining how his opinion was inconsistent with other substantial evidence in the record, did not

identify any medical opinion from a treating or examining physician to which he gave greater

weight, and failed to adequately identify the evidence on which he based the conclusion that Plaintiff

was capable of performing the range work as described in his opinion. 

The ALJ also 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

16
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 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 well be totally

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)). The ALJ failed to consider Plaintiff’s mental limitations and obesity in combination with

his other impairments. “Social Security Ruling 02-1p requires an ALJ to consider the exacerbating

effects of a claimant’s obesity on h[is] 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);

see also Gentle, 430 F.3d at 868 (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”). 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 his obesity, intellectual impairments, and mental health problems have on his ability to

perform work. 

On remand, the ALJ is directed to fully weigh the medical evidence, including an appropriate

analysis of the evidence from Plaintiff’s treating and examining physicians, and explain his decision

in a weigh that provides for meaningful review.

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IV. Hypothetical to Vocational Expert 

The Court is also concerned by the questions posed to the VE. When an ALJ relies on

testimony from a VE to make a disability determination, the ALJ must incorporate all of the

claimant’s limitations supported by medical evidence in the record. See Indoranto v. Barnhart, 374

F.3d 470, 474 (7th Cir. 2004); see also Young, 362 F.3d at 1003 (“a hypothetical question to the

vocational expert must include all limitations supported by medical evidence in the record”);

Kasarsky v. Barnhart, 335 F.3d 539, 543 (7th Cir. 2003) (“Furthermore, to the extent the ALJ relies

on testimony from a vocational expert, the question posed to the expert must incorporate all relevant

limitations from which the claimant suffers.”). If the VE is unaware of all of the Plaintiff’s

limitations, he may refer to jobs the Plaintiff cannot perform, resulting in an incorrect disability

determination. Kasarsky, 335 F.3d at 543.

Where there are limitations in concentration, persistence, and pace, these limitations must

be incorporated into the hypothetical posed to the VE, although there is not “a per se requirement

that this specific terminology (‘concentration, persistence, and pace’) be used in the hypothetical in

all cases.” O’Connor-Spinner, 627 F.3d at 619. A hypothetical that does not include these terms may

still be sufficient if it is “manifest that the ALJ’s alternative phrasing specifically excluded those

tasks that someone with the claimant’s limitations would be unable to perform.” Id.

In this case, the ALJ found that Plaintiff had moderate difficulties with maintaining

concentration, persistence or pace, AR 26; however, it is not clear whether the ALJ included the

limitation in his RFC, or if the VE’s testimony would have been different if provided these

limitations. Restricting Plaintiff to sedentary work with limited interaction with coworkers or the

public does not account for his moderate limitations in concentration, persistence, and pace. See

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Young, 362 F.3d at 1004 (concluding that a limitation of “simple, routine, repetitive, low stress work

with limited contact with coworkers and limited contact with the public” was inadequate to take into

account the claimant’s limitations). 

The case is being remanded for other reasons described above, and new VE testimony will

need to be obtained based on the appropriate RFC findings. The ALJ is cautioned that he must

incorporate all relevant limitations in his questioning of the VE, suggests that on remand the ALJ

fully explain how he accounted for Plaintiff’s moderate imitations in concentration, persistence, and

pace in his RFC and incorporate them into his hypothetical to the VE. 

CONCLUSION

For the foregoing reasons, the Court hereby GRANTS the relief requested in Plaintiff’s

Memorandum in of Law [DE 15] and REMANDS this matter for further proceedings consistent

with this opinion.

SO ORDERED this 2nd day of September, 2015.

s/ John E. Martin 

MAGISTRATE JUDGE JOHN E. MARTIN

UNITED STATES DISTRICT COURT

cc: All counsel of record

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