IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

TERRI K. FLY, )

)

Plaintiff, )

)

vs. ) No. 3:14-CV-1840

)

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, Terri K. Fly. 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. section 405(g). 

BACKGROUND

On August 16, 2011, Plaintiff, Terri K. Fly (“Fly”), applied for

Social Security Disability Insurance Benefits (“DIB”) under Title II

of the Social Security Act, 42 U.S.C. section 401 et seq. On August

19, 2011, she also applied for Supplemental Security Income (“SSI”)

under Title XVI of the Social Security Act, 42 U.S.C. section 1381 et.
seq. 

Fly alleged her disability began on July 1, 2011. The Social

Security Administration denied her initial applications and also

denied her claims on reconsideration. On January 3, 2013, Fly

appeared with her attorney and testified at an administrative hearing

before Administrative Law Judge (“ALJ”) Edward P. Studzinski

(“Studzinski”). In addition, Leonard M. Fisher testified as a

vocational expert (“VE”). On April 5, 2013, ALJ Studzinski issued a

decision denying Fly’s claims and finding that Fly had not been under

a disability as defined in the Social Security Act. 

Fly requested that the Appeals Council review the ALJ’s decision,

but the request was denied. Accordingly, the ALJ’s decision became

the Commissioner’s final decision. See 20 C.F.R. § 422.210(a)(2005). 

Fly has initiated the instant action for judicial review of the

Commissioner’s final decision pursuant to 42 U.S.C. section 405(g).

DISCUSSION

Fly was born on February 23, 1961, and was 50 years old on the

alleged disability onset date. (Tr. 34). In the past, she has worked

as both a Certified Nursing Aid (“CNA”) and a home companion. (Tr.

22 and 219). Fly’s alleged impairments include hypertension,

bilateral knee osteoarthritis, obesity, and depression. (Tr. 15). 

Fly has a high school education. (Tr. 219). The medical evidence

is largely undisputed and has been set forth in great detail in both

-2-
the ALJ’s decision and the parties briefs. There is no reason to

repeat it in detail here, although pertinent details are discussed

below as needed.

Review of Commissioner’s 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

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 or

SSI 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

-3-
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) and 1382(a)(1). 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

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 Fly was not engaged in

substantial gainful activity even though she had worked continuously

since her alleged onset date,. (Tr. 14-15). The ALJ also found that

she suffered from multiple severe impairments. (Tr. 15). The ALJ

-4-
further found that Fly did not meet or medically equal one of the

listed impairments. (Tr. 17). The ALJ then determined that Fly

retained the physical residual functional capacity (“RFC”) to:

lift 20 pounds occasionally and 10 pounds

frequently. The claimant can stand and/or walk

for up to 4 hours in an 8-hour work period in 1-

hour increments in positions that allow her the

option to sit for at least 5 minutes every hour. 

The claimant can sit for 6 hours in an 8-hour

work period; however, she can never climb

ladders, ropes, or scaffolds, or kneel or crawl. 

Nevertheless, the claimant can occasionally climb

ramps and stairs, and balance, stoop, and/or

crouch. 

(Tr. 17). Based on Fly’s RFC, the ALJ found that Fly was capable of

performing her past relevant work as a home companion. (Tr. 22). 

Thus, Fly’s claim failed at step four of the evaluation process. 

Fly believes that reversal is required because the ALJ’s decision

was not supported by substantial evidence. More specifically, Fly

believes that the ALJ erred by: (1) improperly finding that Fly could

perform her past relevant work as a home companion; (2) improperly

assessing Fly’s RFC; and (3) improperly assessing Fly’s credibility. 

ALJ’s Finding that Fly Could Perform her Past Relevant Work

Fly worked as a CNA full time. She later worked part-time as a

home companion three hours a day, three days a week. At the time of

the hearing, she continued to work part-time as a home companion. The

VE testified, based on the first hypothetical posed by the ALJ, that

the hypothetical individual could perform the home companion or home

-5-
attendant job that Fly had performed previously. The ALJ ultimately

adopted both the limitations set forth in the hypothetical posed to

the VE and the VE’s finding that Fly could perform her past home

companion work. Fly contends that the ALJ erred by finding that she

can perform her past relevant work as a home companion because she

never performed the job of home companion at a level that equaled

substantial gainful activity and it therefore does not qualify as past

relevant work. 

At the hearing, the ALJ opined that Fly’s home companion work,

based on her earning history, did not appear to reach the level of

substantial gainful employment. (Tr. 37). The ALJ also noted in his

decision that Fly had not engaged in substantial gainful activity

since July 1, 2011. (Tr. 14). 

Substantial gainful activity and gainful work activity are

defined as follows: 

(a) Substantial work activity. Substantial work

activity is work activity that involves doing

significant physical or mental activities. Your

work may be substantial even if it is done on a

part-time basis or if you do less, get paid less,

or have less responsibility than when you worked

before.

(b) Gainful work activity. Gainful work activity

is work activity that you do for pay or profit. 

Work activity is gainful if it is the kind of

work usually done for pay or profit, whether or

not a profit is realized.

20 C.F.R. § 404.1572.

The regulations further provide that “[w]ork you have already

-6-
been able to do shows the kind of work that you may be expected to do. 

We consider that your work experience applies when it was done within

the last 15 years, lasted long enough for you to learn to do it, and

was substantial gainful activity.” See 20 C.F.R. § 404.1565(a) and

20 C.F.R. § 416.965(a). 

In Lauer v. Bowen, the claimant had worked part time as a loan

processor prior to his alleged disability. Lauer v. Bowen, 818 F.2d

636, 639 (7th Cir. 1987). His claim, like Fly’s, was denied at step

four of the sequential evaluation process when the ALJ concluded that

the claimant could perform his past relevant work as a loan processor. 

Id. at 637. On appeal, Lauer argued that this part-time job was not

“past relevant work.” The Seventh Circuit found that “‘previous

work’, in order to be considered ‘past relevant work,’ must first be

found to rise to the level of substantial gainful activity.” Id. at

639.

The Commissioner appears to concede that, in order to qualify as

“past relevant work,” the previous work must constitute substantial

gainful activity. However, the Commissioner argues that earning

history is only one method of determining whether past work

constitutes substantial gainful activity. While acknowledging that

the ALJ made an explicit finding that the home companion job did not

amount to substantial gainful activity, the Commissioner urges this

Court to conclude that the finding at step one does not prevent the

ALJ from finding that the very same work was substantial gainful

-7-
activity for another purpose. The Commissioner cites no cases to

support this argument and has not explained how the part-time home

companion work could meet the requirements of substantial gainful

activity under any method of making that determination. This Court

is not persuaded that the ALJ is free to find that work is substantial

gainful activity for one purpose but not for another purpose. And,

under Chenery, because the ALJ did not make this argument, the

Commissioner is not free to argue at this stage that the home

companion job was in fact substantial gainful activity. See SEC v.

Chenery Corp., 318 U.S. 80, 93-95(1943); Martinez v. Astrue, 630 F.3d

693, 694 (7th Cir. 2011)(“[I]n defiance of the principle of SEC v.

Chenery Corp., 318 U.S. 80, 87-88, 63 S.Ct 454, 87 L.Ed. 626 (1943),

the Justice Department’s lawyers who defend denials of disability

benefits often rely heavily on evidence not (so far as appears) relied

on by the administrative law judge, and defend the tactic by invoking

an overbroad conception of harmless error.”)(quoting Spiva v. Astrue,

628 F.3d 346 (7th Cir. 2010)). 

The VE erred by characterizing Fly’s past work as a home

companion as past relevant work. The ALJ, despite finding that the

home companion job did not constitute substantial gainful activity, 

nonetheless adopted this erroneous conclusion. Under Lauer, this

error requires reversal. See Lauer, 818 F.2d at 641 (noting that the

claimant may ultimately be found not disabled at step five based on

ability to perform the very same prior non-substantial gainful

-8-
activity, but finding that the Court had a “duty to ensure that agency

rules and regulations are properly promulgated, lawful and strictly

enforced.”). 

The ALJ’s Residual Functional Capacity Findings

 Fly claims that the ALJ did not base his RFC finding on

substantial evidence. SSR 96-8p provides that an “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).” SSR 96-8p. The Commissioner’s decision cannot stand

if it lacks either evidentiary support or an adequate discussion of

the issues. See Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345 (7th

Cir. 2005). 

Fly is particularly critical of the ALJ’s finding that she could 

stand and walk for up to four hours in an eight-hour day in one-hour

increments provided that she be allowed to sit for five minutes every

hour. (DE 16 at 9). Dr. Kelly, a treating physician, opined that Fly

could occasionally lift and carry ten pounds, frequently lift and

carry less than ten pounds, stand and walk for at least two hours in

an eight-hour workday, and sit for less than six hours in an eighthour day. (TR. 398-99). The ALJ rejected this opinion and Fly has

not challenged that decision before this Court. (TR. 20). State

agency medical consultants found that Fly could stand six hours in an

-9-
eight-hour day. (TR. 322, 343). The ALJ gave these opinions only

partial weight, finding that Fly had greater limitations than the

medical consultants found. (Tr. 21). There are no medical opinions

stating that Fly could stand four hours in a work day if she has a

five minute break each hour. When an ALJ rejects a limitation given

by a physician, he is left with an evidentiary deficit. See Suide v.

Astrue, 371 Fed. Appx. 684, 690 (7th Cir. 2010). While the final RFC

determination is, ultimately, a decision reserved to the Agency, the

ALJ is not free to choose whatever limit he likes. An ALJ is not a

doctor, and his limitations must find a basis in the evidence, whether

medical or non-medical. See 20 C.F.R. 404.1527(e)(2); Suide, 371 Fed.

Appx. at 689 (The ALJ is “not allowed to ‘play doctor’ by using her

own lay opinions to fill evidentiary gaps in the record.”). For

example, if an ALJ finds a claimant credible, an RFC limitation can

be based on the claimant’s testimony regarding symptoms. See SSR 98-

6p. And, an ALJ is “not required to rely entirely on a particular

physician’s opinion or choose between the opinions [of] any of the

claimant’s physicians” in determining a claimant’s RFC. Schmidt v.

Astrue, 496 F.3d 833, 845 (7th Cir. 2007); see Diaz v. Chater, 55 F.3d

300, 306 n.2 (7th Cir. 1995). But, it must nonetheless be clear to

the reviewing court how the ALJ concluded that Fly could stand for up

to four hours in an eight-hour day in one-hour increments provided

that she be allowed to sit for five minutes every hour. The

Commissioner notes that the ALJ indicated he included these additional

-10-
limitations to accommodate Fly’s hearing testimony (TR. 21). The ALJ,

however, rejected Fly’s testimony regarding limitations in her ability

to sit and stand, and the additional limitations imposed by the ALJ

fall far short of accommodating Fly’s testimony regarding her

abilities.1 As a result, the required “accurate and logical bridge

from the evidence to [the ALJ’s] conclusion” is missing. See Suide

v. Astrue, 371 Fed. Appx. at 690 (citing Clifford v. Apfel, 227 F.3d

863, 872 (7th Cir. 2000)). See also Garcia v. Colvin, 741 F.3d 758,

762 (7th Cir. 2013)(“No evidence supports this re-conclusion. No

physician testified - no medical records [re]vealed - that [claimant]

had the residual functional capacity ascribed to him by the

administrative law judge.”). While the ALJ was free to request

additional medical opinions, he was not free to select an RFC 

1

The ALJ’s “more restrictive” limits come nowhere close to

accommodating Fly’s testimony. She testified that she thought

she could stand for about ten to 15 minutes and walk about 30

minutes before needing a break. (Tr. 45). Furthermore,

following a discussion of the nature of Fly’s work at the time of

the hearing, when she was working three hours a day, three days a

week, this exchange occurred: 

ALJ: Now what would stop you ma’am from doing

say four hours a day, or say four days a

week?

Fly: My, once I get through doing, walking

and doing the things that I need to do, I

need help when I get home. My knees are very

hurting and, and I’m not very, my mind is not

focused right. And, from my pain all the

time and I’m just not like I used to be.

(Tr. 38). Fly certainly did not testify that she could stand

four hours a day so long as she had a five minute rest period

each hour. 

-11-
unsupported by the evidence, either medical or non-medical. See Green

v. Apfel, 204 F.3d 780, 781 (7th Cir. 2000)(noting that the social

security system is non-adversarial and ALJ’s are required to summon

a medical expert if necessary for them to make an informed decision.).

In this case, the precise amount of time that Fly can stand

and/or walk will likely be determinative of her case, making the ALJ’s

failure to explain how he reached this precise limitation even more

egregious. Fly is an individual closely approaching advanced age with

a high school education and no transferable work skills. As a result,

if the ALJ would have found Fly was limited to standing and walking

for no more than two hours in an eight-hour day, she would have been

found disabled. See 20 C.F.R. Part 404, Subpart P, Appendix 2,

201.12. Reversal is required.

The ALJ’s Credibility Determination

Fly also claims the ALJ committed numerous errors in assessing

her credibility. Having already determined that remand is necessary,

this Court finds no compelling reason to address each of Fly’s

credibility arguments in detail and expresses no opinion with regard

to most of them. There is one argument, however, that deserves some

discussion. 

The ALJ discredited Fly in part due to her lack of treatment and

noncompliance with prescribed treatment, such as aqua therapy. 

Although the ALJ explicitly stated that he had no doubt Fly’s non-

-12-
compliance was due to her financial situation, in finding Fly’s

testimony less than fully credible he noted “the complete lack of

evidence suggesting that the claimant sought lower cost options or

emergency room care.” (Tr. 19). 

The Commissioner concedes that the ALJ erred in referencing

emergency room care. (DE 20 at 19 (“As Plaintiff notes, the ALJ

apparently overstated the significance of her failure to pursue E/R

treatment.”)). On remand, the ALJ may not rely on a failure to seek

emergency room care as a basis for doubting the seriousness of Fly’s

allegations. See Hughes v. Astrue, 705 F.3d 276, 278 (7th Cir.

2013)(noting that an ALJ critical of a claimant for failing to get

care in a hospital emergency room “seemed unaware that emergency rooms

charge for their services and are required to treat an indigent only

if the indigent is experiencing a medical emergency.”); Goins v.

Colvin, 764 F.3d 677 (7th Cir. 2014) (similarly noting that hospitals

charge very high prices, are “assiduous” in collecting fees, and are

only required to treat indigents when they present with a medical

emergency).

As for the ALJ’s reliance on Fly’s failure to pursue lower cost

options, the ALJ should develop whether those options were available

to Fly before faulting her for failing to avail herself of them. 

Before an ALJ can rely on a lack of medical treatment to find a

claimant less than fully credible, he must first inquire into the

reason for the lack of treatment. See SSR 96-7p. He must consider

-13-
legitimate reasons for a lack of treatment, including an inability to

pay or a lack of access to free or low-cost medical services, before

drawing a negative inference about a claimant’s credibility. See

Brower v. Colvin, No. 2:12-CV-193-PRC, 2013 WL 5259238 (N.D. Ind.

Sept. 16, 2013). Ideally, when a claimant claims that they did not

get more treatment because they could not afford it, an ALJ would

follow up by inquiring whether they pursued low-cost options for

treatment. This Court notes, however, that the Seventh Circuit Court

of Appeals, in an unpublished opinion, suggested that this error may

not warrant reversal where a claimant is represented by counsel and

can be presumed to have put their best case forward. See Buchholtz

v. Barnhart, 98 Fed. Appx. 540 (7th Cir. 2004). This Court need not

decide whether the ALJ’s failure to inquire into the availability of

free or low-cost treatment requires remand because this case is being

remanded for other reasons. On remand, this area should be developed. 

Additional Proceedings are Necessary

Fly has requested that this Court remand this case for an award

of benefits, or in the alternative, remand for additional proceedings. 

Additional proceedings are required here. This Court makes no

findings regarding the merits of Fly’s claims. On remand, the ALJ

should consider all of the evidence in the record and, if necessary,

give the parties the opportunity to expand the record so that the ALJ

may build a logical bridge between the evidence and his conclusions. 

-14-
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. section 405(g). 

DATED: August 31, 2015 /s/RUDY LOZANO, Judge

United States District Court

-15-