UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

JOHN NAGEL, )

Plaintiff, )

)

v. ) CAUSE NO.: 2:15-CV-36-PRC

)

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 John Nagel on

January 28, 2015, and a Plaintiff’s Brief in Support of His Motion to Reverse the Decision of the

Commissioner of Social Security [DE 14], filed on June 1, 2015. Plaintiff requests that the

September 25, 2013 decision of the Administrative Law Judge denying his claim for supplemental

security income be reversed and remanded for further proceedings. On September 10, 2015, the

Commissioner filed a response, and Plaintiff filed a reply on September 23, 2015. For the following

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

PROCEDURAL BACKGROUND

Plaintiff filed an application for supplemental security income on October 3, 2011, which

is his alleged onset date. His claim was denied initially and upon reconsideration. Plaintiff timely

requested a hearing, which was held on July 12, 2013. The hearing was conducted by video with

Plaintiff sitting in Valparaiso, Indiana, and Administrative Law Judge (ALJ) Yvette N. Diamond

sitting in Baltimore, Maryland. Also in attendance were Plaintiff’s attorney and an impartial

vocational expert. On September 25, 2013, the ALJ issued a written decision denying benefits,

making the following findings:
1. The claimant has not engaged in substantial gainful activity since October 3,

2011, the application date.

2. The claimant has the following severe impairments: spinal stenosis, status

post cervical fusion, left upper extremity weakness, headaches, and anxiety

disorder.

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

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

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

4. After careful consideration of the entire record, I find that the claimant has

the residual functional capacity to perform light work as defined in 20 CFR

416.967(b) except he can lift and carry twenty pounds occasionally and ten

pounds frequently; stand or walk for six out of eight hours; and sit for six out

of eight hours. The claimant can occasionally push and pull. He can

occasionally climb stairs, balance, stoop, kneel, crouch, and crawl, but cannot

climb ladders. The claimant requires the option to sit or stand at will without

leaving the workstation. He can frequently reach and handle bilaterally, and

can occasionally finger with the left upper extremity. The claimant can have

no concentrated exposure to hazards and temperature extremes. Finally, he

is limited to low stress work defined as occasional decisionmaking and

occasional changes in work setting.

5. The claimant has no past relevant work.

6. The claimant was born [in 1963] and was 48 years old, which is defined as

a younger individual age 18-49, on the date the application was filed. The

claimant subsequently changed age category to closely approaching

advanced age.

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

8. Transferability of job skills is not an issue because the claimant does not

have past relevant work.

9. 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.

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

Act, since October 3, 2011, the date the application was filed.

(AR 69-76).

The Appeals Council denied Plaintiff’s request for review, leaving the ALJ’s decision the

final decision of the Commissioner. See 20 C.F.R. § 416.1481. Plaintiff filed this civil action

pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the Agency’s decision.

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

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

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

U.S.C. § 405(g).

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

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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

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

court] 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 [her] 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.”).

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DISABILITY STANDARD

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

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

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

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

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

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

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

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

numbers in the economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. § 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. § 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 no, 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 no, 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

functional 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. § 416.920(a)(4)(i)-(v); see also

Scheck v. Barnhart, 357 F.3d 697, 699-700 (7th Cir. 2004).

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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). 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

Plaintiff seeks reversal and remand for further proceedings, or alternatively an award of

benefits, arguing that the ALJ made errors in assessing Plaintiff’s credibility, weighing medical

opinion evidence, and determining Plaintiff’s RFC.

A. Credibility

In making a disability determination, the ALJ must consider a claimant’s statements about

his symptoms, such as pain, and how the symptoms affect his daily life and ability to work. See 20

C.F.R. § 416.929(a). Subjective allegations of disabling symptoms alone cannot support a finding

of disability. Id. The ALJ must weigh the claimant’s subjective complaints, the relevant objective

medical evidence, and any other evidence of the following factors:

(1) The individual’s daily activities;

(2) Location, duration, frequency, and intensity of pain or other symptoms;

(3) Precipitating and aggravating factors;

(4) Type, dosage, effectiveness, and side effects of any medication;

(5) Treatment, other than medication, for relief of pain or other symptoms;

(6) Other measures taken to relieve pain or other symptoms;

(7) Other factors concerning functional limitations due to pain or other

symptoms.

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See 20 C.F.R. § 416.929(c)(3). “Because the ALJ is ‘in the best position to determine a witness’s

truthfulness and forthrightness . . . this court will not overturn an ALJ’s credibility determination

unless it is ‘patently wrong.’” Shideler v. Astrue, 688 F.3d 306, 310-11 (7th Cir. 2012) (quoting

Skarbek v. Barnhart, 390 F.3d 500, 504-05 (7th Cir. 2004)); see also Prochaska, 454 F.3d at 738.

Nevertheless, “an ALJ must adequately explain his credibility finding by discussing specific reasons

supported by the record.” Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013) (citing Terry v.

Astrue, 580 F.3d 471, 477 (7th Cir. 2009)); SSR 96-7p, 1996 WL 374186, at *2 (Jul. 2, 1996) (“The

determination or decision must contain specific reasons for the finding on credibility, supported by

the evidence in the case record, and must be sufficiently specific to make clear to the individual and

to any subsequent reviewers the weight the adjudicator gave to the individual’s statements and the

reasons for that weight.”).

As an initial matter, Plaintiff attacks the ALJ’s use of boilerplate language in the credibility

determination. The Seventh Circuit Court of Appeals has often criticized this language. See, e.g.,

Minnick v. Colvin, 775 F.3d 929, 936 (7th Cir. 2015). But an ALJ’s use of the boilerplate language

does not amount to reversible error if she “otherwise points to information that justifies [her]

credibility determination.” Pepper, 712 F.3d at 367-68. Accordingly, the Court proceeds to

consideration of the substance of the ALJ’s analysis.

Plaintiff presents three arguments for finding the substance of the ALJ’s credibility

determination in error: (1) the ALJ made an improper negative inference regarding treatment not

sought by Plaintiff, (2) the ALJ did not properly explain her view of the medications prescribed to

Plaintiff, and (3) the ALJ drew improper conclusions from Plaintiff’s daily activities. The Court will

address each in turn.

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1. Failure to Seek Treatment

The ALJ discredited the severity of Plaintiff’s anxiety because his record shows no therapy

or counseling sessions. An ALJ is not permitted to make negative inferences regarding a plaintiff’s

credibility based on the Plaintiff’s failure to seek treatment without first giving the plaintiff an

opportunity to explain why the treatment at issue was not sought. Roddy, 705 F.3d at 638; SSR 96-

7p. The strength of Plaintiff’s argument is bolstered by the Commissioner’s failure to respond to this

argument. The ALJ’s negative inference is in direct conflict with precedential case law. Remand is

required.

2. Medication and Side Effects

Though the ALJ did not explain how she viewed Plaintiff’s prescription medications in

making her credibility analysis, Plaintiff argues that his history of receiving prescriptions for strong

medication—including Vicodin, OxyContin, Methadone, Noramprim, and Neurontin—should be

a reason to find his complaints of pain credible. Plaintiff’s argument is well taken. When evaluating

the credibility of a claimant’s statements, an ALJ must consider medications taken for pain. 20

C.F.R. § 416.929(c). Further, it is improbable that Plaintiff would be able to fake pain so severe to

warrant prescription of strong medication or that his doctor would prescribe these medications if he

believed Plaintiff was faking his symptoms. See Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir.

2004). In assessing Plaintiff’s credibility on remand, the ALJ should consider the strong pain

medications prescribed to Plaintiff.

Relatedly, Plaintiff argues that the ALJ improperly failed to consider how the potential side

effects of his medications could affect his ability to work. Plaintiff is correct that SSR 96-7p requires

an ALJ to consider side effects of medication taken in making a credibility determination. In this

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context, however, the ALJ must consider side effects “not for their effects on a claimant’s ability

to work, but for the support they lend an individual’s allegation of intense symptoms.” Brooks v.

Colvin, No. 2:12-cv-206, 2014 WL 1319442, at *10 (N.D. Ind. Mar. 27, 2014). Plaintiff has not

shown any connection between the potential side effects of his medications and his credibility.

Plaintiff’s argument that the potential side effects implicate his ability to sustain employment

attempts to stretch the requirement to consider side effects beyond its scope, and the argument fails.

3. Activities of Daily Living

Plaintiff argues the ALJ erred by relying on Plaintiff’s following activities in finding Plaintiff

not fully credible: mowing the lawn, preparing light meals, watching television, attending parentteacher conferences, attending dances with his daughters, playing with his granddaughter, caring for

a pet, and interacting with friends and family members.

The Seventh Circuit Court of Appeals has repeatedly cautioned ALJs against relying on daily

activities as proof that a claimant can work full-time, eight hours a day, forty hours a week. See

Engstrand v. Colvin, 788 F.3d 655, 661-62 (7th Cir. 2015); Scrogham v. Colvin, 765 F.3d 685, 700

(7th Cir. 2014); Beardsley v. Colvin, 758 F.3d 834, 838 (7th Cir. 2014); Roddy, 705 F.3d at 639;

Spiva v. Astrue, 628 F.3d 346, 352 (7th Cir. 2010). “The pressures, the nature of the work, flexibility

in the use of time, and other aspects of the working environment as well, often differ dramatically

between home and office.” Mendez v. Barnhart, 439 F.3d 360, 362 (7th Cir. 2006).

The proper way to use activities of daily living in making a credibility determination is to

contradict descriptions of pain or symptoms, not to conclude that a plaintiff can engage in sustained

work activity. See Zurawski, 245 F.3d at 887. The ALJ did not make proper use of the evidence of

daily activities, as shown by her explanation that “[s]ome of the physical and mental abilities and

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social interactions required in order to perform [the Plaintiff’s daily] activities are the same as those

necessary for obtaining and maintaining employment.” (AR 72).

Additionally, there are problems with the ALJ’s characterization of Plaintiff’s activities. The

ALJ ignored Plaintiff’s testimony that he no longer took care of the family dog, mowed the lawn,

or did laundry. The ALJ overstated other activities performed by Plaintiff: he attended one fatherdaughter dance but sat on the sidelines, and he went to one parent-teacher conference. The ALJ

implied that these were regular, or at least repeated, activities. The ALJ has improperly extrapolated

an ability to perform work in a competitive environment from Plaintiff’s activities of daily living

and has mischaracterized the level and currentness of these activities. These defects are another

ground upon which to remand this matter.

B. Weight to Medical Opinions

An ALJ is required to evaluate every medical opinion received, regardless of its source. See

20 C.F.R. § 416.927(c). Factors the ALJ considers in weighing medical opinion evidence include

the examining relationship, the treatment relationship, the length of the treatment relationship and

the frequency of examination, the nature and extent of the treatment relationship, supportability,

consistency, specialization, and other factors brought to the ALJ’s attention. Id. § 416.927(c)(1)-(6).

Under what is known as the “treating physician rule,” the opinion of a treating physician on the

nature and severity of an impairment is given controlling weight if it “is well-supported by medically

acceptable clinical and laboratory techniques and is not inconsistent with the other substantial

evidence in [the] case record.” Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011); 20 C.F.R. §

416.927(c)(2).

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Plaintiff contends that the ALJ erred in assigning little weight to the medical opinions of Dr.

John Heyer and in assigning some weight to the medical opinion of Dr. J. Sands. The Court will

address the opinions in turn.

1. Dr. Heyer

Plaintiff asserts that the ALJ did not engage in the proper analysis in assigning weight to Dr.

Heyer’s medical opinions and that the ALJ has failed to provide a sound explanation for giving the

weight assigned. Though Dr. Heyer—Plaintiff’s treating physician—gave two medical opinions, the

ALJ did not explain why she did not assign controlling weight to the opinions. The ALJ assigned

“little weight” to the opinions and gave the following reasons in support: (1) “whether the claimant

is ‘disabled’ is a determination reserved to the Commissioner,” (2) “Dr. Heyer’s opinion is not

supported by the treatment notes,” and (3) the opinions are not supported by “the claimant’s

testimony regarding his activities of daily living.” (AR 75). The Court agrees with Plaintiff

regarding the ALJ’s assignment of weight to Dr. Heyer’s opinions. The ALJ has not provided a

sound explanation for giving them only “little weight.”

While qualification for supplemental security income is a question of law for the ALJ to

determine, qualification “depends on the applicant’s physical and mental ability to work full time,

and that is something to which medical testimony is relevant and if presented can’t be ignored.”

Garcia v. Colvin, 741 F.3d 758, 760 (7th Cir. 2013) (finding error in an ALJ’s assignment of no

weight to a treating physician’s opinion that a plaintiff was “disabled and unable to perform any

functions”). The fact that the opinion goes to the ultimate issue of disability is not an acceptable

reason to reject an opinion.

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Though the ALJ wrote that the treatment notes do not support Dr. Heyer’s opinions, the ALJ

does not identify, in this portion of the decision, which treatment notes do not support which

portions of Dr. Heyer’s opinions. The ALJ has not sufficiently articulated her analysis in this regard

for the Court to be able to trace her reasoning. See Scott, 297 F.3d at 595; Diaz, 55 F.3d at 307;

Green, 51 F.3d at 101. The weight given to Dr. Heyer’s opinions cannot be affirmed on this basis.

Next, as addressed above in the analysis of the ALJ’s credibility determination, the ALJ’s

use of Plaintiff’s activities of daily living involves mischaracterization of the evidence of record and

is counter to legal precedent of the Seventh Circuit Court of Appeals. This reason is also insufficient

ground to give Dr. Heyer’s opinions little weight.

Finally, Plaintiff contends that the ALJ did not weigh this opinion pursuant to the factors in

20 C.F.R. § 416.927(c). The ALJ did address the supportability of the opinions, though the Court

has addressed errors in the ALJ’s supportability analysis above. However, the Plaintiff is correct that

the ALJ did not address the nature, length, or frequency of Dr. Heyer’s treating relationship with

Plaintiff. On remand, should the ALJ not assign controlling weight to Dr. Heyer’s medical opinions,

the ALJ should address all of the checklist factors in assigning weight to the opinions. See Campbell

v. Astrue, 627 F.3d 299, 308 (7th Cir. 2010) (finding error where the ALJ failed to explicitly address

the checklist of factors).

2. Dr. Sands

Plaintiff argues that it was error for the ALJ to give “some weight” to Dr. Sands’s opinion

because Dr. Sands did not have all relevant evidence available to him. Though the ALJ said she was

only giving some weight to the opinion, the ALJ adopted the RFC opined by Dr. Sands except for

his finding regarding Plaintiff’s ability to lift and carry.

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An ALJ cannot rely on outdated assessments and ignore new and potentially decisive

medical evidence. Stage v. Colvin, No. 15-1837, 2016 WL 492333, at *3, — F.3d — (7th Cir. Feb.

9, 2016) (citing Goins v. Colvin, 764 F.3d 677, 680 (7th Cir. 2014)). Dr. Sands’s opinion is dated

November 29, 2011. On April 23, 2013, before the ALJ issued her opinion, Dr. Heyer advised

Plaintiff that he believed that Plaintiff has a myofascial pain syndrome such as fibromyalgia. As a

result of this belief, Dr. Heyer prescribed Lyrica to Plaintiff. This information was not a part of the

record at the time Dr. Sands reviewed it. 

The Commissioner argues that the reference to a myofascial pain syndrome is merely Dr.

Heyer’s speculation and cannot be used to undermine the ALJ’s decision. While the Commissioner

is correct that Plaintiff has not identified a formal diagnosis of fibromyalgia in the record, it is unfair

to classify the treatment note as mere speculation. Dr. Heyer prescribed medication for the condition,

which indicates Dr. Heyer was taking his belief that Plaintiff had the condition seriously.

The ALJ makes no mention of either fibromyalgia or a myofascial pain syndrome in her

decision, and no medical opinion was given after Dr. Heyer noted his belief that Plaintiff has a

myofascial pain syndrome. The ALJ is not a medical professional and should not have taken it upon

herself to decide the information regarding Plaintiff’s possible myofascial pain syndrome could be

ignored. It was error for the ALJ to give such great weight to an opinion that did not have access to

the potentially decisive medical evidence. Remand is required on this basis.

Plaintiff also argues that there was new and potentially decisive medical evidence of

deterioration of Plaintiff’s left hand, including notes from a July 2012 examination indicating that

Plaintiff experienced increased difficulty in grasping and the hand became numb more quickly. (AR

413). Dr. Sands’s opinion was issued before this examination date. On remand, if the opinion of a

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state agency medical consultant is sought, a new opinion by a medical consultant with access to the

entire record is necessary.

C. RFC Determination

The RFC is a measure of what an individual can do despite the limitations imposed by his

impairments. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); 20 C.F.R. § 416.945(a). The

determination of a claimant’s RFC is a legal decision rather than a medical one. 20 C.F.R. §

416.927(e)(1); Diaz, 55 F.3d at 306 n.2. The RFC is an issue at steps four and five of the sequential

evaluation process and must be supported by substantial evidence. SSR 96-8p, 1996 WL 374184,

*3 (July 2, 1996); Clifford, 227 F.3d at 870.

“RFC is an assessment of an individual’s ability to do sustained work-related physical and

mental activities in a work setting on a regular and continuing basis. A ‘regular and continuing’

basis means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96-8p at *1.

“The RFC assessment is a function-by-function assessment based upon all of the relevant evidence

of an individual’s ability to do work-related activities.” SSR 96-8p, at *3. The relevant evidence

includes medical history; medical signs and laboratory findings; the effects of symptoms, including

pain, that are reasonably attributed to a medically determinable impairment; evidence from attempts

to work; need for a structured living environment; and work evaluations, if available. Id. at *5. In

arriving at an RFC, the ALJ “must consider all allegations of physical and mental limitations or

restrictions and make every reasonable effort to ensure that the file contains sufficient evidence to

assess RFC.” Id.

Plaintiff alleges errors in the ALJ’s determination of Plaintiff’s RFC. Because this case is

being remanded for new assessments of the medical opinions and of Plaintiff’s credibility, the ALJ’s

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RFC finding may change significantly when revisited. Accordingly, an in-depth analysis of the

arguments Plaintiff makes for remand based on the RFC finding is not necessary.

Even so, the Court will provide additional guidance on a couple of matters. First Plaintiff

argues there is an evidentiary deficit regarding his ability to lift and carry because no medical

opinion matches the limitation identified by the ALJ and the ALJ found Plaintiff not fully credible.

However, the RFC determination is reserved to the ALJ as fact-finder for the Commissioner and

need not be based on a specific medical opinion, though the ALJ must specify evidence of record

that supports the RFC. See Schmidt v. Astrue, 496 F.3d 833, 845 (7th Cir. 2007) (recognizing that

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 (citing Diaz, 55 F.3d at 306, n.2)); 20 C.F.R. §

416.927(e)(2).

Second, Plaintiff argues that the ALJ determined Plaintiff’s mental RFC without obtaining

a mental health professional’s assessment of Plaintiff’s mental RFC. However, Plaintiff is incorrect.

Exhibit 4F of the Administrative Record is a Psychiatric Review Technique Form completed by

psychologist Joelle J. Larsen, Ph.D. Plaintiff’s error is understandable, however, in light of the fact

that the ALJ did not assign weight to or in any way refer to this medical opinion. Federal regulation

requires the ALJ to evaluate and assign weight to all medical opinions. 20 C.F.R. § 416.927(c)

(“Regardless of its source, we will evaluate every medical opinion we receive.”).

D. The Chenery Doctrine

Under the Chenery doctrine, an agency’s lawyers may not defend an agency’s decision on

grounds that the ALJ did not cite. SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943); see also Parker

v. Astrue, 597 F.3d 920, 923 (7th Cir. 2010) (applying the Chenery doctrine in the social security

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context). The Commissioner argues (1) it was proper for the ALJ to not consider the side effects of

any medications Plaintiff was on because Plaintiff gave conflicting testimony regarding side effects;

(2) the fact that Plaintiff never worked diminishes his credibility; (3) Dr. Heyer’s first opinion was

properly rejected because of the opinion’s age, the fact that Dr. Heyer has not been shown to have

vocational knowledge, and the opinion’s failure to address any functional limitations; and (4) Dr.

Heyer’s opinion is extreme and unexplained and can therefore be rejected because Dr. Heyer was

trying to aid Plaintiff’s case for benefits. None of these matters were raised by the ALJ.

Consequently, these arguments violate the Chenery doctrine and cannot be used to uphold the ALJ’s

decision.

E. Request for an Award of Benefits

An award of benefits is appropriate “only if all factual issues involved in the entitlement

determination have been resolved and the resulting record supports only one conclusion—that the

applicant qualifies for disability benefits.” Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011). Based

on the discussion above, remand, not an immediate award of benefits, is appropriate.

CONCLUSION

Based on the foregoing, the Court hereby GRANTS the Plaintiff’s Brief in Support of His

Motion to Reverse the Decision of the Commissioner of Social Security [DE 14], REVERSES the

final decision of the Commissioner of Social Security, and REMANDS this matter for further

proceedings consistent with this Opinion and Order. The Court DENIES Plaintiff’s request to award

benefits.

So ORDERED this 22nd day of March, 2016.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

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UNITED STATES DISTRICT COURT

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