UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

BRUNETTA S. ALI, )

Plaintiff, )

)

v. ) CAUSE NO.: 2:14-CV-305-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 Brunetta S. Ali on

August 29, 2014, and an Opening Brief [DE 17], filed on December 17, 2014. Plaintiff requests that

the August 29, 2012 decision of the Administrative Law Judge denying her claim for disability

insurance benefits and supplemental security income be reversed and remanded for further

proceedings. On March 12, 2015, the Commissioner filed a response, and Plaintiff filed a reply on

April 13, 2015. For the following reasons, the Court grants Plaintiff’s request for remand.

PROCEDURAL BACKGROUND

Plaintiff filed applications for disability insurance benefits and supplemental security income

on February 23, 2011, alleging an onset date of February 19, 2011. Her claim was denied initially

and upon reconsideration. Plaintiff timely requested a hearing, which was held on August 16, 2012.

In attendance were Plaintiff, her attorney, and an impartial vocational expert. On August 29, 2012,

Administrative Law Judge (“ALJ”) David R. Bruce issued a written decision denying benefits,

making the following findings:

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

through December 31, 2015.
2. The claimant has not engaged in substantial gainful activity since February

19, 2011, the amended alleged onset date. 

3. The claimant has the following severe impairments: obesity, sleep apnea,

fibromyalgia, asthma, degenerative joint disease of the bilateral knees.

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

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

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

the residual functional capacity to perform sedentary work as defined in 20

CFR 404.1567(a) and 416.967(a) except with the requirement of a sit/stand

option where the claimant must alternate 45 minutes of sitting with 25

minutes of standing throughout the day.

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

7. The claimant was born [in 1970] and was 40 years old, which is defined as

a younger individual, age 18-44, on the alleged disability onset date.

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

in English.

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 the claimant has

transferable job skills.

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 February 19, 2011, through the date of this decision.

(AR 34-42).

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. §§ 404.981, 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.

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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

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

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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 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 [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 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

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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

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. §§ 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

[her] 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

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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

In this appeal, Plaintiff argues that (1) the ALJ’s credibility assessment is not supported by

substantial evidence, (2) the ALJ failed to give proper weight to the consultative examiner’s opinion,

and (3) the ALJ erred in his RFC assessment when he failed to account for the effects of Plaintiff’s

obesity, sleep apnea, and depression. Remand is required because the ALJ made factual errors in

relation to Plaintiff’s diagnosis of fibromyalgia and to her use of a CPAP machine for sleep apnea,

the effects of which permeate the ALJ’s decision.

A. Fibromyalgia Diagnosis

The ALJ erred when he discounted Plaintiff’s fibromyalgia diagnosis on the basis that the

diagnosis did not include the identification of any tender points when, in fact, Plaintiff’s treating

physician twice identified more than the minimum of 11 tender points for a diagnosis of

fibromyalgia. See Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996) (“The principal symptoms are

‘pain all over,’ fatigue, disturbed sleep, stiffness, and—the only symptom that discriminates between

[fibromyalgia] and other diseases of a rheumatic character—multiple tender spots, more precisely

18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them

to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.”). 

Plaintiff first received a differential diagnosis of fibromyalgia on July 16, 2010, when she

presented to the emergency room with “whole body burning pain for 1 week.” (AR 280). Plaintiff

reported the pain as “severe” with no exacerbating factors. Id. The emergency room report does not

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include a record of whether any tender points were identified. The ALJ did not acknowledge this

diagnosis of fibromyalgia at the emergency room. (AR 38). 

Approximately one month later, on August 10, 2010, Plaintiff was diagnosed with

fibromyalgia by her treating physician, Dr. French. The ALJ discussed this diagnosis, recognizing

that Plaintiff was diagnosed with “fibromyalgia with diffuse tender trigger points at the back, neck,

thighs, legs.” (AR 38, 311, 439). However, the ALJ noted that the diagnosis does “not include a

specific identification of at least 11 positive tender points of the 18 possible tender points.” (AR 38,

311, 439). As a result, the ALJ gave Plaintiff the “benefit of the doubt” by finding her fibromyalgia

to be severe despite the failure of the doctor to identify at least 11 positive tender points at that visit.

(AR 38).

Missing from the ALJ’s analysis is Dr. French’s subsequent identification on two separate

occasions of more than 11 tender points. On July 6, 2011, Plaintiff presented to Dr. French with

diffuse body pain. (AR 433). On physical examination, under the heading “musculoskeletal,” Dr.

French found 16 fibromyalgia tender points. (AR 435, 454). And, on October 5, 2011, Dr. French

found 12 tender points. (AR 432). The ALJ did not discuss these findings by Plaintiff’s treating

physician, much less acknowledge the findings. Nor did the ALJ recognize the original August 10,

2010 diagnosis as having been made by Plaintiff’s treating physician, as he noted only that the

diagnosis was made at “Riggs Community Health Clinic.” (AR 38). The ALJ’s omission of the July

6, 2011 and October 5, 2011 findings led him to believe that the minimum number of tender points

had not been identified, which led him to discount the diagnosis of fibromyalgia and in turn affected

the credibility determination, the weight given to the consultative examiner, and the finding at step

five that Plaintiff could do jobs in the economy.

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First, in making a disability determination, the ALJ must consider a claimant’s statements

about her symptoms, such as pain, and how the symptoms affect her daily life and ability to work.

See 20 C.F.R. §§ 404.1529(a), 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.

See 20 C.F.R. §§ 404.1529(c)(3), 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) (internal quotation marks omitted) (quoting Skarbek, 390 F.3d at 504-05); 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.”).

In weighing Plaintiff’s credibility in this case, the ALJ questioned “whether [Plaintiff] carries

a definitive diagnosis of fibromyalgia” in the absence of any tender points being identified at the

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August 10, 2010 visit. (AR 40). This caused the ALJ to find that Plaintiff’s limitations due to her

pain are excessive in relation to the medical evidence in the record. Id. Yet, Plaintiff’s primary

physical complaint is her constant and whole-body pain, complaints that are consistent with a

diagnosis of fibromyalgia.

 Plaintiff testified that she stopped working in February 2011 because of pain. She said her

pain was mostly in her knee and legs, but sometimes was throughout her whole body. She described

the pain as being “like someone had beaten [her] with a bat.” (AR 71). Plaintiff testified that, while

her pain does get better or worse, it is always present. Some days, she is confined to her bed as a

result of the pain. She described difficulty standing and sitting. She testified in detail about her

inability to wash dishes because she cannot stand long enough to complete the task. On her way to

the hearing, Plaintiff asked her son (who drove her to the hearing because she cannot drive due to

her pain) to pull the car over less than an hour into the ride so that she could get out and stretch. 

Plaintiff testified that she can sit for thirty to forty-five minutes before she has to stand up and move.

If she sits longer, she requires assistance to get up. She no longer goes to church because of pain and

because she cannot do the sitting and standing required during a sixty to ninety minute service. After

sitting for a period of time, she has to reposition herself, lie down, or go to sleep. She testified that

she spends the majority of the day lying down in bed. She testified that she would only be able to

sit up or stand for two hours. Dr. French’s identification of the tender points strengthens the

diagnosis of fibromyalgia, which supports Plaintiff’s allegations of pain. 

In addition, Plaintiff consistently reported pain or tenderness in her back or knees in

treatment records in August 2010, September 2010, May 2011, July 2011, October 2011, December

2011, and March 2012. (AR 438, 436, 435, 432, 425, 422). In December 2010, Plaintiff visited the

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emergency room and reported bilateral foot pain for the previous several weeks, on which the doctor

opined that her pain was due to arthritis, possibly complicated or increased by a fibromyalgia

component. (AR 275-76). In January 2011, Plaintiff was treated at the emergency room for two days

of headache and body ache. (AR 346). In May 2011, Plaintiff reported that her back and leg pain

was “constant.” (AR 398). There is no indication in her treatment records that Plaintiff’s complaints

of pain are exaggerated. The Court finds that, as a result of the minimal consideration given to the

diagnosis of fibromyalgia based on the misstatement of the medical record, the credibility

determination is not supported by substantial evidence.

Next, because the ALJ found Plaintiff not fully credible as a result of his misstatement of the

fibromyalgia diagnosis, the ALJ erred in weighing the consultative examiner’s opinion. (AR 40).

An ALJ is required to evaluate every medical opinion received, regardless of its source. See 20

C.F.R. §§ 404.1527(c), 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. §§

404.1527(c)(1)-(6), 416.927(c)(1)-(6). “As a general rule, an ALJ is not required to credit the

agency’s examining physician in the face of a contrary opinion from a later reviewer or other

compelling evidence.” Beardsley v. Colvin, 758 F.3d 834, 839 (7th Cir. 2014). However, “[a]n ALJ

can reject an examining physician’s opinion only for reasons supported by substantial evidence in

the record; a contradictory opinion of a non-examining physician does not, by itself, suffice.”

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

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In this instance, the ALJ gave “some weight” to the consultative examiner’s opinion,

recognizing that the consultative examiner found that Plaintiff was extremely limited in everything

she does physically due to diffuse pain and tenderness and that Plaintiff had a lot of fatigue that

made it hard for her to stay awake and function. (AR 40). The only basis given for giving the

opinion “some weight” is that the opinion was based upon a “one-time visit” and lacked “the

perspective of a medical provider with a longitudinal treatment history.” Id. This reasoning, alone,

is nonsensical—no consultative examiner ever has more than a “one-time visit” experience with a

claimant. Nor does the ALJ identify any contrary medical evidence to discredit the consultative

examiner’s opinion, including any contrary opinion from a treating provider. Rather, the consultative

examiner’s opinion is consistent with the diagnosis of fibromyalgia as well as Plaintiff’s testimony

and her consistent complaints of pain to her treating physician. The Court finds that the ALJ erred

in weighing the opinion of the consultative examiner and that the reasoning is not supported by

substantial evidence.

Finally, the vocational expert testified that an individual with Plaintiff’s RFC who is off task

for fifteen minutes per hour due to pain would be precluded from competitive work. The vocational

expert also testified that, if an individual were to miss two or more days per month, competitive

work would be precluded. Given Plaintiff’s testimony and the diagnosis of fibromyalgia, the ALJ

has not sufficiently explained how Plaintiff would not be precluded from competitive work based

on the vocational expert’s testimony.

The ALJ’s factual error related to Plaintiff’s fibromyalgia diagnosis requires reversal and

remand because substantial evidence does not support the ALJ’s decision.

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B. Sleep Apnea

Second, the ALJ erred in his factual assessment of Plaintiff’s sleep apnea. Plaintiff was

diagnosed with severe obstructive sleep apnea in September 2009 after a sleep study. (AR 263).

Plaintiff’s “Epworth Sleepiness Scale score of 18” was consistent with severe daytime sleepiness.

Id. At the sleep study, Plaintiff responded positively to the use of a CPAP machine. Id. Citing this

study, the ALJ found sleep apnea to be a severe impairment. 

However, the ALJ incorrectly found that Plaintiff was prescribed a CPAP machine for her

sleep apnea but that she could not afford one and, therefore, was not using one. (AR 39-40).

Contrary to the ALJ’s finding, Plaintiff testified at the hearing that she had a CPAP machine. (AR

67). Nevertheless, she testified that she has problems sleeping and dozes off frequently, even when

sitting up or talking with someone. (AR 78, 83, 85). Because the ALJ found that Plaintiff did not

have a CPAP machine due to cost, the ALJ did not address whether the CPAP machine has been

effective in addressing Plaintiff’s ability to function in light of her testimony of daytime sleepiness.

The Court recognizes that, at the time of the consultative examination in February 2011, Plaintiff

reported “dozing off a lot” and that she was not using a CPAP machine. But she testified at the

hearing in August 2012 that she had a CPAP machine, and she also testified to daytime somnolence

issues. This factual error affected the ALJ’s credibility determination because it appears that he

found her less than fully credible on the basis that she was not using a CPAP machine. (AR 39-40).

Moreover, even if she was not using a CPAP machine because she was unable to afford it,

her failure to use the machine due to cost would be a “good reason” for failing to pursue treatment

but not a reason to discredit her. SSR 96-7p, at *7-8 (“[T]he adjudicator must not draw any

inferences about an individual’s symptoms and their functional effects from a failure to seek or

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pursue regular medical treatment without first considering any explanations that the individual may

provide . . . . For example: . . . The individual may be unable to afford treatment . . . .”).

The error also affected the RFC determination. The RFC is a measure of what an individual

can do despite the limitations imposed by her impairments. Young v. Barnhart, 362 F.3d 995, 1000

(7th Cir. 2004); 20 C.F.R. §§ 404.1545(a), 416.945(a). The determination of a claimant’s RFC is a

legal decision rather than a medical one. 20 C.F.R. §§ 404.1545(e)(2), 416.945(e)(2); Diaz, 55 F.3d

at 306 n.2. The RFC is an issue at steps four and five of the sequential evaluation process. SSR 96-

8p, 1996 WL 374184, *3 (July 2, 1996). The ALJ’s RFC finding must be supported by substantial

evidence. Clifford, 227 F.3d at 870. “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. 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. In formulating Plaintiff’s RFC, the ALJ did not account for Plaintiff’s

difficulties staying awake during the day despite her use of a CPAP machine.

 Remand is required for proper consideration of the evidence regarding Plaintiff’s sleep apnea

and her use of a CPAP machine.

C. Other Issues on Remand

On remand, the ALJ is directed to address several other areas of concern in the decision.

1. Credibility Determination

The credibility determination contains errors in addition to the misstatement of the

fibromyalgia diagnosis. First, the ALJ discredited Plaintiff on the basis that she “has benefit from

her medications.” (AR 39). Yet, despite some relief from the medications, Plaintiff continued to

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report pain to her doctors. (AR 438, 436, 435, 432, 425,422). At the hearing, she testified, “I’m

starting to feel the same [on] my medication. It only takes a little edge off. At first it was working

a little but, but now it just . . . it really doesn’t knock too much pain off anymore.” (AR 65).

Therefore, the ALJ’s suggestion that her pain was resolved by medication is incorrect. And, it is not

clear how Plaintiff’s temporary relief from pain with medications makes her less than fully credible. 

Second, the ALJ wrote, “The claimant appeared at the hearing with crutches due to her ASO

brace, but reported that she could use a cane to assist with her left knee.” (AR 39). In July 2011,

Plaintiff’s doctor at Lafayette Orthopaedic Clinic suggested that Plaintiff use a cane to take weight

off her leg in the hope that it would decrease her pain. (AR 446). It is unclear how Plaintiff’s

adherence to the prescribed treatment of using a cane for knee pain makes her less than credible. 

Third, the ALJ noted that Plaintiff “exhibited pain behavior at the hearing but recent medical

appointments did not describe that pain behavior.” (AR 39). The ALJ does not describe what “pain

behavior” he was discrediting. Nor does he explain how that behavior was unsupported by the

medical evidence much less cite any medical records that he considered when making this

comparison. Early in the hearing, prompted by the ALJ’s comment that she could stand if needed,

Plaintiff repositioned herself, stating, “[M]y legs are bothering me real bad and my back.” (AR 53).

A little while later, her attorney asked her, “Do you need to get up?” to which she responded, “Yes,”

and then stood up. (AR 57). When asked whether the day of the hearing was a “bad day,” Plaintiff

responded, “Today is not all the way bad because I wouldn’t be able to talk to you right now. I’m

getting there though. I’m getting there. And I don’t know if it’s because of the long drive here, but

I just got–when I was on my way I started–the pain started getting worse and when I got here it just

started to even get worse.” (AR 73). On a scale of one to ten, with ten being the worst pain, Plaintiff

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rated her pain at a 10 while at the hearing, but she also stated that it could get worse. (AR 74). On

remand, if the ALJ finds Plaintiff less credible because of her pain behavior at the hearing, the ALJ

is directed to explain specifically how the behavior makes her less credible.

2. Obesity

The ALJ’s consideration of Plaintiff’s obesity affected both the credibility determination and

the RFC. The ALJ discredited Plaintiff in part because she had been advised to lose weight to help

with the pain in her knee and leg. First, it is not clear how a claimant’s allegations of pain would be

less credible because she was advised to lose weight to reduce her pain. Second, Plaintiff did lose

weight. At the time of the consultative examination in February 2011, Plaintiff weighed 377 pounds.

At the time of the hearing in August 2012, Plaintiff weighed 326 pounds. Because Plaintiff’s obesity

exacerbates her impairments and pain, the ALJ should have found that her obesity makes her

allegations of pain more credible. See Barrett v. Barnhart, 355 F.3d 1065, 1068 (7th Cir. 2004)

(“Even if [the claimant’s] arthritis was not particularly serious in itself, it would interact with her

obesity to make standing for two hours a time more painful than it would be for a person who was

either as obese as she or as arthritic as she but not both.”).

Similarly, the ALJ did not take Plaintiff’s obesity into account when formulating the RFC.

Plaintiff’s doctor at the Lafayette Orthopaedic Clinic opined that Plaintiff’s weight “is contributing

significantly to her problems of both patellofemoral pain and possible stress injury.” (AR 446). Even

the state agency reviewing physician noted that Plaintiff had decreased range of motion in most

joints due to “pain and size.” (AR 391). The doctor in the emergency room in January 2010 wrote

that, “the best thing [Plaintiff] could do for herself is to lose some weight.” (AR 301). 

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The ALJ generally recognized the need to consider obesity when he wrote, “I have

considered the impact of the claimant’s obese state upon his[sic] impairments in a manner consistent

with the directives set forth in SSR 02-1p on obesity.” (AR 37). But the ALJ did not do any further

analysis of the effect of Plaintiff’s obesity on the pain she experiences from her back and knee, the

pain she experiences from fibromyalgia, or the fatigue she has from sleep apnea. The ALJ did not

discuss the records cited above. The ALJ’s failure to analyze the effect of Plaintiff’s obesity on her

other impairments requires remand. See Goins v. Colvin, 764 F.3d 677, 681 (7th Cir. 2014)

(remanding, in part, because the ALJ failed to consider the claimant’s obesity in combination with

her other impairments); Browning v. Colvin, 766 F.3d 702, 706-07 (7th Cir. 2014) (faulting the ALJ

for failing to consider the effect of the claimant’s obesity in combination with the other

impairments). Notably, the consultative examiner considered Plaintiff’s obesity and found Plaintiff

unable to do any type of activity on a full-time basis. As discussed above, the ALJ erred in weighing

that opinion.

3. Depressesion

Finally, because the Court is remanding on other issues, the ALJ shall consider Plaintiff’s

depression and GAF score of 59 when formulating the RFC and shall explain whether any

limitations are required in the RFC based on depression.

D. 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 required.

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CONCLUSION

Based on the foregoing, the Court hereby GRANTS the relief sought in the Opening Brief

[DE 17], 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 15th day of September, 2015.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

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