UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

LAFAYETTE DIVISION

CORY S. BARRETT, )

)

Plaintiff, )

)

v. ) Civil No. 4:12-CV-74

)

CAROLYN W. COLVIN, )

Acting Commissioner )

of Social Security, )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court for review of the Commissioner

of Social Security’s decision denying Disability Insurance Benefits

and Supplemental Security Income to Plaintiff, Cory S. Barrett. 

For the reasons set forth below, the Commissioner of Social

Security’s final decision is REVERSED and this case is REMANDED to

the Social Security Administration for further proceedings

consistent with this opinion pursuant to sentence four of 42 U.S.C.

§ 405(g).

BACKGROUND

On May 24, 2010, claimant, Cory S. Barrett (“Barrett” or

“claimant”) applied for Social Security Disability Insurance

Benefits (“DIB”) under Title II of the Social Security Act, 42

U.S.C. § 401 et seq. On May 25, 2010, Barrett applied for

case 4:12-cv-00074-RL-PRC document 25 filed 03/11/14 page 1 of 23
Supplemental Security Income (“SSI”) under Title XVI of the Social

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

Barrett alleged that his disability began on February 5, 2010. 

The Social Security Administration denied his initial application

and also denied his claims on reconsideration. Barrett appeared on

December 2, 2011, with counsel, at a hearing before Administrative

Law Judge William E. Sampson (“ALJ Sampson” or “ALJ”). The ALJ

heard testimony from Barrett as well as from an impartial

Vocational Expert (“VE”), Leonard M. Fisher. On December 12, 2011,

ALJ Sampson denied Barrett’s DIB and SSI claims, finding Barrett

not disabled as defined by the Social Security Act. (Tr. 10-22).

Barrett requested that the Appeals Council review the ALJ’s

decision and the request was denied. Accordingly, the ALJ’s

decision became the Commissioner’s final decision. See 20 C.F.R.

§ 422.210(a) (2005). Barrett has initiated the instant action for

judicial review of the Commissioner’s final decision pursuant to 42

U.S.C. § 405(g) and 1383(c).

DISCUSSION

Barrett was born August 22, 1971. (Tr. 20). He was 40 years

old when the ALJ rendered his decision, and 38 years old at the

time of onset. (Tr. 16). Barrett graduated from high school and

had past relevant work as a cable installer, a satellite installer,

and a dispatcher. (Tr. 16, 34, 165). Barrett alleges the

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following impairments: back injury, symptoms associated with spinal

fusion surgery, anxiety, panic attacks, and depression. (Tr. 164). 

Barrett underwent back surgery in 2000. (Tr. 35, 238). In

late 2009 or early 2010, Barrett began experiencing pain in his

back again. (Tr. 237-39, 356, 448). On January 8, 2010, Dr. John

Gorup of the Indiana Spine Center examined Barrett. (Tr. 350-51). 

Barrett reported that he had been having low back and leg pain for

6 weeks, that the pain was constant, and that the pain was worse

when he stands, bends, lifts or walks. (Tr. 350). He rated his

pain at 8 out of 10. (Tr. 350). Examination showed nerve tension

signs and diminished reflexes in his lower extremities. (Tr. 351).

Dr. Gorup ordered an MRI and diagnosed recurrent L5-S1 disc

herniation, acquired lumbar spinal stenosis, lumbar ridiculopathy,

and degenerative disc disease of the lumbar spine. (Tr. 266, 268,

350-51). 

On January 12, 2010, Dr. Gorup recommended Barrett undergo a

posterior lumbar interbody fusion procedures at L5-S1 due to severe

symptoms and findings. (Tr. 349). Barrett underwent the surgery 

on February 8, 2010. (Tr. 264). When he was released from the

hospital on February 11, 2010, his pain was well controlled on oral

pain medication. (Tr. 352). 

Following the surgery, Barrett continued to feel moderate to

severe back pain, often radiating down his left leg and numbing his

left foot. (Tr. 358-59). Dr. Robert Bigler performed a series of

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three steroid injections in May, June, and July of 2010 to relieve

pain and determine its source. (Tr. 280, 297, 313). In May of

2010, Barrett reported no improvement in his pain with the back

surgery and that his pain was actually worse. In June, Barrett

reported a moderate to severe amount of discomfort and pain. (Tr.

346). On July 22, 2010, Barrett saw Dr. Gorup and reported

complete pain relief for two days following a spinal injection. 

(Tr. 344). Dr. Gorup planned to see Barrett in two months, and if

x-rays revealed that his fusion was well consolidated, he would

proceed with removal of Barrett’s hardware. (Tr. 344). 

In August of 2010, Barrett described his pain to Dr. Bigler as

constant, sharp, shooting, stabbing and aching. (Tr. 419). He

indicated that the pain was relieved by lying down and pain

medication. (Tr. 419). He further indicated that the pain has

continued since his back surgery in February of 2010, and he rated

the pain as a 10 out of 10. (Tr. 419). In September of 2010, 

Barrett again described his pain as constant, shooting, stabbing

and aching, and rated it as 8 out of 10. (Tr. 415). He indicated

that the pain is exacerbated by sitting, standing, walking,

bending, or lying flat. (Tr. 415). On September 30, 2010, Dr.

Gorup released Barrett from his care and indicated he was solidly

fused, but he noted that Barrett reported ongoing numbness in his

right leg. (Tr. 381). 

On October 09, 2010, Barrett underwent a medical examination

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with the State Disability Determination Services medical

consultative examiner, Luella Bangura, M.D. (Tr. 368-70). Upon

examination, Barrett’s gait was antalgic and he had a normal

station. (Tr. 370). He was able to walk on his toes with

difficulty but unable to walk on his heels. (Id.). He could

squat, but he could not bend over more than 30 percent. (Id.). 

There was tenderness to palpation of the spine, but no evidence of

inflammation, effusion, swelling, muscle weakness, or atrophy.

(Id.). Dr. Bangura found that the straight-leg raising sign was

positive on the right side. (Id.). 

On November 9, 2010, Dr. J. Sands, an agency physician,

completed a physical residual functional capacity assessment form

for Barrett. (Tr. 405-12). Dr. Sands believed that the medical

records show that Barrett could lift 20 pounds occasionally and 10

pounds frequently, could stand and/or walk about 6 hours in an 8-

hour workday, could sit about 6 hours in an 8-hour workday, and was

not limited in his ability to push and/or pull. (Tr. 406). He

further indicated that Barrett could only occasionally climb,

balance, stoop, kneel, crouch or crawl. (Tr. 407). 

Barrett saw Dr. Bigler consistently throughout 2011. On March

8, 2011, when Barrett saw Dr. Bigler, he rated his pain as a 7 out

of 10. (Tr. 464-66). When Barrett saw Dr. Bigler on April 12,

2011, he rated his pain as 8 out of 10 and described the pain as

constant, sharp, nagging, shooting, piercing, stabbing, aching and

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dull. (Tr. 460-62). He felt that Flexeril was not helping him and

that his pain was getting worse overall. (Tr. 460). The pain was

worst in his lower back, but extended into his shoulders, left hand

and fingers, thoracic spine, hips, buttocks, posterior and lateral

thigh, lower leg, calf, and foot. (Tr. 460).

When Barrett saw Dr. Bigler on May 10, 2011, he reported pain

as constant, sharp, nagging, shooting, piercing, stabbing, aching

and dull, and he rated his pain at 6 out of 10. (Tr. 456-58). 

Records indicated he was using a transcutaneous electrical nerve

stimulation (“TENS”) unit for pain management at the time and that

it was helping. (Tr. 456). Dr. Bigler indicated Barrett should

follow up in four months, but Barrett saw Dr. Bigler just a month

later, on June 06, 2011. (Tr. 458, 452-54). At this visit,

Barrett reported constant, sharp, nagging, shooting, piercing,

stabbing and aching pain that he rated as an 8 out of 10. (Tr.

452). Barrett saw Dr. Bigler again on September 21, 2011, and

described his pain as sharp, dull, shooting, stabbing, nagging,

piercing, and aching. (Tr. 448-50). He further indicated that the

pain radiated to his buttock, thigh, leg and foot, and that the

pain was worsened by standing, walking, bending and lying flat. 

(Tr. 448). The pain was relieved by medication, sitting, standing

and lying down, and Barrett got good relief from pain medication. 

(Tr. 448). On November 22, 2011, Barrett saw Dr. Bigler yet again. 

(Tr. 519-21). He rated his pain at 7 out of 10 and described his

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pain as constant, sharp, nagging, shooting, piercing, stabbing and

dull. (Tr. 519). Dr. Bigler prescribed Cymbalta for Barrett. 

(Tr. 521).

With regards to Barrett’s mental impairments, on January 1,

2010, Dr. Aldo Buonanno performed a mental status examination on

Barrett. (Tr. 364-66). Dr. Buonanno diagnosed panic disorder,

depressive disorder, and alcohol dependence in remission, and

assigned a GAF of 57.1 (Tr. 365-66). Dr. Buonanno noted that

“Barrett’s problems seem to be more physical than anything else”

and “[h]e is still in pain and has no medical insurance and is

currently on no medications.” (Tr. 366). 

Notes from American Health Network dated October 14, 2010,

indicated that Barrett continued to suffer from depression and

anxiety and that his back surgery was considered a failed surgery. 

(Tr. 372). He was not taking his medications because he could not

afford them. (Tr. 372). 

On October 27, 2010, Dr. F. Kladder, Ph.D., completed a

psychiatric review technique form in which he indicated that the

medical evidence demonstrated Barrett suffered from both depression

and panic disorders, but that those disorders were not so severe

that they met the listings. (Tr. 391-404). He further found that

1 GAF is a scoring system for measuring an individual’s overall functional

capacity. A GAF of 57 would represent moderate symptoms or moderate

difficulty in social, occupational, or school functioning. Diagnostic and

Statistical Manual of Mental Disorders, DSM-IV-TR, 32-34 (4th ed. 2000).

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the medical records suggested that Barrett suffered only mild

restrictions of activities of daily living, only mild difficulties

in maintaining social functioning, and only mild difficulties in

maintaining concentration, persistence or pace. (Tr. 401). Dr.

Kladder indicated that Barrett’s psychiatric impairments did not

appear severe. (Tr. 403). Dr. Kladder’s assessment was affirmed

by Dr. B. Randal Horton on October 27, 2010. (Tr. 443). 

In October of 2011, Barrett sought outpatient treatment at

Wabash Valley Alliance, Inc. (Tr. 511-17). Following assessment,

he was diagnosed with Panic Disorder without agoraphobia, major

depression, recurrent, moderate, full remission, and alcohol

dependence, full remission. (Tr. 517). His GAF was assessed at

45.2 (Tr. 511). A treatment plan was developed for Barrett and

included as a goal that Barrett would “report 1 panic attack or

less each week (instead of several times a week).” (Tr. 513).

At the hearing, Barrett testified that, following surgery in

February of 2010, he has had constant pain, often shooting down his

left leg, and numbness in his left foot. (Tr. 36). He stated that

he takes OxyContin and Oxycodone for pain management, and it

relieves a portion of the pain; without it he would not be able to

function. (Tr. 37). Barrett estimated he could stand or walk for

2 A GAF of 45 would include serious symptoms of suicidal ideation, severe

obsessional rituals, frequent shoplifting, or any serious impairment in

social, occupational, or school functioning. Diagnostic and Statistical

Manual of Mental Disorders, DSM-IV-TR, 32-34 (4th ed. 2000).

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a maximum of 15 minutes at a time. (Tr. 37). He also estimated

that he could sit for ten to fifteen minutes before he needs to

shift around to relieve the pain. (Tr. 37-38). He can only sleep

for about two hours at a time and, as a result, naps during the

day. (Tr. 38). 

Barrett lives with his parents and has four children that he

sees one night a week and every other weekend. (Tr. 39, 173).

Barrett’s parents take care of the shopping, cooking, cleaning, and

other household chores. (Tr. 38-38). Barrett indicated in a

functional report that he can only fix simple meals, such as cereal

or sandwiches, because standing to cook exacerbates his pain. (Tr.

174). He does not usually drive and when he does he states he can

only drive short distances. (Tr. 175). Barrett enjoys reading and

watching sports or movies. (Tr. 176). He does not often leave the

house to socialize or go out. (Tr. 177).

Review of Commissioners Decision

This Court has authority to review the Commissioner’s decision

to deny social security benefits. 42 U.S.C. § 405(g). “The

findings of the Commissioner of Social Security as to any fact, if

supported by substantial evidence, shall be conclusive . . . .” 

Id. Substantial evidence is defined as “such relevant evidence as

a reasonable mind might accept as adequate to support a decision.” 

Richardson v. Perales, 402 U.S. 389, 401 (1971). In determining

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whether substantial evidence exists, the Court shall examine the

record in its entirety but shall not substitute its own opinion for

the ALJ’s by reconsidering the facts or re-weighing evidence. Jens

v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003). With that in mind,

however, this Court reviews the ALJ’s findings of law de novo and

if the ALJ makes an error of law, the Court may reverse without

regard to the volume of evidence in support of the factual

findings. White v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999).

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

under the Social Security Act, the claimant must establish that he

is disabled. To qualify as being disabled, the claimant must be

unable “to engage in any substantial gainful activity by reason of

any medically determinable physical or mental impairment which can

be expected to result in death or has lasted or can be expected to

last for a continuous period of not less than twelve months.” 42

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

satisfied this statutory definition, the ALJ performs a five step

evaluation:

Step 1: Is the claimant performing substantial gainful activity:

If yes, the claim is disallowed; if no, the inquiry

proceeds to step 2.

Step 2: Is the claimant’s impairment or combination of 

impairments “severe” and expected to last at least twelve

months? If not, the claim is disallowed; if yes, the

inquiry proceeds to step 3.

 

Step 3: Does the claimant have an impairment or combination of 

impairments that meets or equals the severity of an

impairment in the SSA’s listing of impairments, as

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described in 20 C.F.R. § 404 Subpt. P, App. 1? If yes,

then claimant is automatically disabled; if not, then the

inquiry proceeds to step 4.

Step 4: Is the claimant able to perform his past relevant work?

If yes, the claim is denied; if no, the inquiry proceeds

to step 5, where the burden of proof shifts to the

Commissioner. 

Step 5: Is the claimant able to perform any other work within his

residual functional capacity in the national economy: If

yes, the claim is denied; if no, the claimant is

disabled. 

20 C.F.R. §§ 404.1520(a)(4)(i)-(v) and 416.920(a)(4)(i)-(v); see

also Herron v. Shalala, 19 F.3d 329, 333 n. 8 (7th Cir. 1994).

In this case, the ALJ found that Barrett suffers from a severe

impairment: lumbar degenerative disc disease status post fusion L5-

S1. (Tr. 12). The ALJ further found that Barrett did not meet or

medically equal one of the listed impairments in 20 C.F.R. 404,

Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526,

416.920(d), 416.925 and 416.926)(the “listings”). (Tr. 15). ALJ

Sampson then determined that Barrett has the following residual

functional capacity (“RFC”):

less than sedentary work as defined in 20

C.F.R. 404.1567(a) and 416.967(a). 

Particularly, the claimant can lift 10 pounds

occasionally and up to 10 pounds frequently. 

He can stand and/or walk up to 2 hours in an

8-hour workday and sit for up to 6 hours in an

8-hour workday. He shall not climb ladders,

ropes or scaffolds, but may climb ramps and

stairs. He can occasionally balance, stoop,

kneel, crouch and crawl. 

(Tr. 16).

Relying on the testimony of the VE, the ALJ further found

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that, considering the Barrett’s age, education, work experience,

and residual functional capacity, he is capable of performing past

relevant work as a dispatcher and, in the alternative, he could

perform other jobs that exist in significant numbers in the

national economy. (Tr. 20-21). Thus, Barrett’s claim failed at

steps four and five of the sequential analysis, and the ALJ found

that Barrett had not been under a disability, as defined in the

Social Security Act, from February 5, 2010, through the date of his

decision. (Tr. 21).

Barrett argues that the ALJ erred in several ways. He asserts

that the ALJ erred in finding that he does not meet or equal

listing 1.04(A). Barrett further argues that the ALJ’s decision

contains numerous material misstatements of the evidence and that,

as a result, the ALJ has not formed a logical bridge from the

medical evidence to his conclusions. Barrett also argues that the

ALJ erred in discounting the opinion of Dr. Bangura, a consultative

examiner hired by the Commissioner. 

Listing 1.04(A)

Barrett first argues that the ALJ erred in determining that

his impairments neither meet nor equal listing 1.04(A).3 To meet

3

 Barrett makes two additional arguments that the ALJ erred at step 3, but

those arguments lack merit and are addressed only cursorily here. 

Barret argues that “[t]he ALJ erred by failing to accurately, and

thereby failed to adequately, consider and weigh the opinions of his treating

physicians and other acceptable medical sources.” (DE 15 at 6). Barrett never

tells the Court which treating physician’s opinion he feels the ALJ failed to

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listing 1.04, a claimant must have a disorder of the spine

resulting in compromise of a nerve root or the spinal cord

evidenced by “nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine,

motor loss (atrophy with associated muscle weakness or muscle

weakness) accompanied by sensory or reflex loss and, if there is

involvement of the lower back, positive straight-leg raising test

(sitting and supine).” 20 C.F.R. § 404, Subpart P, App. 1, §

1.04(A). At step three of the analysis, the burden falls upon the

claimant to provide medical evidence showing that his impairment

meets or equals all criteria set forth in a listing. Ribaudo v.

Barnhart, 458 F.3d 580, 583 (7th Cir. 2006).

The ALJ’s findings with regard to step three, are as follows:

The undersigned examined and considered all

listed impairments in 20 CFR Part 404, Subpart

P, Appendix 1 with specific attention to the

following listing: 1.04 (Disorders of the

properly weigh. Since no treating physician has opined that Barrett meets or

equals listing 1.04, the Court is somewhat unclear what point Barrett is

trying to make. The ALJ did not determine that any treating physician’s

opinion was entitled to less than controlling weight. The ALJ did note (not

in assessing step three, but in determining Barrett’s RFC) that “there is no 

treating source or other opinion on file providing limitations which support a

finding of disability.” (Tr. 20). Barrett has argued that certain portions

of the record (including records by treating physicians) support a finding

that the listing is met, and the Court will consider those citations, but the

Court is not convinced that the treating physician rule was violated here. 

Barrett also argues that the ALJ’s step three finding is based on a

material misstatement of the record. The ALJ states in his opinion that Mr.

Barrett obtained “complete relief” from pain following injections, but the

record establishes that the “complete relief” that Barrett referenced only

lasted for two days. (Tr. 18-19, 344). This issue will be discussed further

in the context of Barrett’s other arguments, but the ALJ’s step three finding

does not appear to be based on an inaccurate belief that the injections

offered Barrett long-term complete relief from pain. 

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spine). The undersigned noted the Disability

Determination Service (DDS) medical examiners

disposed of this case after assessing the

claimant’s residual functional capacity, which

meant no listing was met or equaled, in their

opinion.

The claimant’s impairment failed to meet the

listing for 1.04 (Disorders of the spine),

because the record, consistent with the

findings below, does not demonstrate

compromise of a nerve root (including the

cauda equina) or the spinal cord with

additional findings of: (A) Evidence of nerve

root compression characterized by neruoanatomic distribution of pain, limitation of

motion of the spine, motor loss (atrophy with

associated muscle weakness or muscle weakness)

accompanied by sensory or reflex loss and

positive straight-leg raising or; (B) Spinal

arachnoiditis or; (C) Lumbar spinal stenosis

resulting in pseudoclaudication. (See 20 CFR

Part 404 Subpart P, Appendix 1, § 1.04)

The undersigned concluded the medical evidence

did not demonstrate the claimant’s impairments

rose to the level of listing level severity,

and that no acceptable medical source had

mentioned findings equivalent in severity to

the criteria of any listed impairment,

individually or in combination. 

(Tr. 15). 

According to the Commissioner, its decision should be upheld

because the ALJ relied upon state agency physicians who had

reviewed the record and concluded that Barrett did not meet or

equal any listed impairment. (DE 22 at 7-8). The Commissioner

cites to four Disability Determination and Transmittal (“DDT”)

forms and the reports those forms rely upon. (Tr. 55-58; 391-404;

405-12). As a general proposition, the Commissioner is correct. 

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See Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004)(noting

that DDT forms stating that a claimant is not disabled conclusively

establish that a physician designated by the Commissioner has

considered the question of medical equivalence at the initial and

reconsideration levels, and that these forms are substantial

evidence supporting a finding that a claimant does not meet or

equal a listing); Pope v. Shalala, 998 F.2d 473,481 (7th Cir.

1993)(noting that a signed DDT form “is proof that a physician

designated by the Secretary has considered the equivalency

question, and the ALJ may rely upon the physician’s opinion to

determine eligibility.”). But, the Seventh Circuit, when faced

with a similar argument based on Scheck, made it clear that an “ALJ

may rely solely on opinions given in Disability Determination and

Trasmittal forms and provide little additional explanation only so

long as there is no contradictory evidence in the record...” 

Ribaudo v. Barnhart, 458 F.3d 580, 584 (7th Cir. 2006). 

In this case, the DDT forms cite to two reports which shed

little to no light on whether Barrett meets or equals listing 1.04. 

A psychiatric review technique form by Dr. Kladder is referenced in

which Dr. Kladder finds that neither listing 12.04 (Affective

disorders) nor listing 12.05 (anxiety disorders) were met, but

Barrett has not argued that he meets or equals those listing. (Tr.

391-404). A Physical Residual Functional Capacity Assessment by

Dr. Sands is referenced, too, but it makes no mention of the

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listings whatsoever. (Tr. 405-12). The DDT forms also reference

opinions by Drs. Horton and Ruiz, but these doctor’s merely

affirmed the opinions of Drs. Klatter and Sands. (Tr. 57-58, 443). 

In contrast, Barrett argues that the record supports a finding

that listing 1.04(A) is equaled. He cites to the following

evidence:

a. The ongoing pain as previously discussed;

b. Limitation of motion of the spine, which

includes significantly restricted bending

(bending limited to touching thighs)(Tr. 415); 

c. Limited extension and flexion of his spine

(Tr. 415); 

d. Reflex loss. See pain management doctor’s

records (Tr. 414-442, Tr. 447-474 and Tr. 519-

521F); 

e. Positive straight leg raising test on

consultative exam (Tr. 379); 

f. Not able to walk on heels due to pain (Tr.

379); 

g. Not able to bend forward more than 30

degrees. (Tr. 379); and 

h. Neuroanatomic distribution of pain with

pain across the back, into the buttocks and

down the leg. (Tr. 414-442, Tr. 447-474 and

Tr. 519-521F). 

(DE 15 at 9-10). Although Barrett offered no explanation of why

these citations demonstrate the listing is met, the record does

demonstrate that there is at least some evidence that suggests each

of the criteria of listing 1.04 may be met. 

First, there is evidence that Barrett experienced neuroanatomic distribution of pain. He experienced pain across his

back, in his bilateral hip and buttocks, legs, particularly the

bilateral posterior thigh and bilateral lower leg in the calf. 

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(Tr. 415, 419, 448, 452, 456, 460, 464). Barrett’s records

demonstrate limitations of motion of the spine. (Tr. 453, 457,

461, 465). Barrett’s records also demonstrate that he experienced

loss of reflexes. (Tr. 454, 458, 462, 465). There is some

evidence of motor loss, too, in the form of an inability to walk on

his heels due to pain.4 (Tr. 370). Finally, although several

straight leg tests were negative, Barrett had a positive straight

leg test. (Tr. 370, 416, 420, 454, 458). 

The above evidence does not mandate a finding that listing

1.04(A) was met, but it is some evidence that may support a finding

that the listing was met. It is at least enough evidence that the

ALJ had an obligation to do more than merely note that DDS medical

examiners found no listing was met and then parrot back the

language of the listing. Accordingly, the case must be remanded. 

On remand, the ALJ is instructed to revisit step three and, if he

determines that Barrett does not meet listing 1.04, offer a

detailed explanation that allows meaningful review of his decision.

Misrepresentations of the Evidence

Barrett also argues that the ALJ relied on several

misstatements in the record (31 to be precise) and that, as a

4 Inability to walk on the heels or toes, to squat, or to arise

from a squatting position, when appropriate, may be considered

evidence of significant motor less. 20 C.F.R. Part 404, Subpart

P, App. 1, 1.00E1; see also Kastner v. Astrue, 697 F.3d 642, 650

(7th Cir. 2012); Ribaudo, 458 F.3d at 584. 

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result of those misstatements, there is not an accurate and logical

bridge between the evidence and the ALJ’s findings regarding

Barrett’s credibility, activities of daily living, or RFC. The ALJ

is not required to address every piece of evidence but must build

an accurate and logical bridge between the evidence and the result.

Simila v. Astrue, 573 F.3d 503, 516 (7th Cir. 2009); Shramek v.

Apfel, 226 F.3d 809, 811 (7th Cir. 2000). Where, however, “the

reasons given by the trier of fact do not build an accurate and

logical bridge between the evidence and the result,” this Court

cannot uphold the ALJ's determination. Shramek, 226 F.3d at 811

(quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996);

Groves v. Apfel, 148 F.3d 809, 811 (7th Cir. 1998)). 

 Many of Barrett’s alleged misrepresentations are immaterial,

such as the ALJ’s statement that Barrett can cook without

clarifying that he only cooks simple meals. This Court will not

discuss each and every one of Barrett’s allegations of a 

misrepresentation by the ALJ. However, Barrett’s argument is not

completely without merit and the most troubling of his alleged

misrepresentations are addressed below. 

First, Barrett believes that the ALJ inaccurately

characterized the pain from his impairment when the ALJ said that

Barrett had “complete relief” from pain following an epidural

injection. (DE #15, at 8-9). The medical record more accurately

states that Barrett reported to his doctors that he had “two days

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worth of complete relief” from the pain following the injection. 

(Tr. 344). When first referring to the epidural injections in his

opinion, the ALJ stated that Barrett experienced “complete relief”

from the pain for two days (Tr. 18), but later in his opinion the

ALJ simply states that following the injections Barrett had

“complete relief” from pain with no reference to the fact that the

relief was short-lived. (Tr. 19). 

The context in which this occurred in important. In

determining that Dr. Bangura’s opinion was entitled to little

weight, the ALJ noted that Dr. Bangura’s opinion was inconsistent

with the record. The ALJ cited several items to support this

claim, including the following:

He admitted that sitting and his pain

medication alleviated the pain and after his

hardware injection, he obtained “complete

relief.” 

(Tr. 19). The ALJ also referenced Barrett’s “complete relief” from

pain in finding that Barrett was not credible:

The claimant’s treatment records also do not

support the severity of his physical

impairments. Although the evidence shows

that, the claimant has been diagnosed with the

above physical impairments, the claimant 

condition has appeared to have improved to the

point that he reports “complete relief” after

obtain a hardware injection, and that he is

able to stand, walk and/or sit up to one to

two hours at a time.

(Tr. 19-20)(grammatical errors in original). 

While the ALJ’s opinion does show that, at one point, he

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understood that Barrett’s complete pain relief lasted only two

days, the above analysis makes no sense if the pain relief lasted

only two days. 

In addition, the ALJ stated that in August of 2010, Barrett

“described his pain as a ‘2' on a pain scale of 1 to 10, with 10

being the worst.” (Tr. 18). In fact, the record states that on

the date of examination Barrett described his pain as a 10 out of

10. (Tr. 419-22). The ALJ’s reference to 2 of 10 likely comes

from the following notes by Dr. Bigler:

He has continued pain from his back surgery in

2/10. The back pain is across the back. 

There is pain in the right hip and/or

buttocks. Pain is in the right posterior

lateral thigh. Pain is along the right lower

leg in the calf. Foot pain is located in the

toes. Depression and anxiety symptoms are

increased. Medications are becoming less

effective.

(Tr. 419). It is clear that the reference to “2/10” was a

reference to when Barrett had surgery in February of 2010. (Tr.

422). In fact, Barrett’s lowest pain rating from 2010-2011 was a

6 out of 10 in May 2011. (Tr. 456). Prior to that date, Barrett’s

records show he had not rated his pain lower than an 8 out of 10.

(Tr. 415, 419, 448, 460). 

Also troubling is the ALJ’s reference to Barrett’s noncompliance with medical treatment in his credibility determination: 

The claimant’s activities of daily living,

social functioning, and non-compliance of

medical treatment and improvement of

examination findings are inconsistent with his

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impairments.

(Tr. 19). The ALJ’s reference to “non-compliance” is apparently a

reference to his failure to take medication. But, the record has

more than one reference to Barrett’s inability to afford treatment

at various times. A note from October of 2010 reveals that Barrett

was homeless, living between three houses, felt stressed, and was

not taking his medications because he was unable to afford them. 

(Tr. 372). Another provider noted that Barrett “is still in pain

and has no medical insurance and is currently on no medication.” 

(Tr. 366). The ALJ acknowledged earlier in the opinion that, in

October of 2010, Barrett had reported that he stopped taking his

medications because he could not afford them. (Tr. 13). Despite

acknowledging the reason that Barrett did not take medication, he

used that failure as a reason to discredit Barrett’s testimony

without any explanation of why Barrett’s reason for not taking

medication was unsatisfactory. An ALJ should not rely on a lack of

treatment to find a claimant not credible without inquiring into

the reason for the lack of treatment. SSR 96-7p.5

 Here, the

5 SSR 96-7p provides that:

... the individual’s statements may be less

credible if the level or frequency of

treatment is inconsistent with the level of

complaints, or if the medical reports or

records show that the individual is not

following the treatment as prescribed and

there are no good reasons for this failure. 

However, the adjudicator must not draw any

inferences about an individual’s symptoms and

their functional effects from a failure to

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reason was clear from the record, and the ALJ should have explained

why Barrett’s failure to take medication was a relevant factor

despite the indication that the reason was an inability to afford

the medications. 

Lastly, the Court notes that the ALJ used the “sit and squirm”

test to substantiate his decision that Barrett is not disabled. 

The ALJ noted the fact that Barrett was able to “sit during the

entire 45 minute hearing without difficulty and walked with a

normal gait, thus, suggesting that he is capable of performing at

least sedentary work.” (Tr. 19). The ALJ’s use of the “sit and

squirm” test to make his determination is frowned upon in the

Seventh Circuit. See Powers v. Apfel, 207 F.3d 431, 436 (7th Cir.

2000) (“We doubt the probative value of any evidence that can be so

easily manipulated as watching whether someone acts like they are

in discomfort.”). However, the Court does not automatically reverse

where this test is used; instead, the Court considers whether the

seek or pursue regular medical treatment

without first considering any explanations

that the individual may provide, or other

information in the case record, that may

explain infrequent or irregular medical visits

or failure to seek medical treatment. The

adjudicator may need to recontact the

individual or question the individual at the

administrative proceeding in order to

determine whether there are good reasons the

individual does not seek medical treatment or

does not pursue treatment in a consistent

manner. . . . 

SSR 96-7p. 

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test was used properly in conjunction with other credibility

evidence. Id. Here, when the “sit and squirm” test is used in

conjunction with so many other errors in interpreting the evidence,

its usefulness is highly questionable at best. 

The above-mentioned errors, when considered together,

demonstrate that the ALJ’s decision failed to build the sort of

accurate and logical bridge between the evidence and the ALJ’s

decision, as required. Simila, 573 F.3d at 516. Accordingly, this

case must be remanded for further proceedings. 

CONCLUSION

For the reasons set forth above, the Commissioner of Social

Security’s final decision is REVERSED and this case is REMANDED to

the Social Security Administration for further proceedings

consistent with this opinion pursuant to sentence four of 42 U.S.C.

§ 405(g).

DATED: March 11, 2014 /s/RUDY LOZANO, Judge

United State District Court

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