UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

LAUREN ANN KORDECK, )

Plaintiff, )

)

v. ) CAUSE NO.: 2:14-CV-431-JEM

)

CAROLYN W. COLVIN, )

Acting Commissioner of the )

Social Security Administration, )

Defendant. )

OPINION AND ORDER

This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Lauren Ann

Kordeck on November 21, 2014, and Plaintiff’s Brief in Support of her Motion to Reverse the

Decision of the Commissioner of Social Security [DE 18], filed by Plaintiff on June 12, 2015. 

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

for further proceedings. On July 24, 2015, the Commissioner filed a response, and on August 7,

2015, Plaintiff filed a reply. For the following reasons, the Court grants Plaintiff’s request for

remand.

PROCEDURAL BACKGROUND

On April 23, 2012, Plaintiff filed an application for benefits alleging that she became

disabled on May 2, 2011. Plaintiff’s application was denied initially and upon reconsideration. 

On July 23, 2013, Administrative Law Judge (“ALJ”) Henry Kramzyk held a hearing at which

Plaintiff, with an attorney representative, and a vocational expert (“VE”) testified. On

September 13, 2013, the ALJ issued a decision finding that Plaintiff was not disabled. 

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

1. The claimant meets the insured status requirements of the Social Security

Act through December 31, 2016.
2. The claimant has not engaged in substantial gainful activity since May 2,

2011, the alleged onset date.

3. The claimant had the following severe impairments: seizure disorder,

amnesic disorder, depression, and anxiety, with a history of substance use.

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

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

404, Subpart P, Appendix 1.

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

work except that the claimant is limited to no more than occasionally

climbing ramps and stairs, but never climbing ladders, ropes, or scaffolds,

kneeling, or crawling, and is limited to no more than occasional balancing,

stopping, or crouching. The claimant is able to understand, remember,

and carry out short, simple, repetitive instructions. She is able to sustain

attention and concentration for two hour periods at a time and for eight

hours in the workday on short, simple, repetitive instructions. She is able

to use judgment in making work decisions related to short, simple,

repetitive instructions. She requires an occupation with set routine and

procedures, and few changes during the workday. The claimant is unable

to engage in fast-paced production work. However, she is able to

maintain regular attendance and be punctual within customary tolerances

and perform activities within a schedule. The claimant must avoid all

exposure to wetness, including wet, slippery, or uneven surfaces. The

claimant must avoid all exposure to wetness, including wet, slippery, or

uneven surfaces. The claimant must avoid all exposure to hazards, such as

unprotected heights and dangerous machinery, and she is unable to drive

vehicular equipment as part of her employment duties. 

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

7. The claimant was 23 years old, defined as a younger individual, on the

alleged disability onset date.

8. The claimant has at least a high school education and is able to

communicate in English (20 CFR 416.964). 

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

disability because using the Medical-Vocational Rules as a framework

supports a finding that the claimant is not disabled whether or not she has

transferable job skills.

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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 May 2, 2011, through the date of this decision.

The Appeals Council denied Plaintiff’s request for review and denied her request to

reopen the decision, leaving the ALJ’s decision the final decision of the Commissioner. 

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

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

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

U.S.C. § 405(g).

FACTS

Plaintiff suffered brain injury in a car accident in 2004. On May 2, 2011, Plaintiff went

to the emergency room for a seizure, and returned to the emergency room on May 13, 2011, and

in August 2011 with additional seizures. She was diagnosed with unspecified epilepsy, cannabis

abuse, memory loss, and diplopia. Neurologist Dr. Maniar first examined Plaintiff in the

emergency room in May 2011 and continued to treat her through the beginning of 2012. He put

her on medication for her seizures which she complained caused abdominal pain and loose stool. 

He opined that Plaintiff should not drive and should not work. Plaintiff had several other

seizures in this time period, including another that caused her to seek emergency room treatment

in March 2012 and caused acute respiratory failure. In April 2012 Plaintiff began treatment with

neurologist Dr. Misra, who noted decreased memory and gastrointestinal side effects with her

medication. On July 21, 2012, Dr. Misra opined that Plaintiff was disabled and unable to work

in any capacity. He continued to treat her through at least the summer of 2013.

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Dr. Brown performed a consultative exam and administered a memory test in May 2012

at the behest of the state agency. She concluded that Plaintiff had a mild impairment in her

ability to sustain concentration and attention, and that Plaintiff’s ability to repeat oral

information immediately and to recall it twenty to thirty minutes later was in the extremely low

range. 

STANDARD OF REVIEW

The Social Security Act authorizes judicial review of the final decision of the agency and

indicates that the Commissioner’s factual findings must be accepted as conclusive if supported

by substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ

will reverse only if the findings are not supported by substantial evidence or if the ALJ has

applied an erroneous legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). 

Substantial evidence consists of “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005)

(quoting Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003)).

A court reviews the entire administrative record but does not reconsider facts, re-weigh

the evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its

judgment for that of the ALJ. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford

v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). 

Thus, the question upon judicial review of an ALJ’s finding that a claimant is not disabled within

the meaning of the Social Security Act is not whether the claimant is, in fact, disabled, but

whether the ALJ “uses the correct legal standards and the decision is supported by substantial

evidence.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citing O’Connor-Spinner v.

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Astrue, 627 F.3d 614, 618 (7th Cir. 2010); Prochaska v. Barnhart, 454 F.3d 731, 734-35 (7th

Cir. 2006); Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004)). “A reversal and remand

may be required, however, if the ALJ committed an error of law or if the ALJ based the decision

on serious factual mistakes or omissions.” Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir.

2014) (citations omitted).

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

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

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

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

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

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

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

at 595)); see also O’Connor-Spinner, 627 F.3d at 618 (“An ALJ need not specifically address

every piece of evidence, but must provide a ‘logical bridge’ between the evidence and his

conclusions.”); Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (“[T]he ALJ’s analysis

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

DISABILITY STANDARD

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

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U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). To be found disabled, the claimant’s impairment must

not only prevent her from doing her previous work, but considering her age, education, and work

experience, it must also prevent her from engaging in any other type of substantial gainful

activity that exists in significant numbers in the economy. 42 U.S.C. §§ 423(d)(2)(A),

1382c(a)(3)(B); 20 C.F.R. §§ 404.1520(e)-(f), 416.920(e)-(f).

When a claimant alleges a disability, Social Security regulations provide a five-step

inquiry to evaluate whether the claimant is entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4),

416.920(a)(4). The steps are: (1) Is the claimant engaged in substantial gainful activity? If yes,

the claimant is not disabled, and the claim is denied; if no, the inquiry proceeds to step two; (2)

Does the claimant have an impairment or combination of impairments that are severe? If not, the

claimant is not disabled, and the claim is denied; if yes, the inquiry proceeds to step three; (3)

Do(es) the impairment(s) meet or equal a listed impairment in the appendix to the regulations? 

If yes, the claimant is automatically considered disabled; if not, then the inquiry proceeds to step

four; (4) Can the claimant do the claimant’s past relevant work? If yes, the claimant is not

disabled, and the claim is denied; if no, then the inquiry proceeds to step five; (5) Can the

claimant perform other work given the claimant’s RFC, age, education, and experience? If yes,

then the claimant is not disabled, and the claim is denied; if no, the claimant is disabled. 20

C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); see also Scheck v. Barnhart, 357 F.3d 697,

699-700 (7th Cir. 2004).

At steps four and five, the ALJ must consider an assessment of the claimant’s 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

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96-8p, 1996 WL 374184 (July 2, 1996); 20 C.F.R. § 404.1545(a)) (other citations omitted). The

RFC should be based on evidence in the record. Craft v. Astrue, 539 F.3d 668, 676 (7th Cir.

2008) (citing 20 C.F.R. § 404.1545(a)(3)). The claimant bears the burden of proving steps one

through four, whereas the burden at step five is on the ALJ. Zurawski, 245 F.3d at 886; see also

Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995). 

ANALYSIS

A. Credibility Assessment

Plaintiff argues that the ALJ improperly evaluated Plaintiff’s credibility. The

Commissioner argues that the ALJ’s opinion is supported by substantial evidence.

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 your 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).

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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, 454 F.3d at 738.

The ALJ concluded that Plaintiff was not compliant with her medical treatment, and

therefore considered her less than credible. He noted her decision to continue to smoke

marijuana despite being told not to and drug screens indicating what he interpreted to be

inadequate therapeutic drug levels. However, the record that he points to indicates drug levels in

the expected concentration range, AR 786-87, and the ALJ does not point to any medical opinion

indicating that Plaintiff’s drug levels were inadequate because of non-compliance. Nor did the

ALJ question Plaintiff about her presumed non-compliance. The regulations make it clear that

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

effects from a failure to seek or pursue regular medical treatment without first 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

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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).

Another significant reason the ALJ gave for finding Plaintiff less than credible was that

she continued to go to school and do some work after the auto accident that caused her initial

coma and the beginning of her seizure disorder. However, as Plaintiff argues, Plaintiff did not

claim disability until 2011, and even before that date the record reflects that she needed

accommodations to allow her to finish her degree and maintain even part-time work. The Court

is unable to ascertain how Plaintiff’s limited abilities before her alleged disability onset date

make her less than credible about her abilities after that date.

Plaintiff also argues that the ALJ erred in finding Plaintiff less than credible because she

suffered a seizure when driving after having report that she did not drive because of her

impairments. Plaintiff argues that the record contains indications that she may have been cleared

to drive by her neurologist. Although it is not obvious from the record that Plaintiff had been

cleared to drive at the time of her hospitalization, the ALJ did not ask Plaintiff or her physicians

whether she had indeed been cleared to drive at the time of the seizure, and on remand the Court

recommends that the ALJ resolve inconsistencies in the record, particularly as to information he

is relying on to deem Plaintiff less than credible.

In addition, Plaintiff argues that the ALJ failed to consider the side effects of Plaintiff’s

medication, ignoring repeated instances where she complained about gastrointestinal issues that

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were side effects of her medications and could also directly affect her ability to work, in

contravention of the requirement that he take these into account. See SSR 96-7p,*7 (including

“side effects of any medication the individual takes or has taken to alleviate pain or other

symptoms” as one of the types of evidence “that the adjudicator must consider in addition to the

objective medical evidence when assessing the credibility of an individual’s statements”) (citing 

20 CFR 404.1529(c) and 416.929(c)) (emphasis added). The ALJ concluded that Plaintiff’s

complaints about her medication’s side effects were only partially credible, but failed to account

for her multiple reports of limiting side effects throughout the record. Plaintiff’s failure to

continually mention her side effects at each subsequent visit does not necessarily mean she did

not continue to suffer from them; the Seventh Circuit Court of Appeals has expressed

“skeptic[ism] that a claimant’s failure to identify side effects undermines her credibility–after all,

not everyone experiences side effects from a given medication, and some patients may not

complain because the benefits of a particular drug outweigh its side effects.” Terry v. Astrue,

580 F.3d 471, 477 (7th Cir. 2009). Although he recognized that Plaintiff suffered from at least

some gastrointestinal side effects, the ALJ did not explain why or to what extent he found her

complaints of side effects less than credible, and only incorporated them into the RFC by

limiting Plaintiff to less than sedentary work. The Court fails to follow the ALJ’s logic that the

need to rush to the bathroom even once per day as being accounted for in a limitation to

sedentary employment. 

The ALJ failed to question Plaintiff or obtain any medical opinion about her supposed

lack of compliance with treatment, failed to consider the limiting effects of her medication’s side

effects, and used her activities prior to her alleged disability onset date to find her less than

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credible now, errors requiring remand. On remand, the ALJ is directed to fully consider

Plaintiff’s testimony and the entirety of the record in compliance with the applicable directives

when determining her credibility.

B. Residual Functional Capacity

Plaintiff argues that the ALJ did not properly evaluate the medical opinions in the record

and did not explain how the record supports the limitations in the RFC. The Commissioner

argues that the ALJ’s findings are supported by substantial 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. §§ 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 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 at *7. 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

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evidence to his conclusion.” Scott, 297 F.3d at 595 (quoting Steele v. Barnhart, 290 F.3d 936,

941 (7th Cir. 2002)).

Plaintiff argues that the ALJ improperly rejected the opinion of Plaintiff’s treating

neurologist. The Commissioner argues that the ALJ rejected it for well-supported reasons.

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

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

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

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

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

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

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

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

adequate to support a conclusion.” Id.; see also Schmidt v. Barnhart, 395 F.3d at 744.

In this case, neurologist Dr. Misra began treating Plaintiff in April 2012, and in July 2012

stated that “she is disabled and is unable to work in any capacity.” AR 578. Dr. Maniar was

also a treating neurologist who treated Plaintiff several times between May 2011 and March

2012, and opined that Plaintiff should not drive or work. AR 451, 456. Plaintiff argues that the

ALJ did not mention these statements of disability in his analysis and did not evaluate Dr.

Maniar’s opinion according to the regulations. The Commissioner argues that the statements are

not medical source opinions and that the ALJ did refer to Dr. Maniar’s clinical notes. 

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

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

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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). “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’ his reasons.” Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008)

(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 v. Astrue, 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)). He must,

however, explain what weight he is giving to the opinion. Hamilton v. Colvin, 525 F. App’x

433, 438 (7th Cir. 2013) (“The most obvious problem is that the ALJ said she was giving the

doctors’ opinions ‘appropriate weight’ without specifying how much weight is appropriate.”).

The ALJ gave little weight to Dr. Misra’s opinion, stating that Dr. Misra’s medical

source statement “is inconsistent with the doctor’s own treatment records,” pointing specifically

to a letter to another physician indicating that the ALJ represented as “not[ing] . . .that she is

‘doing quite well’ and that she is without side effects.” AR 21. In fact, that is a

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misrepresentation of the letter, which refers to Plaintiff’s complaints of multiple ongoing side

effects, including GI issues, alopecia, and weight gain. The letter states that “[s]he is doing well,

from a seizure perspective,” but also mentions a number of health concerns and does not state

that the seizure medication is expected to keep away seizures entirely. In addition to

misrepresenting the note he relied on as inconsistent with the neurologist’s statement of

disability, the ALJ also failed to address the other factors that might lead him to give weight to

Dr. Misra’s opinion, including its consistency with the records of Plaintiff’s other treating

neurologist, Dr. Maniar, his specialty, or his familiarity with Plaintiff’s case. A two week period

without a seizure and a statement indicating optimism about a line of treatment is not obviously

inconsistent with an opinion about Plaintiff’s ability to maintain full-time work over more than

two weeks leaving the Court unable to trace the ALJ’s reasoning or conclude that he gave the

appropriate weight to Plaintiff’s treating neurologist’s opinion. 

The ALJ did not explain how much weight he gave to the opinion of Dr. Maniar and

appears to have completely discounted it without explanation, despite his opinion, identical to

Dr. Misra’s, that Plaintiff could not work. An ALJ may not simply ignore an opinion that

addresses a plaintiff’s ability to work, but must “evaluate all the evidence in the case record to

determine the extent to which the opinion is supported by the record.” SSR 96-5p, 1996 WL

374183, at *3, *5 (July 2, 1996); see also Hamilton, 525 F. App’x at 438-39 (remanding in part

for failure to address conflict between the RFC and physicians’ opinions about here capacity). 

“While the ALJ is right that the ultimate question of disability is reserved to the Commissioner, a

treating physician’s opinion that a claimant is disabled ‘must not be disregarded.’”) (quoting

SSR 96–5p) (citing 20 C.F.R. § 416.927(e)(2)); Roddy, 705 F.3d at 636 (“Even though the ALJ

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was not required to give [the treating physician]’s opinion [that the claimant could not handle a

full-time job] controlling weight, he was required to provide a sound explanation for his decision

to reject it.”). In this case, the ALJ did not even identify his decision to reject Dr. Miniar’s

opinion, and, as described above, his reasons for dismissing Dr. Misra’s opinion are faulty. 

These failures are particularly concerning given the consistency between the two treating

neurologist’s reports and their repeated statements that Plaintiff is unable to work. This matter

must be remanded for a thorough evaluation of Plaintiff’s treating neurologist’s statements about

Plaintiff’s ability to work.

The ALJ stated that he gave “partial weight” to the assessments of the state agency

consultants’ opinions, and, as described above, little weight to one of Plaintiff’s treating

neurologist, barely mentioning the other. The ALJ mentions the findings of consultative

psychologist Dr. Brown with approval, but does not explain the weight given to her opinion. 

Accordingly, it is not apparent what medical source was given weight, and there is no indication

that the ALJ gave any weight to any treating physician. Plaintiff also argues that the ALJ erred

in giving even partial weight to the state agency consultants. In particular, Plaintiff argues that

the finding that plaintiff could pay attention to tasks for sufficient periods of time and complete

them is not supported by substantial evidence. Dr. Brown, who examined Plaintiff on behalf of

the agency, found that Plaintiff’s “ability to recall verbal and visual information after a 20 to 30

minute delay is in the Extremely Low range.” AR 528. Plaintiff argues that this, as well as the

other instances in the record of memory issues, indicate that there is no basis for the nonexamining consultants’ conclusions about Plaintiff’s ability to concentrate. Plaintiff also argues

that the consultants’ assessment of the record occurred long before the hearing, and that Plaintiff

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had two seizure events requiring emergency care after the assessment. On remand, the ALJ is

instructed to fully review all of the medical evidence in the record and to obtaining updated

information as needed. See, e.g., Barnett, 381 F.3d at 669 (“An ALJ has a duty to solicit

additional information to flesh out an opinion for which the medical support is not readily

discernable.”) (citing 20 C.F.R. § 404.1527(c)(3); SSR 96-2p, 1996 WL 374188 at *4 (July 2,

1996)); 20 C.F.R. §§ 404.1512(d)(1), 416.919(b)); see also Nelms v. Astrue, 553 F.3d 1093,

1098 (7th Cir. 2009) (citing 20 C.F.R. §§ 416.912(d)-(f), 416.919, 416.927(c)(3)) (other citations

omitted).

Plaintiff also argues that the RFC does not reflect all of the limitations that the ALJ

found. He stated that she would be able to maintain attention and concentration for two hours at

a time and for eight hours in a work day, but Plaintiff argues that the ALJ fails to describe what

happens to Plaintiff’s concentration at the end of a two-hour period. The Commissioner argues

that it is apparent that Plaintiff will need to take a break at the end of the two hours and that the

VE considered Plaintiff’s inability to focus for more than two hours at a time when he opined

that there were jobs available to Plaintiff. As Plaintiff argues, the RFC does not incorporate a

need for breaks every two hours or describe how long those breaks would need to be. Plaintiff

also argues that the limitation is not supported by the record, in which Dr. Brown describes

Plaintiff’s recall ability after twenty to thirty minutes as in the extremely low range. Although

she noted only a “mild” impairment as to concentration and attention, the ALJ has not drawn a

logical bridge between Plaintiff’s recall ability and mild impairment in concentration to the

ability to focus for two-hour blocks of time. In addition, as described above, the ALJ failed to

incorporate Plaintiff’s gastrointestinal side effects into the RFC, side effects which would be

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likely to require additional breaks and might affect the VE’s testimony. When an ALJ relies on

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

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

374 F.3d 470, 474 (7th Cir. 2004); see also Kasarsky v. Barnhart, 335 F.3d 539, 543 (7th Cir.

2003) (“Furthermore, to the extent the ALJ relies on testimony from a vocational expert, the

question posed to the expert must incorporate all relevant limitations from which the claimant

suffers.”) (citation omitted). If the VE is unaware of all of the Plaintiff’s limitations, he may

refer to jobs the Plaintiff cannot perform. Kasarsky, 335 F.3d at 543. On remand, the ALJ is

directed to properly weigh the medical evidence in the record, including supplementing the

record as necessary, and “must provide a ‘logical bridge’ between the evidence and his

conclusions” about the RFC. O’Connor-Spinner, 627 F.3d at 618. 

In this case, the ALJ failed to give controlling weight to the treating neurologists’

opinions regarding the nature and severity of Plaintiff’s impairments without explaining how the

opinions were inconsistent with other substantial evidence in the record, did not identify any

medical opinion from a treating or examining physician to which he gave greater weight, and

failed to identify the evidence on which he based Plaintiff’s RFC, particularly her ability to

concentrate for two hours at a time or what kind of breaks she would require. Accordingly, the

matter is being remanded.

C. Vocational Expert

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

determinations are corrected as described above, and the Court is particularly concerned with

one component of the VE’s testimony relied upon by the ALJ in this case. Recently, the Seventh

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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,” noting that “[n]o doubt many of the jobs have changed and some have

disappeared.” Browning v. Colvin, 766 F.3d 702, 709 (7th Cir. 2014). Additionally, the

Browning court expressed concern, particularly relevant in this case, 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. 

That concern is particular relevant in this case, where the VE testified that Plaintiff would be

able to perform work as a microfilm document preparer, DOT 249.587-018, a telephone quote

clerk (someone who provides stock quotations via telephone from information posted on an

electronic quote board), DOT 237.367-046, and a charge account clerk (who assists customers in

filling out and/or reviews credit card applications received by mail), DOT 205.367-014 - all jobs

that have been reduced significantly in number if not rendered obsolete by the rise of the

internet. However, as in Browning, in this case “the administrative law judge accepted without

comment” the VE’s claim “of the number of jobs . . . the plaintiff could perform that exist in the

plaintiff’s area.” Browning, 766 at 709.

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

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

he must incorporate all relevant limitations in his questioning of the VE. In addition, the Court

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recommends that the ALJ specifically ascertain the source of the VE’s opinion that the jobs

identified as able to be performed by Plaintiff do, in fact, actually exist in the regional economy.

D. 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 properly weigh the medical opinions in the record, to draw a logical bridge

from the evidence to his conclusions, or to properly assess Plaintiff’s credibility. 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 and make a proper

credibility determination. 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 her Motion to Reverse the Decision of the Commissioner of Social Security

[DE 18] and REMANDS this matter for further proceedings consistent with this opinion.

SO ORDERED this 18th day of February, 2016.

s/ John E. Martin 

MAGISTRATE JUDGE JOHN E. MARTIN

UNITED STATES DISTRICT COURT

cc: All counsel of record

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