UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

LYNNETTE M. WENZEL, )

Plaintiff, )

)

v. ) CAUSE NO.: 2:13-CV-433-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 Lynnette M. Wenzel on

November 25, 2013, and Plaintiff’s Brief in Support of Her Motion to Reverse the Decision of the

Commissioner of Social Security [DE 18], filed by Plaintiff May 6, 2014. Plaintiff requests that the

decision of the Administrative Law Judge be reversed and remanded for further proceedings. On

August 16, 2014, the Commissioner filed a response, and on August 29, 2014, Plaintiff filed a reply.

For the following reasons, the Court grants Plaintiff’s request for remand.

PROCEDURAL BACKGROUND

On November 29, 2010, Plaintiff filed an application for disability insurance benefits

(“DIB”) with the U.S. Social Security Administration (“SSA”) alleging that she became disabled

on July 1, 2009. Plaintiff’s application was denied initially and upon reconsideration. On October

3, 2012, Administrative Law Judge (“ALJ”) Angelita Hamilton held a hearing at which Plaintiff,

with an attorney, and a vocational expert (“VE”) testified. On October 29, 2012, the ALJ issued a

decision finding Plaintiff was not disabled. The ALJ’s decision became the Commissioner’s final

decision

when the Appeals Council denied Plaintiff’s request for review on October 1, 2013. See 20 C.F.R.
§ 404.981. Under 42 U.S.C. § 405(g), Plaintiff initiated this civil action for judicial review of the

Commissioner’s final decision.

The ALJ made the following findings under the required five-step analysis:

1. The claimant met the insured status requirements through December 31, 2012.

2. The claimant has not engaged in substantial gainful activity since July 1, 2009, the

alleged onset date. 

3. The claimant has the following severe impairments: fibromyalgia; carpel tunnel

syndrome of the right wrist; degenerative disc disease; nerve damage; cervical

spondylosis; lumbar spondylosis; diverticulitis; and repetitive use syndrome. 

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

meets or medically equals the severity of one of the listed impairments. 

5. The claimant has the residual functional capacity to lift and carry 10 pounds

occasionally; stand/walk for 2 hours in an 8-hour workday; and sit for up to 6 hours

in an 8-hour workday. She can never climb ladders, ropes, or scaffolds, but can

occasionally climb ramps and stairs and occasionally balance, stoop, crouch, and

crawl. She can never kneel. She can occasionally rotate her neck and occasionally

bilaterally reach sideways, forward and overhead. She can only have occasional

exposure to extreme temperatures, wetness and humidity. She must avoid driving and

can never be exposed to hazards such as raw chemicals and solutions, moving

machinery, and unprotected heights. 

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

7. The claimant was born on April 22, 1963, and was 46 years old, which is defined

as a younger individual age 45-49, on the alleged disability date. 

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

9. Transferability of jobs skills is not an issue in this case because the claimant’s past

relevant work is unskilled. 

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 can perform. 

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

Act, from July 1, 2009 through October 29, 2012. 

2
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 was 46 years old at the alleged on-set of disability, and 49 years six months when

the ALJ’s decision was issued. Plaintiff suffers from fibromyalgia, carpel tunnel syndrome,

degenerative disc disease, nerve damage, cervical spondylosis, lumbar spondylosis, diverticulitis,

and repetitive use syndrome. In 2009, Plaintiff was treated by Dr. Mark DeHaan for her carpel

tunnel syndrome, which included surgery on her right wrist. In 2012, Plaintiff started treatment with

Dr. Aleksander Skarzynski. Dr. Skarzynski opined that Plaintiff’s fibromyalgia, degenerative disc

disease, irritable bowel syndrome, anxiety, and carpel tunnel syndrome created multiple restrictions

on Plaintiff’s ability to work. 

At the hearing, the VE testified at the hearing that a hypothetical individual with the adopted

RFC could perform the jobs of surveillance system monitor, telephone information clerk/receptionist

or gate guard. The Dictionary of Occupational Titles (“DOT”) listed telephone clerk as semi-skilled.

In addition, the DOT listed the gate guard as both semi-skilled and light in exertion. The VE testified

that in his experience sedentary unskilled versions of these jobs were available. 

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

3
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)). “[I]f the Commissioner commits an error of law,” the Court may reverse

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

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

1997)).

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

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

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

F.3d 300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). An ALJ must

4
“‘build an accurate and logical bridge from the evidence to [the] conclusion’ so that, as a reviewing

court, we may assess the validity of the agency’s final decision and afford [a claimant] meaningful

review.” Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007) (quoting Scott, 297 F.3d at 595)); see

also O’Connor-Spinner, 627 F.3d at 618 (“An ALJ need not specifically address every piece of

evidence, but must provide a ‘logical bridge’ between the evidence and his conclusions.”); Zurawski

v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (“[T]he ALJ’s analysis must provide some glimpse into

the reasoning behind [the] decision to deny benefits.”).

DISABILITY STANDARD

To be eligible for disability benefits, a claimant must establish that she suffers from a

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

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

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

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

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

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

prevent her from engaging in any other type of substantial gainful activity that exists in significant

numbers in the economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. § 404.1520(e)-(f).

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). 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

5
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 functioning 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); 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 (Jul. 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). 

ANALYSIS

A. Credibility 

The Plaintiff argues that the ALJ erred when she concluded that the Plaintiff’s testimony was

not credible based on the kind of treatment received and that the ALJ used impermissible boilerplate

language in determining Plaintiff’s credibility. The Commissioner argues that the ALJ reasonably

found Plaintiff’s claims not credible. 

6
The ALJ must weigh the claimant’s subjective complaints, the relevant objective medical

evidence, and any other evidence of the following factors:

(i) [The claimant’s] daily activities;

(ii) The location, duration, frequency, and intensity of [] pain or other symptoms;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any medication . . . ;

(v) Treatment . . . for relief of [] pain or other symptoms;

(vi) Any measures . . . used to relieve []pain or other symptoms . . . ; and

(vii) Other factors concerning [] functional limitations and restrictions 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

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 her 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 did not find the Plaintiff’s description of her symptoms credible because she “would

expect the claimant to make a greater effort to seek medical attention for her fibromyalgia and

diverticulosis if her symptoms were as severe as she testified during the hearing.” AR 24. However,

the ALJ “must not draw any inferences about an individual’s symptoms and their functional effects

7
from a failure to seek or pursue regular medical treatment without first considering any explanations

that the individual may provide” and “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, at *7; see also 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 [to follow a treatment plan] unless the ALJ has

explored the claimant’s explanations as to the lack of medical care.”) (quoting SSR 96-7p). In this

case, the ALJ did not question Plaintiff about her failure to seek other treatments, even though the

record indicates that financial constraints kept her from being able to afford certain prescriptions,

including preventing her from filing a prescription for Lyrica to treat her fibromyalgia. AR 390. See

e.g., Craft, 539 F.3d at 679 (“Here, although the ALJ drew a negative inference as to [the plaintiff]’s

credibility from his lack of medical care, she neither questioned him about his lack of treatment or

medicine noncompliance during that period, nor did she note that a number of medical records

reflected that [the plaintiff] had reported an inability to pay for regular treatment and medicine.”).

The ALJ found “the claimant’s statements concerning the intensity, persistence and limiting

effects of these symptoms . . . not credible to the extent they are inconsistent with the above residual

functional capacity,” AR 23, language that Plaintiff argues is impermissibly boilerplate. Regarding

this boilerplate language, the Seventh Circuit Court of Appeals has noted 

that the assessment of a claimant’s ability to work will often . . .

depend heavily on the credibility of her statements concerning the

8
“intensity, persistence and limiting effects” of her symptoms, but the

passage implies that ability to work is determined first and is then

used to determine the claimant’s credibility. That gets things

backwards. The administrative law judge based his conclusion that

[claimant] can do sedentary work on his determination that she was

exaggerating the severity of her headaches. Doubts about credibility

were thus critical to his assessment of ability to work, yet the

boilerplate implies that the determination of credibility is deferred

until ability to work is assessed without regard to credibility, even

though it often can’t be.

Bjornson v. Astrue, 671 F.3d 640, 645-46 (7th Cir. 2012). Although the boilerplate language was

included in this case, the ALJ addressed Plaintiff’s credibility, including the ALJ’s consideration

of Plaintiff’s lack of medical care discussed above. Accordingly, the Court will not remand on the

basis of the ALJ’s use of the boilerplate language. See Carter v. Astrue, 413 F. App’x 899 (7th Cir.

2011) (use of boilerplate language does not necessitate demand when “[t]he ALJ dedicated nearly

three pages of her opinion to detailing her adverse credibility finding”).

The ALJ improperly relied on Plaintiff’s failure to seek treatment to find her less than

credible. On remand, the ALJ is directed to fully consider Plaintiff’s testimony and the entirety of

the record in compliance with the applicable directives. Although not remanded on use of the

boilerplate language, the Court suggests the ALJ clearly separate her credibility and RFC analysis. 

B. Residual Functional Capacity 

Plaintiff argues that the ALJ erred when she did not give significant weight to the treating

physician’s opinion and that the evidence does not support the RFC found by the ALJ. The

Commissioner argues the ALJ fully considered the opinions and that the RFC was based on the

medical and non-medical evidence. 

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

her limitations. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); see also 20 C.F.R. §

9
404.1545(a)(1). In evaluating a claimant’s RFC, an ALJ is expected to take into consideration all

of the relevant evidence, including both medical and non-medical evidence. See 20 C.F.R. §

404.1545(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 at *7. Although an ALJ is not required to discuss every piece of evidence, she must

consider all of the evidence that is relevant to the disability determination and provide enough

analysis in her 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 (quoting Steele v. Barnhart, 290 F.3d 936,

941 (7th Cir. 2002)). 

The ALJ found that Plaintiff is capable of sedentary work with a number of postural

limitations. AR 22. Plaintiff’s treating physician Dr. Skarzynski, however, placed significantly more

limitations on Plaintiff in two separate opinions. “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

10
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. To be “substantial,” conflicting

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

support a conclusion.” Id. (citing Richardson v. Perales, 402 U.S. 389 (1971)); see also Schmidt,

395 F.3d at 744.

If the ALJ declines to give a treating source’s opinion controlling weight, she must still

determine what weight to give it according to the following factors: the length, nature, and extent

of the physician’s treatment relationship with the claimant; whether the physician’s opinions were

sufficiently supported; how consistent the opinion is with the record as a whole; whether the

physician specializes in the medical conditions at issue; and other factors, such as the amount of

understanding of the disability programs and their evidentiary requirements or the extent to which

an acceptable medical source is familiar with other information in the claimant’s case. 20 C.F.R. §

404.1527(c)(2)(i)-(ii), (c)(3)-(6); see also Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008). “If the

ALJ discounts the [treating] physician’s opinion after considering these factors, [the Court] must

allow that decision to stand so long as the ALJ ‘minimally articulated’ [her] reasons.” Elder, 529

F.3d at 415 (quoting Berger v. Astrue, 516 F.3d 539, 545 (7th Cir. 2008)); see also Punzio v. Astrue,

630 F.3d 704, 710 (7th Cir. 2011) (“[W]henever an ALJ does reject a treating source’s opinion, a

sound explanation must be given for that decision.”); Schmidt, 496 F.3d at 842 (“An ALJ thus may

discount a treating physician’s medical opinion if it . . . ‘is inconsistent with the opinion of a

consulting physician or when the treating physician’s opinion is internally inconsistent, as long as

he minimally articulates his reasons for crediting or rejecting evidence of disability.’”) (quoting

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

11
Dr. Skarzynski was Plaintiff’s treating physician since January 2012. The ALJ did not

address the factors enumerated in 20 C.F.R. § 404.1527(c) as they applied to Dr. Skarzynski. The

ALJ wrote that Dr. Skarzynski’s “assessments are completely inconsistent by the evidence, which

shows only conservative treatment for the majority of the claimant’s physical impairments and a

good recovery from her carpal tunnel release.” AR 25. The ALJ also explained that she gave little

weight to his opinions because “Dr. Skarzynski’s own treatment records are very sparse and do not

support his extreme restrictions.” Id. The ALJ, without any explanation, then continued:

The undersigned notes that the possibility always exists that a doctor

may express an opinion in an effort to assist a patient with whom he

or she sympathizes for one reason or another. Another reality with

[sic] should be mentioned is that patients can be quite insistent and

demanding in seeking supportive notes or reports from their

physicians, who might provide such a note in order to satisfy their

patients’ requests and avoid unnecessary doctor/patient tension.

While it is difficult to confirm the presence of motives, they are more

likely in situations where the opinion in question departs substantially

from the rest of the evidence of the record, as in the current case. 

AR 25-26. 

The Court recognizes that the treatment records are minimal in this case. Nevertheless, the

ALJ does not identify which medical evidence contradicts Dr. Skarzynski’s other than “conservative

treatment for the majority of the claimant’s physical impairments” and a “good recovery from her

carpal tunnel release.” 

The Seventh Circuit has repeatedly held that ALJs are not to make their own independent

medical findings. See, e.g., Myles v. Astrue, 582 F.3d 672, 677-78 (7th Cir. 2009); Blakes v.

Barnhart, 331 F.3d 565, 570 (7th Cir. 2003); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996).

Judges have been warned not to “succumb to the temptation to play doctor” because “lay intuitions

about medical phenomena are often wrong.” Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990)

12
(citing cases). The ALJ may “consider conservative treatment in assessing the severity of a

condition,” but should cite medical evidence about what kind of treatment would be appropriate.

Brown v. Barnhart, 298 F. Supp. 2d 773, 797 (E.D. Wis. 2004) (citing Dominguese v. Massanari,

172 F. Supp. 2d 1087, 1096 (E.D. Wis. 2001)). Here the ALJ did not cite to medical evidence about

what kind of treatment would be appropriate. Further, what medical evidence the ALJ does

specifically cite to - the good recovery from her carpal tunnel release on one wrist - does not address

the fact that Plaintiff was diagnosed with carpel tunnel in both wrists, nor the numerous other

restrictions Dr. Skarzynski placed on Plaintiff. 

The ALJ’s discrediting of Dr. Skarzynski’s opinions concerns the Court because it is not

apparent what evidence the ALJ did base the RFC on after dismiss these opinions. The ALJ also

gave little weight to Dr. Corcoran’s opinion, a consultant for a state agency, but appeared to adopt

his conditions with additional, and unexplained, limitations. Further, even though she gave Dr.

DeHann’s opinion considerable weight, the ALJ found Plaintiff could lift and carry 10 pounds,

significantly more than the 3-5 lbs that he opined was appropriate. The ALJ stated that she

considered the lower weight limitation temporary since Dr. DeHann later cleared Plaintiff after her

carpal tunnel surgery. However, as described above, surgery was only conducted on one of

Plaintiff’s affected wrists.

Because the ALJ erred in failing to give a sound explanation for her rejection of the treating

doctor’s opinions and does not explain how she arrived at the RFC, the Court remands the ALJ’s

RFC determination. The Court remands for the ALJ develop a new RFC and the ALJ is reminded

to build a ‘logical bridge’ from the evidence to her conclusion. See Suide v. Astrue, 371 F. App’x

684, 690 (7th Cir. 2010) (“[I]t is the evidentiary deficit left by the ALJ’s rejection of his

13
reports—not the decision itself—that is troubling. The rest of the record simply does not support the

parameters included in the ALJ’s residual functional capacity determination, such as an ability to

“stand or walk for six hours” in a typical work day . . .”); Briscoe v. Barnhart, 425 F.3d 345, 352

(7th Cir. 2005) (“[T]he ALJ did not explain how he arrived at these conclusions; this omission in

itself is sufficient to warrant reversal of the ALJ’s decision.”); Barrett v. Barnhart, 355 F.3d 1065

(7th Cir.2004) (finding reversible error when ALJ determined that claimant could stand for two

hours because there was no medical evidence to support such a conclusion).

C. Borderline Age 

Plaintiff also argues that the ALJ erred when she mechanically applied the age categories.

Commissioner argues the age category was properly applied, the facts and circumstances did not

warrant using another age category and the ALJ was not required to use an older age category. 

The ALJ is instructed to take a claimant’s age into account when determining whether she

will be able to work, and the regulations explicitly state that the ALJ may “not apply the age

categories mechanically in a borderline age situation.” 20 C.F.R. § 404.1563(b). A claimant between

the ages of 50 and 54 is considered “closely approaching advanced age,” and the ALJ is directed to

“consider that [the claimant’s] age along with severe impairment(s) and limited work experience

may seriously affect [the claimant’s] ability to adjust to other work.” 20 C.F.R. § 404.1563(d).

Although claimants under the age of 50 are generally considered part of the “younger person” age

group, “in some circumstances, [the ALJ must] consider that persons age 45-49 are more limited in

their ability to adjust to work.” 20 C.F.R. § 404.1563(c). The Medical Vocational Guidelines also

take a claimant’s age into account. 20 C.F.R. § 404, Subpt. P, App. 2.

Plaintiff was 46 years old on the alleged disability onset date and was therefore a younger

14
individual under the guidelines. However, on the date of the ALJ’s decision, Plaintiff was 49 years

and six months - six months away from 50 years old when she would be considered “closely

approaching advanced age.” “Although case law on this issue has not been well-developed in the

Seventh Circuit, district courts have reversed and remanded an ALJ’s decision where a borderline

age situation exists but there is no evidence the ALJ considered the issue.” Zent v. Astrue, No.

1:10-CV-80, 2010 WL 5231314, at *7 (N.D. Ind. Dec. 16, 2010) (listing cases); see also Sopko v.

Colvin, No. 12 C 6240, 2013 WL 5497276, at *11 (N.D. Ill. Oct. 3, 2013) (“[L]ike many other

district courts in this circuit, we conclude that the ALJ’s failure to acknowledge whether he

considered claimant’s borderline age situation or otherwise explain his age category determination

requires remand.” (citing cases)). There is no way for the Court to trace the ALJ’s reasoning to

determine if she applied the age categories mechanically or appropriately “consider[ed] whether to

use the older age category after evaluating the overall impact of all the factors of [Plaintiff’s] case.”

20 C.F.R. § 404.1563(b); see also Anderson v. Astrue, No. 09 C 2399, 2011 WL 2416265, at *14

(N.D. Ill. June 13, 2011) (“The ALJ must, at a minimum, acknowledge that he considered the

borderline-age issue non-mechanically, and doing so likely requires some explanation, however

brief, of the conclusion he reached.”). The Court also “reject[s] the Commissioner’s assertion that

this case does not involve a borderline situation. Where, as here, claimant was approximately six

months away from the next age category at the time of the ALJ’s hearing and decision, case law

dictates that a borderline situation may in fact exist.” Sopko 2013 WL 5497276, at *11 (N.D. Ill. Oct.

3, 2013) (citing cases). On remand, the ALJ need not automatically re-classify Plaintiff as an

“individual closely approaching advanced age,” but must consider whether re-classification is

appropriate and give enough explanation of her reasoning to permit review.

15
D. VE Testimony 

Plaintiff argues that the ALJ erred when she accepted the VE’s testimony that diverged from

the DOT. The Commissioner argues that the ALJ properly relied on the VE’s experience and

Plaintiff did not cross-examine the VE regarding the issue at the hearing, which waived the

argument. 

At the hearing, the VE testified that a hypothetical individual with the RFC adopted by the

ALJ could perform the jobs of surveillance system monitor, telephone information clerk, and gate

guard, even though a telephone information clerk was semi-skilled per the DOT and the gate guard

was light exertional level and semi-skilled, making both positions in conflict with the RFC adopted

by the ALJ. The VE testified that in his experience unskilled and non-exertional versions of these

positions were available, without any further evidence, and the ALJ apparently accepted this

explanation without any additional questioning. 

In this case, new VE testimony will likely be required after the credibility and RFC

determinations are corrected as described above, so the Court need not directly address Plaintiff’s

arguments. However, the Court notes “[a]t minimum, a vocational expert relying on personal

experience, without any citation of objective reports or documents, must provide some specificity

concerning the facts, figures, or other data that form the basis of his testimony.” Smith v. Astrue, No.

09 C 2392, 2010 WL 3526655, at *17 (N.D. Ill. Sept. 1, 2010). The Court is concerned with another

component of the VE’s testimony. Recently, the Seventh Circuit Court of Appeals has questioned

the appropriateness of relying on “job descriptions used by the Social Security Administration come

from a 23-year-old edition of the Dictionary of Occupational Titles, which is no longer published,

and mainly moreover from information from 1977 – 37 years ago.” Browning v. Colvin, 766 F.3d

16
702, 709 (7th Cir. 2014). Additionally, the Browning court expressed concern, particularly relevant

in this case where it is not clear how the VE got the non-skilled and non-exertional job numbers, that

“[t]here is no official source of number of jobs for each job classification in the Dictionary of

Occupational Titles . . . [a]nd many of the[ VEs] estimate the number of jobs of a type the applicant

for benefits can perform by the unacceptably crude method of dividing the number of jobs in some

large category (which may be the only available data) by the number of job classifications in the

category.” Id. Accordingly, on remand, the ALJ is reminded to inquire into the VE’s departure form

the DOT and explain his rationale for accepting the deviation and inquire into the source of the VE’s

job numbers. 

E. Remedy

Plaintiff requests that the Court reverse the Commissioner’s decision and remand for an

award of benefits. An award of benefits is appropriate “only if all factual issues have been resolved

and the record supports a finding of disability.” Briscoe, 425 F.3d at 356. In this case, the ALJ failed

to develop the record and draw a logical bridge from the evidence to her conclusions. Additionally,

although Plaintiff requests an award of benefits, she fails to present a developed argument in favor

of doing so. The ALJ must review the record in accordance with the regulations and fully explain

how all of Plaintiff’s limitations are incorporated into the RFC. These are issues that can only be

resolved through further proceedings on remand. Accordingly, this matter is remanded for further

proceedings. 

CONCLUSION

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

in Support of Reversing the Decision of the Commissioner of Social Security [DE 27] and

17
REMANDS this matter for further proceedings consistent with this opinion. However, the Court

DENIES Plaintiff's request to award benefits. 

SO ORDERED this 27th day of February, 2015.

s/ John E. Martin 

MAGISTRATE JUDGE JOHN E. MARTIN

UNITED STATES DISTRICT COURT

cc: All counsel of record

18