UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

RAY A. HOLLISTER, )

Plaintiff, )

)

v. ) CAUSE NO.: 2:12-CV-52-PRC

)

CAROLYN W. COLVIN, )

Acting Commissioner of the Social )

Security Administration, )

Defendant. )

OPINION AND ORDER

This matter is before the Court on a Complaint for Judicial Review [DE 1], filed by Plaintiff

Ray A. Hollister on February 3, 2012, and his Plaintiff’s Social Security Memorandum [DE 21],

filed by the Plaintiff on July 20, 2012. Plaintiff requests that the Administrative Law Judge’s

decision to deny him disability benefits be reversed or, alternatively, remanded for further

proceedings. The Commissioner filed a response on September 27, 2012, and Plaintiff filed a reply

on October 12, 2012. For the following reasons, the Court grant’s Plaintiff’s request for remand.

PROCEDURAL BACKGROUND

On March 6, 2008, Plaintiff Ray A. Hollister filed an application for Disability Insurance

Benefits , alleging disability since December 23, 2001, due to trigeminal neuralgia,

glossopharyngeal neuralgia, and geniculate neuralgia. After his application was denied initially and

upon reconsideration, Plaintiff timely requested an administrative hearing. On January 19, 2011,

the administrative law judge (“ALJ”) held a hearing, at which Plaintiff (with the representation of

counsel), Plaintiff’s two daughters, and a vocational expert testified. 

 On January 28, 2011, the ALJ issued a decision denying Plaintiff’s application for benefits. 

The ALJ found that Plaintiff was not suffering from a disability, as defined in the Social Security
Act, at any time from the alleged onset date of December 23, 2001, through December 31, 2007, the

date last insured. The ALJ made the following findings:

1. Plaintiff last met the insured status requirement of the Social Security Act on

December 31, 2007.

2. Plaintiff did not engage in substantial gainful activity during the period from

his alleged onset date of December 23, 2001, through his date last insured of

December 31, 2007.

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

trigeminal and glossopharyngeal neuralgia and hypertension.

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

combination of impairments that met or medically equaled one of the listed

impairments in 20 CFR Part 404, Subpart P, Appendix 1.

5. Plaintiff had a residual functional capacity to perform medium work as

defined in 20 CFR 404.1567(c), except he can never climb

ladders/ropes/scaffolds; occasionally balance; and must avoid work hazards

(unprotected heights or dangerous moving machinery).

6. Through the date last insured, Plaintiff was unable to perform any past

relevant work.

7. As of the date last insured, Plaintiff was an individual closely approaching

advanced age.

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

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 Plaintiff has

transferable job skills.

10. Through the date last insured, considering Plaintiff’s age, education, work

experience, and residual functional capacity, there were jobs that existed in

significant numbers in the national economy that the claimant could have

performed.

Plaintiff sought review of this decision. On November 2, 2011, the ALJ’s decision became

the Commissioner’s final decision when the Appeals Council denied Plaintiff’s request for review. 

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See 20 C.F.R. § 404.955, 404.981. Under 42 U.S.C. § 405(g), Plaintiff initiated this civil action for

judicial review of the Commissioner’s final 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). 

FACTUAL BACKGROUND

I. Background

Plaintiff was born on January 6, 1949, making him 62 years old at the time of the ALJ’s

decision and 50 years old at the date of alleged onset of disability. Plaintiff has a limited education,

past work experience as an assistant annealer in a steel mill, and prior military service from 1969

to 1971.

II. Medical Evidence

On March 2, 1999, Plaintiff was diagnosed with trigeminal neuralgia (“TM”), a neurological

disorder that is characterized by sudden, electric shock-like pain around the jaw or cheek. Plaintiff

was initially prescribed increasing dosages of Neurontin but could not tolerate it, and was switched

to Tegretrol by September, 1999.

On October 23, 2001, Plaintiff reported severe pain and his Tegretol dosage was increased. 

 On November 7, 2001, Plaintiff was seen at a pain management center. He reported that his pain

ranged from 3 out of 10 to 10 out of 10, and that the pain was relieved if he refrained from talking

and decreased his activity but increased if he moved his mouth and touched his face. He was treated

with a mandibular nerve block, ordered to continue taking Tegretol, and was prescribed Elavil for

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sleep, Liboderm patches, and Vicodin for pain. 

In December 2001, Plaintiff underwent a craniotomy and decompression surgery for his TN. 

Plaintiff reported that it helped his pain.

On March 23, 2002, Plaintiff was evaluated at the University of Pittsburgh and reported that

the surgery helped his facial pain but not his tongue and ear pain. The same day surgery was

performed decompressing the ninth, tenth and fifth nerve. Scar tissue and compression of the fifth

nerve were noted, and the ninth and tenth nerves were scarred.

On May 14, 2002, a brain MRI was performed, unchanged from 1999, resulting in the

recommendation that demyelminating conditions such as multiple sclerosis or vasculitis be

considered. 

On May 21, 2002, Plaintiff received a neurosurgery evaluation. He reported that the

December 2001 surgery relieved his facial pain, but not the tongue or ear pain, which still continued. 

He reported that talking and chewing were pain triggers. Plaintiff reported occasional balance

problems. He was diagnosed with glossopharyngeal, geniculate, and trigeminal neuralgia.

Plaintiff reported continued infrequent, short-lasting shooting pain in April 2003 and October

2003. He denied complaints of dizziness or problems balancing.

On April 22, 2004, Plaintiff was seen for excruciating pain. He reported that the pain had

flared up in December, 2003, with no trigger, and had been gradually getting worse. He reported

that the pain was so intolerable that he felt like shooting himself, that he could not eat until the pain

subsided, and that pain medication did not help. 

On June 2, 2004, Plaintiff had a TN flare and reported flares with any movement, such that

he was barely able to talk. He reported that Oxycontin did not help his symptoms and was

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prescribed Tegretol. On June 18, 2004, Plaintiff was seen for an urgent care visit for another TN

flare. On June 29, 2004, he was seen by a neurologist who reported that his gait was difficult at

times, that he had mild ataxia, and that MS was suspected. He reported that he was doing well on

Tegretol.

On November 18, 2004, Plaintiff reported that Tegretol was helpful, although he had to take

larger doses sometimes when the pain worsened. He reported a plan to spend the winter in Florida

to see if the warmer weather helped with the TN pain. 

On November 15, 2005, Plaintiff reported doing very well, still taking the Tegretol although

he did not have pain symptoms. He denied experiencing any dizziness. He reported that warm

weather in Florida may have helped keep him from having pain, and planned to return to Florida for

the winter.

On December 1, 2006, Plaintiff reported that after a pain-free period of two years, he was

again experiencing episodic pain upon getting out of bed and with sudden head movements. 

On October 23, 2007, Plaintiff reported an extremely painful flare of TN that was not helped

by oxycodone.

Plaintiff’s date last insured was December 31, 2007. 

On July 18, 2008, Richard Wenzler, M.D., reviewed Plaintiff’s medical records and opined

that he could lift and/or carry fifty pounds occasionally and twenty-five pounds frequently and could

stand and/or walk about six hours and sit about six hours in an eight-hour day. 

On October 27, 2010, at the request of the ALJ, Ashok Jilhewar, M.D., reviewed Plaintiff’s

medical records and also opined Plaintiff could perform medium work during the relevant period. 

Dr. Jilhewar noted that there was no physical residual functional capacity (“RFC”) assessment from

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a treating provider and no continuous period of twelve months of uncontrolled pain from Plaintiff’s

alleged onset date of December 31, 2001, through June 8, 2009 (after the date last insured), when

Plaintiff fell from a ladder and broke his ankle. Dr. Jilhewar also noted that although there was

mention of mild ataxia, no gait difficulties or treatment of ataxia was documented. 

III. Plaintiff’s Testimony

At the administrative hearing on January 19, 2011, Plaintiff testified that he had not been

pain free since 1996. He described the pain as electric and stabbing, lasting for between a few

seconds and a minute. During an episode, the pain would come several hours a day for several days

up to two weeks. Plaintiff testified that he could go a few months between episodes.

Plaintiff testified that during severe pain episodes he would sit in a chair and refrain from

moving in hopes of avoiding exacerbation of the pain, and that during even minor pain episodes he

would avoid activity to keep the pain from getting worse.

IV. Testimony of Plaintiff’s Daughters

At the administrative hearing, Plaintiff’s two adult daughters testified. Kashmir Hollister,

a nurse, testified that Plaintiff’s pain had stopped for approximately six months after the second

surgery. When the pain episodes returned after the second surgery, she testified that some were

severe and others were not, and that the severe episodes occurred about monthly and lasted a few

days to a couple of weeks. She stated that during a severe episode, Plaintiff would mostly sit in a

chair and watch television.

The testimony of Plaintiff’s second daughter, Nova Hollister, was substantially similar in

regards to the severity and frequency of Plaintiff’s pain. She also testified that she taught Plaintiff

how to text message so that he did not have to speak.

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V. Vocational Expert Testimony

The Vocational Expert (“VE”) testified that Plaintiff’s past work at a steel mill would be

considered medium work capacity, as recognized by the DOT. When questioned by the ALJ, the

VE testified that a person capable of performing medium work, with the additional limitations of

occasionally needing to balance and not working around unprotected heights and dangerous moving

machinery, would not be able to perform Plaintiff’s past work at a steel mill around dangerous

machinery. The VE then gave three representative jobs that a person with such limitations could

work: (1) a laundry worker (2,653 positions in the region), (2) an industrial cleaner (650 positions

in the region), and (3) a cleaner II (transport vehicle cleaner, 227 positions in the region).

When asked by Plaintiff’s attorney what affect missing two days a month due to pain would

have on potential job availability, the VE testified that such absenteeism would likely eliminate

work altogether. When asked, he also testified that a person who could do nothing but sit for an

average of two days a month would be precluded from gainful employment.

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 ex rel. Taylor 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.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Schmidt v.

Barnhart, 395 F.3d 737, 744 (7th Cir. 2005) (quoting Gudgel v. Barnhart, 345 F.3d 467, 470 (7th

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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’s

findings are supported by substantial evidence and under the correct legal standard. See Lopez v.

Barnhart, 336 F.3d 535, 539 (7th Cir. 2003); Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000). 

If an error of law is committed by the Commissioner, then the “court must reverse the decision

regardless of the volume of evidence supporting the factual findings.” Binion v. Chater, 108 F.3d

780, 782 (7th Cir. 1997).

An ALJ must articulate, at a minimum, his analysis of the evidence in order to allow the

reviewing court to trace the path of his reasoning and to be assured that the ALJ considered the

important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Diaz v. Chater, 55

F.3d 300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). The ALJ is not

required to address “every piece of evidence or testimony in the record, [but] the ALJ’s analysis

must provide some glimpse into the reasoning behind [the] decision to deny benefits.” Zurawski v.

Halter, 245 F.3d 881, 888 (7th Cir. 2001). The ALJ must build an “accurate and logical bridge from

the evidence to his conclusion so that, as a reviewing court, we may assess the validity of the

agency’s ultimate findings and afford a claimant meaningful judicial review.” Young v. Barnhart,

362 F.3d 995, 1002 (7th Cir. 2004) (quoting Scott, 297 F.3d at 595); see also Hickman v. Apfel, 187

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F.3d 683, 689 (7th Cir. 1999) (citing Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996)).

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

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 2; (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 3; (3) Does 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 4; (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 5; (5) Can the claimant perform other work given the claimant’s

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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 the fourth and fifth steps, the ALJ must consider an assessment of the claimant’s residual

functional capacity. “The RFC is an assessment of what work-related activities the claimant can

perform despite [his] limitations.” Young, 362 F.3d at 1000. The ALJ must assess the RFC based

on all the relevant evidence of record. Id. at 1001 (citing 20 C.F.R. § 404.1545(a)(1)). The claimant

bears the burden of proving steps one through four, whereas the burden at step five is on the ALJ. 

Id. at 1000; see also Zurawski, 245 F.3d at 886; Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).

 ANALYSIS

Plaintiff argues that the ALJ’s conclusion that Plaintiff was not entirely credible was not

supported by substantial evidence, that the ALJ’s decision failed to properly consider the nature of

Plaintiff’s impairment, and that the jobs cited in the step-five analysis involve significant hazards

not consistent with Plaintiff’s RFC assessment. 

A. Credibility Determination 

Plaintiff argues that the ALJ’s credibility determination is not supported by substantial

evidence. In particular, he argues that the ALJ improperly rejected Plaintiff’s complaints of

dizziness and problems balancing; inaccurately concluded that he was pain-free for long periods of

time; impermissibly concluded that some of Plaintiff’s activities indicated that he was not credible;

and improperly rejected witness testimony. The Commissioner argues that the ALJ’s finding was

reasonable and well-supported. As described below, the number of non-sequiturs and the ALJ’s

failure to follow the applicable regulations leads the Court to remand the decision for further

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proceedings on the basis of the credibility determination.

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). 

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

See id. The Regulations establish a two-part test for determining whether complaints of pain

contribute to a finding of disability: (1) the claimant must provide objective medical evidence of a

medically determinable impairment or combination of impairments that reasonably could be

expected to produce the symptoms alleged; 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. 20 C.F.R. § 404.1529(a).

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.

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

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

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

examining physicians and other persons about the conditions and how they affect the claimant, and

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

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

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

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

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

because they are not substantiated by objective evidence.” SSR 96–7p at *6. An ALJ’s credibility

determination is entitled to substantial deference by a reviewing court and will not be overturned

unless the claimant can show that the finding is “patently wrong.” Prochaska v. Barnhart, 454 F.3d

731, 738 (7th Cir. 2006).

Plaintiff first argues that the ALJ improperly rejected Plaintiff’s complaints that his

medication caused dizziness, imbalance, and difficulty walking. The Commissioner argues that the

evidence Plaintiff cites does not document ongoing complaints of dizziness and that the ALJ

accommodated any difficulties with balance or walking in his RFC by limiting Plaintiff to work that

did not involve hazards and required only occasional balancing. Indeed, the record reflects several

instances where the Plaintiff denied that he had problems with balance. However, the ALJ also

concluded that Plaintiff’s “daily activities suggest greater capacity than alleged: he . . . has

performed chores requiring climbing ladders.” R. at 24. As Plaintiff argues, his one-time attempt

to climb a ladder led to serious injury when Plaintiff fell off the ladder and broke his ankle. The ALJ

does not explain how Plaintiff’s failed attempt to climb a ladder indicates his ability to balance

rather than support his allegation that he is incapable of activities, such as climbing ladders, that

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require good balance. On remand, the ALJ is ordered to thoroughly address Plaintiff’s alleged

difficulties balancing, including obtaining the opinion of an examining medical expert if necessary.

Plaintiff next challenges the ALJ’s credibility determination regarding Plaintiff’s complaints

of pain, which Plaintiff testified was so severe that it would prevent him from doing anything but

sit at home and watch television. Although Plaintiff testified that he had not been pain-free prior

to his date last insured, the ALJ noted that the medical record showed substantial periods of time –

at least eleven months on two occasions and nearly two years during another – in which Plaintiff

advised medical providers he was pain free. 

Even assuming Plaintiff was not experiencing pain during those time periods, it is not

apparent from the record whether the ALJ considered if Plaintiff’s lack of pain symptoms could be

attributable to the fact that he was not working and was avoiding activities, such as talking or

moving his head, that might cause a pain flare. As the Social Security Ruling directs, when

considering a claimant’s credibility the ALJ must consider the fact that “[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.” SSR 96–7p

at *8. 

The Commissioner argues that “Plaintiff’s flare-ups were minor and infrequent, and appeared

to be, at least at times, the result of Plaintiff’s failure to take his medications.” Def. Resp. Br. at 11. 

However, the ALJ did not explicitly draw these conclusions in his analysis, and the Commissioner

may not now make new arguments that the ALJ did not include in his analysis. See SEC v. Chenery

Corp., 318 U.S. 80, 87 (1943) (“The grounds upon which an administrative order must be judged

are those upon which the record discloses that its action was based.”); see also Kastner v. Astrue,

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697 F.3d 642, 648 (7th Cir. 2012) (“Under the Chenery doctrine, the Commissioner's lawyers cannot

defend the agency's decision on grounds that the agency itself did not embrace. On appeal, the

Commissioner may not generate a novel basis for the ALJ's determination.”) (citing Chenery, 318

U.S. at 87-88; Parker v. Astrue, 597 F.3d 920, 922 (7th Cir.2010)). Similarly, the Commissioner

justified the ALJ’s conclusion that a trip to Florida made Plaintiff less than credible by reasoning

that the trip meant Plaintiff was away from his treatment providers, but that explanation is nowhere

in the ALJ’s decision. 

On remand, the ALJ is directed to address the nature of what he terms Plaintiff’s “pain-free

periods” and determine the extent to which they can be attributable to Plaintiff’s attempts to avoid

flares.

Plaintiff also argues that the ALJ erroneously discredited the testimony of Plaintiff’s

daughters. Plaintiff first argues that neither daughter is a dependent and therefore it is unclear what

type of special interest they have in Plaintiff’s disability benefits. The Commissioner argues that

it is self-evident that the daughters are interested parties by virtue of their familial relationship. This

idea that family members’ testimony is to be viewed with great skepticism runs counter to the Social

Security Rulings, listing examples of sources who “may provide information about the seven factors

listed in the regulations and may be especially helpful in establishing a longitudinal record,” and

specifically including “nonmedical sources such as family and friends.” SSR 96-7p at *8. “Contrary

to the ALJ's suggestion, nonmedical sources such as family and friends are not expected to have

medical training or to be disinterested witnesses.” Macon v. Astrue, No. 11 C 8140, 2012 WL

4854557, at *11, 2012 U.S. Dist. LEXIS 146223, at *31 (N.D. Ill. Oct. 11, 2012) (quoting

Guranovich v. Astrue, No. 09 C 3167, 2011 WL 686358 at *19, 2011 U.S. Dist. LEXIS 15970, at

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*56 (N.D. Ill. Feb.15, 2011) (quotation marks and other citations omitted). Although SSR 96-7p

does not preclude the ALJ from weighing the credibility of witnesses, the Court is concerned by

what appears to be his out-of-hand dismissal, in contravention of the regulation he is directed to

follow. His failure to credit the testimony of the daughter who is a nurse is even more concerning

since she has both medical training and the ability to describe Plaintiff’s daily activities in great

detail.

The ALJ also discredited the daughters’ testimony because he found their description of his

pain and difficulties speaking to be inconsistent with the rest of the record. Plaintiff argues that the

ALJ’s assertion that the record “is virtually silent regarding an inability to speak” is incorrect, and

refers to numerous pages of the record he claims describe his difficulties speaking, eating, and

drinking. Although several of the records appear to be cited in error and others are from dates after

Plaintiff’s date last insured, the remainder do indeed indicate that Plaintiff had difficulty speaking. 

On remand, the ALJ is directed to follow the applicable regulations and to take into account all

relevant medical and testimonial evidence in coming to his conclusions.

B. The ALJ’s Residual Functional Capacity Finding

Plaintiff argues that the ALJ’s reliance on two non-examining medical sources in reaching

the RFC was improper because their opinions are inconsistent with the record and failed to address

Plaintiff’s non-exertional limitations. The Commissioner argues that the RFC is supported by

substantial evidence and reasonably accommodates Plaintiff’s impairments.

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

his limitations. Young, 362 F.3d at 1000; see also 20 C.F.R. §§ 404.1545(a)(1); 416.1545(a)(1). In

evaluating a claimant's RFC, an ALJ is expected to take into consideration all of the relevant

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evidence, including both medical and non-medical evidence. See 20 C.F.R. §§ 404.1545(a)(3);

416.945(a)(3). According to SSA regulations:

The RFC assessment must include a narrative discussion describing

how the evidence supports each conclusion, citing specific medical

facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily

activities, observations). In assessing RFC, the adjudicator must

discuss the individual's ability to perform sustained work activities in

an ordinary work setting on a regular and continuing basis (i.e., 8

hours a day, for 5 days a week, or an equivalent work schedule), and

describe the maximum amount of each work-related activity the

individual can perform based on the evidence available in the case

record. The adjudicator must also explain how any material

inconsistencies or ambiguities in the evidence in the case record were

considered and resolved.

SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996). Although an ALJ is not required to discuss

every piece of evidence, he must consider all of the evidence that is relevant to the disability

determination and provide enough analysis in his decision to permit meaningful judicial review. 

Clifford, 227 F.3d at 870; Young, 362 F.3d at 1002. In other words, the ALJ must build an “accurate

and logical bridge from the evidence to his conclusion.” Scott, 297 F.3d at 595 (citation omitted).

Plaintiff argues that the physicians’ opinions, particularly that his symptoms improved to the

point where he would need no non-exertional limitations nor precautionary measures, are

inconsistent with the character of his disease. The Commissioner argues that although TN may

necessitate non-exertional limitations or precautionary measures in some patients, the mere

diagnosis of TN does not mean that Plaintiff requires those limitations, and Plaintiff does not

provide evidence in support of his contention that he does. As described above, on remand the ALJ

is directed to thoroughly address Plaintiff’s claims regarding his non-exertional limitations,

including considering whether Plaintiff needs to take precautionary measures to avoid pain flare-ups

and the extent to which Plaintiff has difficulty balancing, including obtaining new medical evidence

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as necessary. 

C. The ALJ’s Step Five Findings

Plaintiff argues that the jobs cited by the ALJ in his step five findings are inconsistent with

the RFC assessment. Specifically, Plaintiff argues that it should have been obvious to the ALJ that

the cited jobs conflicted with the RFC limitation of not working around hazards or moving

machinery, and that they were also inconsistent with his balance and gait difficulties. 

SSR 00-4p requires an ALJ who takes testimony from a VE about the requirements of a

particular job to determine whether that testimony is consistent with the DOT. Specifically, SSR

00-4p requires:

When a VE or VS provides evidence about the requirements of a job

or occupation, the adjudicator has an affirmative responsibility to ask

about any possible conflict between that VE or VS evidence and

information provided in the DOT. In these situations, the adjudicator

will:

Ask the VE or VS if the evidence he or she has provided conflicts

with information provided in the DOT; and 

If the VE’s or VS’s evidence appears to conflict with the DOT, the

adjudicator will obtain a reasonable explanation for the apparent

conflict.

SSR 00-4p, 2007 WL 1898704 at *4 (Dec. 4, 2000); see also Prochaska, 454 F.3d at 735. 

Furthermore, before the ALJ may rely on the VE's evidence as substantial evidence, he must make

the SSR 00-4p inquiry and elicit a response for any discrepancies. Id. at 735 (citing Haddock v.

Apfel, 196 F.3d 1084 (10th Cir. 1999)). The SSR 00-4p ruling places the burden of making the

inquiry on the ALJ, not the claimant. See id.

Because the case is being remanded for other reasons described above, new VE testimony

will need to be obtained based on appropriate disability and RFC findings. The ALJ is cautioned

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that he must incorporate all relevant limitations in his questioning of the VE and specifically

ascertain whether the cited jobs are consistent with the limitations in the RFC.

CONCLUSION

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

in Support of His Motion to Reverse the Decision of the Commissioner of Social Security [DE 17]

and REMANDS this matter for further proceedings consistent with this opinion. However, the

Court DENIES Plaintiff’s request to award benefits. 

SO ORDERED this 26th day of February, 2013.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

cc: All counsel of record

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