UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

MELISSA M. PITMAN, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Case No. 1:15-cv-356 

 ) 

NANCY A. BERRYHILL, ) 

Acting Commissioner of Social Security,1

 ) 

 ) 

 Defendant. ) 

OPINION AND ORDER 

 This matter is before the court on petition for judicial review of the decision of the 

Commissioner filed by the plaintiff, Melissa M. Pitman, on November 24, 2015.2

 For the 

following reasons, the decision of the Commissioner is REMANDED.

Background

 The plaintiff, Melissa Pitman, filed an application for Disability Insurance Benefits on 

April 16, 2012, alleging a disability onset date of January 8, 2008. (Tr. 23). The Disability 

Determination Bureau denied Pitman’s application on July 12, 2012, and again upon 

reconsideration on August 23, 2012. (Tr. 23). Pitman subsequently filed a timely request for a 

hearing on September 20, 2012. (Tr. 23). A hearing was held on October 1, 2013, before 

Administrative Law Judge (ALJ) William D. Pierson, and the ALJ issued an unfavorable 

																																																								 1

 Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the 

Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. 

Colvin as the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last 

sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). 

2

 On February 8, 2016, this case was reassigned to Magistrate Judge Susan L. Collins upon the parties’ 

consent under 28 U.S.C. § 636(c), and then was reassigned to Magistrate Judge Andrew P. Rodovich. On August 5, 

2016, the court ordered the parties to file any objection to Magistrate Judge Rodovich conducting all further 

proceedings in this case. Because neither party filed an objection, this court finds that the parties voluntarily consent 

to Magistrate Judge Rodovich under 28 U.S.C. § 636(c). 
2

decision on April 22, 2014. (Tr. 23–46). Vocational expert (VE) Amy Kutschbach, Pitman, and 

Pitman’s husband testified at the hearing. (Tr. 23). The Appeals Counsel denied review, making 

the ALJ’s decision the final decision of the Commissioner. (Tr. 1–6). 

 The ALJ found that Pitman last met the insured status requirements of the Social Security 

Act on June 30, 2012. (Tr. 25). At step one of the five step sequential analysis for determining 

whether an individual is disabled, the ALJ found that Pitman had not engaged in substantial 

gainful activity from her alleged onset date of January 8, 2008 through her date last insured of 

June 30, 2012. (Tr. 26). At step two, the ALJ determined that Pitman had the following severe 

impairments: cervical and lumbar degenerative disc disease, a history of asthma and bronchitis, 

chronic obstructive pulmonary disease, a history or right (dominant) carpal tunnel release 

surgery, left carpal tunnel syndrome, left shoulder pain, fibromyalgia, insomnia, sleep apnea, 

obesity, inflammatory arthritis, major depressive disorder, and post-traumatic stress disorder. 

(Tr. 26). The ALJ found that the above impairments had more than a minimal effect on Pitman’s 

ability to work. (Tr. 26). 

 At step three, the ALJ concluded that Pitman did not have an impairment or combination 

of impairments that met or medically equaled the severity of one of the listed impairments. (Tr. 

26). The ALJ determined that there was no evidence that Pitman had an exacerbated symptom 

or any additional impairment because of her obesity and that her obesity did not meet or equal a 

listing when considered singly or in combination with her other severe impairments. (Tr. 26). 

 Specifically, the ALJ found that Pitman did not meet Listing 1.04, Disorders of the Spine, 

because there was no evidence of spinal arachnoiditis to satisfy part B or lumbar spinal stenosis 

that resulted in pseudo-claudication to satisfy part C. (Tr. 26-27). Also, the ALJ concluded that 

she failed to meet Listing 1.02, Major Dysfunction of a Joint, because there was no evidence that 
3

she could not use her upper extremities for fine and gross movements. (Tr. 27). Pitman did not 

meet Listing 3.02A, chronic pulmonary disease, because a May 2012 pulmonary function study 

yielded a post medication reading of 1.08, which exceeded the required level for Pitman’s height. 

(Tr. 27). 

 The ALJ has indicated that there was evidence that Pitman had symptoms under the 

paragraph A criteria for mental impairments, but that she did not satisfy the paragraph B criteria 

of listings 12.04 and 12.09, which required at least two of the following: 

marked restriction of activities of daily living; marked difficulties in 

maintaining social functioning; marked difficulties in maintaining 

concentration, persistence, or pace; or repeated episodes of decompensation, 

each of extended duration. 

(Tr. 27). The ALJ defined a marked limitation as more than moderate but less than extreme and 

repeated episodes of decompensation, each of extended duration, as three episodes within one 

year or once every four months with each episode lasting at least two weeks. (Tr. 27). 

 Pitman’s testimony indicated that she was limited in the above areas, however, the ALJ 

found that her allegations were not entirely credible. (Tr. 27). The ALJ found that Pitman’s 

husband’s reports were generally credible. (Tr. 27). Pitman’s husband indicated that Pitman’s 

physical conditions limited her daily activities. (Tr. 27). He reported that she played games on 

the computer until her back started to hurt and that she was unable to maintain her personal care 

due to back pain and shortness of breath. (Tr. 27). Also, he stated that she drove, shopped for 

groceries with the assistance of her daughter, and sometimes dusted and did laundry. (Tr. 27-

28). However, she took breaks when she did the chores. (Tr. 28). 

 Pitman’s husband reported that she talked on the telephone once or twice a week, went 

out to eat about once a month, and got along well with authority figures. (Tr. 28). He stated that 

she could pay attention for 30 minutes and follow written instructions but at times she needed 
4

spoken instructions repeated. (Tr. 27-28). The ALJ assigned some weight to Pitman’s 

husband’s reports. (Tr. 28). The ALJ concluded that he had a motivation in Pitman receiving 

benefits but that his reports appeared honest and were not consistent with a finding of disability. 

(Tr. 28). 

 The ALJ found that Pitman had mild restrictions in daily living activities. (Tr. 28). The 

ALJ indicated that her limitations were primarily due to her physical condition. (Tr. 28). Pitman 

testified that her children did the housework, dishes, and their own laundry. (Tr. 28). She stated 

that she cooked, but that she prepared meals that did not require her to stand for long periods of 

time. (Tr. 28). She reported that her daily activities included computer games, jigsaw puzzles, 

and watching television. (Tr. 28). 

 The ALJ found that Pitman had mild limitations in her ability to maintain social 

functioning. (Tr. 28). Pitman testified that she did not have friends, but that she had a good 

relationship with her mother and occasionally went to lunch with her sister. (Tr. 28). The ALJ 

indicated that she was reasonably conversant and easy to interview at the consultative 

psychological evaluation. (Tr. 28). Also, the ALJ reported that Pitman interacted with 

healthcare providers without difficulty. (Tr. 28). 

 The ALJ found that Pitman had moderate difficulties in concentration, persistence, or 

pace. (Tr. 28). The ALJ indicated that Pitman had numerous psychosocial stressors and ongoing 

pain, which caused distractions and created difficulties with sustained concentration and focus. 

(Tr. 28). However, Pitman drove herself to her consultative psychological evaluation, arrived on 

time, and understood most of the interview and examination questions. (Tr. 28). The examiner 

noted that Pitman’s long-term memory was intact. (Tr. 28). Also, the examiner reported that 

Pitman gave a reasonably detailed description of activities from the previous day, recalled five 
5

digits forward and four backward, her arithmetic skills were well-developed, and that she did not 

have deficits in general knowledge, common sense, or verbal abstract reasoning. (Tr. 28). The 

examiner rated Pitman’s overall level of functioning, Global Assessment of Functioning (GAF), 

at 65. (Tr. 29). The ALJ determined that Pitman’s mental impairments did not cause at least two 

marked limitations or one marked limitation and repeated episode of decompensation, each of 

extended duration to satisfy paragraph B or paragraph C. (Tr. 29). 

 The ALJ then assessed Pitman’s residual functional capacity as follows: 

through the last date insured the claimant has the residual functional 

capacity to perform a limited range of sedentary work as defined in 

20 CFR 404.1567(a): except she can sit for six hours and stand/walk 

for two hours during an eight-hour workday, frequently bend and 

stoop in addition to what was required to sit, and lift up to ten 

pounds; she cannot use her upper extremities on a constant basis, 

but can frequently reach and perform fine and gross manipulation 

tasks; and as to postural changes she can occasionally kneel, crouch, 

balance, and climb stairs and ramps, but can never climb ladders, 

ropes, or scaffolds; with respect to her work environment, she can 

tolerate less than occasional exposure to concentrated amounts of 

fumes, dust, gases, and extreme cold; she retained the mental 

residual functional capacity to perform simple routine repetitive 

tasks; she can maintain a sufficient level of concentration to perform 

simple tasks and can remember simple work-like procedures. 

(Tr. 29-30). The ALJ read and considered all the evidence of record and determined the RFC 

was more consistent with the medical findings, treatment records, and overall evidence in the 

record than the allegations made by Pitman. (Tr. 30). The ALJ also considered attorney Shull’s 

argument that there was good cause to reopen the unfavorable decision issued by the prior ALJ 

on December 13, 2010. (Tr. 30). To support his argument, attorney Shull referenced Pitman’s 

worsening depression and her new diagnoses of fibromyalgia, chronic obstructive pulmonary, 

sleep apnea, insomnia, vitamin D deficiency, and borderline diabetes. (Tr. 30). The ALJ 

concluded that new evidence existed, however, a detailed analysis showed that it was not 
6

material evidence. (Tr. 30). The ALJ determined that the new evidence was irrelevant and that 

it did not show that the prior decision was contrary to the weight of the evidence. (Tr. 30). 

 The ALJ noted that the prior ALJ did not consider Pitman’s diagnosis of fibromyalgia but 

that she did consider Pitman’s subjective complaints. (Tr. 31). The ALJ found that Pitman’s 

subjective complaints of pain in multiple areas and other symptoms were not different in nature 

and/or severity than the prior decision. (Tr. 31). After the December 23, 2010 decision, Dr. 

Rudy Kachmann reported that while an MRI study of the cervical and lumbar areas showed a 

lumbar degenerative disc disease it was nothing unusual. (Tr. 31-32). The ALJ noted that 

MRI’s in August and November of 2012 revealed relatively unchanged findings. (Tr. 32). 

 Pitman’s diagnostic test results with respect to her left thumb, hands, wrists, left shoulder, 

and feet failed to show any additional significant findings that required greater functional 

limitations than those found in the prior decision. (Tr. 32). The prior ALJ considered Pitman’s 

physical examinations by treating sources and a consultative examiner. (Tr. 32). The exams 

showed: normal gait; no difficulty walking; mild halting features getting on and off the exam 

table and out of a chair; limited range of motion in neck, back, hips, and ankles; intact motor 

power in the extremities; tenderness in the thoracic and lumbar spines; and normal fine-finger 

manipulation abilities. (Tr. 32). 

 The prior ALJ did not specifically reference the May 13, 2009, evaluation by Dr. Michele 

Thurston, but the ALJ noted that it was in Pitman’s file. (Tr. 32). Dr. Thurston did not diagnose 

Pitman with fibromyalgia, but she found tender points along the musculature in the paraspinal 

muscles and muscle knots in the scapula bilaterally. (Tr. 32). The ALJ found that evaluations 

after the December 13, 2010 decision did not reflect greater functional limitations. (Tr. 32). The 

ALJ indicated that the examination by Family Associates in February and April of 2011 showed 
7

that Pitman walked without any disturbance of gait. (Tr. 32-33). At the February 2012 exam, 

Dr. Kachmann noted that Pitman walked with a normal gait, but that she had tenderness in her 

neck, shoulder, low back, and right/left buttock areas. (Tr. 33). Dr. Monica Reddy in September 

of 2012 also reported full and painless range of motion of the lumbar, as well as the cervical 

spine. (Tr. 33). From September 2012 to August 2013, Pitman showed moderate restriction in 

lumbar range. (Tr. 33). The ALJ noted that beginning in 2012 Pitman’s condition worsened, yet 

the records did not show greater functional limitations than those observed by the prior ALJ. 

(Tr. 34). 

 The ALJ determined that the evidence after the December 13, 2010 decision did not show 

that Pitman had any pulmonary symptoms or functional limitations greater than those already 

considered. (Tr. 34). The previous evidence reflected a history of treatment for breathing 

ailments in 2007, 2008, and 2009. (Tr. 34). The ALJ indicated that Pitman had exacerbations of 

chronic obstructive pulmonary disease (COPD) in January, April, and November of 2011. (Tr. 

34). Also, in May of 2012, a pulmonary function study showed severe obstructive lung defect 

with mild response to bronchodilator that required hospitalization for exacerbation of COPD. 

(Tr. 35). 

 Dr. Eustace Fernandes noted decreased breath sounds, diminished inspiratory excursion, 

and increased AP diameter, but no use of accessory muscles of respiration. (Tr. 35). The ALJ 

found Dr. Fernandes’ records noteworthy because they indicated that Pitman continued to smoke 

and that she consistently denied chest pain or tightness. (Tr. 35). The ALJ found inconsistencies 

in Dr. Fernandes’ treatment record. (Tr. 35). Also, the ALJ noted that Dr. Fernandes’ records 

indicated that Pitman could do activities of daily living without assistance and housework 

without limitations but that she was unable to participate in sports. (Tr. 35). The ALJ concluded 
8

that these assessments were self-reports made by Pitman. (Tr. 35). Dr. Fernandes referred 

Pitman for pulmonary rehab. (Tr. 35). However, the ALJ noted that there was no record that she 

followed his recommendation. (Tr. 35). The ALJ also noted examinations by other sources that 

found Pitman was breathing easily and that her lungs were clear. (Tr. 35). 

 The prior ALJ addressed Pitman’s insomnia and sleep apnea. (Tr. 36). In her June 2009 

consultative psychological evaluation, Pitman reported that she had difficulty falling and staying 

asleep and that she slept for approximately five hours a night. (Tr. 36). The ALJ concluded that 

the new evidence showed that Pitman had mild sleep apnea. (Tr. 37). On September 16, 2013, 

Pitman reported that her treatment of Modafinil/Provigil was working well, but she made 

inconsistent statements when she testified. (Tr. 37). She testified that despite taking the 

medication she had to nap two to three days a week and that shortly after her naps she was ready 

to go back to sleep. (Tr. 37). The ALJ found that Pitman’s sleep problems could be controlled 

by proper treatment and that Pitman failed to show that her sleep problems were disabling for a 

period of 12 months. (Tr. 37). 

 The ALJ also determined that there was no evidence to support that Pitman’s borderline 

diabetes could not be controlled with proper treatment or that it was disabling for a period of 12 

months. (Tr. 37). In May of 2013, Pitman had an elevated fasting insulin and was started on 

Metformin. (Tr. 37). It was recommended that she have 1200 calorie diet and that she exercise 

five times a week. (Tr. 37). The ALJ also concluded that there was no evidence that Pitman’s 

vitamin D deficiency affected her ability to work nor did Pitman mention complications or a 

need for more aggressive treatment. (Tr. 37). 

 Pitman testified that her hands cramped after five to ten minutes and that she could not 

use them to handle items for more than 15 minutes out of an hour. (Tr. 37-38). Pitman indicated 
9

that she was unwilling to have surgery on her left hand because she claimed that her right carpal 

tunnel surgery did not help. (Tr. 38). However, the ALJ reported that examinations by other 

sources did not support her allegations. (Tr. 38). A June 2012 consultative exam noted normal 

dexterity and normal muscle strength in all four extremities, as well as Dr. Lutz noted normal 

power and strength in upper extremities. (Tr. 38). Dr. Reddy indicated that Pitman had no pain, 

swelling, or crepitus in her fingers, wrists, and elbows. (Tr. 38). In June of 2012 and February 

and August of 2013, Dr. Fernandes noted normal muscle strength and tone and normal power in 

her upper extremities. (Tr. 38). 

 The ALJ indicated that the evidence also did not support Pitman’s complaints of 

kaleidoscope vision followed by severe headaches. (Tr. 38). The ALJ found that the testing did 

not reveal any abnormalities. (Tr. 38). The ALJ determined that the impairment was not severe 

after considering Pitman’s limited treatment, the absence of significant abnormalities, and the 

minimal effect it had on her ability to work. (Tr. 39). 

 The ALJ noted that Pitman indicated that her medications did not help. (Tr. 39). Yet, the 

ALJ found that Dr. Lutz’s exams consistently showed that she was not in acute distress. (Tr. 39). 

The ALJ concluded that her statements were generally unbelievable because it seemed unlikely 

that she would continue treatment with Dr. Lutz for a year and a half without improvement. (Tr. 

39). The ALJ also noted that Pitman’s testimony indicated that she had extremely limited 

physical capabilities. (Tr. 39). She stated that after sitting an hour she needed to walk, but after 

walking she could sit for only 15 to 20 minutes before needing to walk again. (Tr. 39). The ALJ 

found that Pitman’s testimony was not fully credible. (Tr. 39). He noted that her testimony of 

an inability to sit for short durations was contradicted by her ability to drive to the hearing, Fort 

Wayne, the grocery store, and doctors’ appointments in her hometown. (Tr. 39-40). 
10

 The ALJ found that the physicians’ recommendations to walk as much as possible, 

continue increased activities, range of motion stretching, and aerobic activities were not 

consistent with an inability to work or to do sedentary work activities. (Tr. 40). The ALJ also 

noted that given Pitman’s allegations of totally disabling symptoms her treating doctors failed to 

include any work restrictions in her treatment records. (Tr. 40). State agency medical 

consultants determined that Pitman could perform medium work activities, however, the ALJ 

assigned little weight to their opinions because they were outdated and inconsistent with the prior 

decision that limited Pitman to light work. (Tr. 40). 

 The ALJ generally agreed with the prior ALJ’s decision but noted that Pitman’s 

symptoms worsened in 2012. (Tr. 40). The ALJ found that diagnostic testing showed a mild 

lumbar disc disease and a mild to moderate cervical disc disease. (Tr. 40). Therefore, in 

considering those results and Pitman’s absence of functional limitations on physical examination, 

the ALJ found that she was capable of sitting for six to eight hours during an eight hour 

workday. (Tr. 40). Also, due to her obesity and shortness of breath, she was limited to two 

hours standing and/or walking, occasional postural changes, and no climbing of ladders, ropes, 

or scaffolds. (Tr. 40). However, she was capable of bending or stooping. (Tr. 40). The ALJ 

accommodated Pitman’s shoulder and hand pain by not requiring her to lift/carry more than ten 

pounds and limiting her to only frequent reaching and fine/gross manipulation tasks. (Tr. 40). 

The ALJ limited Pitman to work that involved less than occasional exposure to extreme cold. 

(Tr. 40). Also, to prevent exacerbations of the Pitman’s chronic pulmonary disease, she was 

limited to less than occasional exposure to concentrated amounts of fumes, dust, and gases. (Tr. 

40). 
11

 The prior ALJ’s decision determined that Pitman’s mental condition was not severe. (Tr. 

41). She accounted for limitations in her RFC by limiting Pitman to routine, repetitive tasks that 

required a goal-oriented, but not a fast pace. (Tr. 41). The ALJ stated that he considered that 

Pitman’s depression had worsened since the prior decision. (Tr. 41). However, he was in 

general agreement and found that Pitman could perform simple, routine, and repetitive tasks and 

maintain sufficient level of concentration to perform simple tasks and remember simple worklike procedures. (Tr. 41). 

 The ALJ considered Pitman’s testimony that her depression was worse after the prior 

decision and before her treatment at the Bowen Center. (Tr. 42). The ALJ indicated that in 

August 2011 Pitman complained that she wanted to cry all the time, but a September 2011 visit 

to the emergency room indicated that she was cooperative and displayed a calm affect and 

appropriate mood. (Tr. 42). Also in November 2011, she complained that she was crying, 

irritable, tired, and not sleeping well. (Tr. 42). She was prescribed Lexapro and reported that the 

medication was helping. (Tr. 42). The ALJ found that the medical facts and objective medical 

findings were inconsistent with the allegations of severe and disabling limitations of function 

lasting 12 months in duration despite treatment. (Tr. 42). 

 In June of 2012, Dr. Fernandes reported that Pitman was alert and oriented to person, 

place, and time. (Tr. 42). Also in June 2012, consultative psychological evaluator Kenneth 

Bundza, Ph.D., determined that Pitman did not have any marked cognitive or intellectual 

impairments and rated her overall functioning at 65. (Tr. 42). The State agency psychologist 

agreed with Dr. Bundza’s GAF rating and his mental status exam results, and concluded that 

Pitman did not have a severe mental impairment. (Tr. 42). The ALJ noted that Pitman’s 

depression did worsen in 2011 but that Pitman reported it lasted only six months. (Tr. 42). 
12

 Treatment records after Pitman started at the Bowen Center indicated that she had no 

deficiencies in personal care or social interaction. (Tr. 43). The records showed that she was 

able to maintain good eye contact and communicate and that her speech had normal content, 

comprehension, and tone. (Tr. 43). The ALJ found that Pitman’s therapy records indicated 

worsening symptoms but that the treatment records failed to show that Pitman had greater 

functional limitations than those given in the previous RFC. (Tr. 44). 

 At step four, the ALJ found that Pitman could not perform her past relevant work. (Tr. 

45). Considering Pitman’s age, education, work experience, and RFC, the ALJ concluded that 

there were jobs in the national economy that she could perform, including sorter (400 to 450 jobs 

regionally, 20,000 jobs in Indiana, and 500,000 jobs nationally), assembler (100 to 150 jobs 

regionally, 5,000 jobs in Indiana, and 230,000 jobs nationally), and a final assembler (200 to 240 

jobs regionally, 10,000 jobs in Indiana, and 500,000 jobs nationally). (Tr. 45). 

Discussion

 The standard for judicial review of an ALJ’s finding that a claimant is not disabled within 

the meaning of the Social Security Act is limited to a determination of whether those findings are 

supported by substantial evidence. 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.”); 

Moore v. Colvin, 743 F.3d 1118, 1120–21 (7th Cir. 2014); Bates v. Colvin, 736 F.3d 1093, 1097 

(7th Cir. 2013) (“We will uphold the Commissioner’s final decision if the ALJ applied the 

correct legal standards and supported his decision with substantial evidence.”). Courts have 

defined substantial evidence as “such relevant evidence as a reasonable mind might accept to 

support such a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 

L. Ed. 2d 852 (1972) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 
13

217, 83 L. Ed. 2d 140 (1938)); see Bates, 736 F.3d at 1098. A court must affirm an ALJ’s 

decision if the ALJ supported his findings with substantial evidence and if there have been no 

errors of law. Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citations omitted). However, 

“the decision cannot stand if it lacks evidentiary support or an adequate discussion of the issues.” 

Lopez ex rel Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). 

 Disability insurance benefits are available only to those individuals who can establish 

“disability” under the terms of the Social Security Act. The claimant must show that she is 

unable “to engage in any substantial gainful activity by reason of any medically determinable 

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

can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. 

§ 423(d)(1)(A). The Social Security regulations enumerate the five-step sequential evaluation to 

be followed when determining whether a claimant has met the burden of establishing disability. 

20 C.F.R. §§ 404.1520. The ALJ first considers whether the claimant is presently employed or 

“engaged in substantial gainful activity.” 20 C.F.R. §§ 404.1520(b). If she is, the claimant is 

not disabled and the evaluation process is over. If she is not, the ALJ next addresses whether the 

claimant has a severe impairment or combination of impairments that “significantly 

limits . . . physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c); see 

Williams v. Colvin, 757 F.3d 610, 613 (7th Cir. 2014) (discussing that the ALJ must consider the 

combined effects of the claimant’s impairments). Third, the ALJ determines whether that severe 

impairment meets any of the impairments listed in the regulations. 20 C.F.R. § 401, pt. 404, 

subpt. P, app. 1. If it does, then the impairment is acknowledged by the Commissioner to be 

conclusively disabling. However, if the impairment does not so limit the claimant’s remaining 

capabilities, the ALJ reviews the claimant’s “residual functional capacity” and the physical and 
14

mental demands of her past work. If, at this fourth step, the claimant can perform her past 

relevant work, she will be found not disabled. 20 C.F.R. §§ 404.1520(e). However, if the 

claimant shows that her impairment is so severe that she is unable to engage in her past relevant 

work, then the burden of proof shifts to the Commissioner to establish that the claimant, in light 

of her age, education, job experience, and functional capacity to work, is capable of performing 

other work and that such work exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. 

§§ 404.1520(f). 

 First, Pitman has argued that the ALJ failed to incorporate his conclusion that Pitman had 

moderate difficulties in concentration, persistence, or pace into the hypothetical question posed 

to the VE. The ALJ’s RFC assessment and the hypothetical posed to the VE must incorporate all 

of the claimant’s limitations supported by the medical record. Yurt v. Colvin, 758 F.3d 850, 857 

(7th Cir. 2014) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010)); 

Indoranto v. Barnhart, 374 F.3d 470, 473–74 (7th Cir. 2004) (“If the ALJ relies on testimony 

from a vocational expert, the hypothetical question he poses to the VE must incorporate all of the 

claimant’s limitations supported by medical evidence in the record.”). That includes any 

deficiencies the claimant has in concentration, persistence, or pace. Yurt, 758 F.3d at 857; 

O’Connor-Spinner, 627 F.3d at 619 (“Among the limitations the VE must consider are 

deficiencies of concentration, persistence and pace.”); Stewart v. Astrue, 561 F.3d 679, 684 (7th 

Cir. 2009) (indicating the hypothetical question “must account for documented limitations of 

‘concentration, persistence, or pace’”) (collecting cases). The most effective way to ensure that 

the VE is fully apprised of the claimant’s limitations is to include them directly in the 

hypothetical. O’Connor-Spinner, 627 F.3d at 619. 
15

 However, ALJs do not need to state explicitly “concentration, persistence, or pace” in the 

hypothetical for all cases. Yurt, 758 F.3d at 857; O’Connor-Spinner, 627 F.3d at 619. Rather, a 

court may assume a VE’s familiarity with a claimant’s limitations, despite deficiencies in the 

hypothetical, when the VE independently reviewed the medical record or heard testimony 

directly addressing those limitations. O’Connor-Spinner, 627 F.3d at 619; Simila v. Astrue, 573 

F.3d 503, 521 (7th Cir. 2009). This exception does not apply if the ALJ poses a series of 

increasingly restrictive hypotheticals because courts infer that the VE’s attention is focused on 

the hypotheticals and not the record. O’Connor-Spinner, 627 F.3d at 619; Young v. Barnhart, 

362 F.3d 995, 1003 (7th Cir. 2004). The ALJ posed a series of increasingly restrictive 

hypotheticals. (Tr. 101-104). Therefore, this exception does not apply. 

 An ALJ’s hypothetical may omit “concentration, persistence, or pace” when it is clear 

that the ALJ’s phrasing specifically excluded tasks that someone with the claimant’s limitations 

could not perform. O’Connor-Spinner, 627 F.3d at 619. For example, courts have upheld 

hypotheticals that restricted a claimant to low-stress work when the limitations were stress or 

panic related. See Johansen v. Barnhart, 314 F.3d 283, 285, 288–89 (7th Cir. 2002) (upholding 

a hypothetical formulated in terms of “repetitive, low-stress” work because the description 

eliminated positions likely to trigger symptoms of the panic disorder that originated the 

claimant’s moderate limitations in concentration, persistence, or pace); Arnold v. Barnhart, 473 

F.3d 816, 820, 823 (7th Cir. 2007) (upholding a hypothetical that restricted the claimant to lowstress, low-production work when stress-induced headaches, frustration, and anger caused the 

claimant’s difficulties in concentration, persistence, or pace). The ALJ did not use the term lowstress nor are the ALJ’s limitations stress or panic related. Therefore, this exception does not 

apply. 
16

 Courts may uphold a hypothetical that does not mention “concentration, persistence, or 

pace” when the underlying conditions were mentioned and the link between the underlying 

condition and the concentration difficulties was apparent enough to incorporate those difficulties 

by reference. See Simila, 573 F.3d at 521–22 (upholding the hypothetical but indicating the 

failure to include the specific limitations was “troubling”). Generally, terms like “simple, 

repetitive tasks” alone do not exclude from the VE’s consideration those positions that present 

significant problems with concentration, persistence, or pace. Stewart, 561 F.3d at 684–85 

(finding hypothetical limited to simple, routine tasks did not account for limitations of 

concentration, persistence, or pace); see Kasarsky v. Barnhart, 335 F.3d 539, 544 (7th Cir. 

2003) (posing hypothetical as individual of borderline intelligence did not account for limitations 

of concentration). The ALJ did not mention Pitman’s underlying conditions. Therefore, this 

exception does not apply. 

 The ALJ found that Pitman had moderate difficulties in concentration, persistence, or 

pace. (Tr. 28). The ALJ posed the following hypothetical to the VE: 

Please assume an individual of the claimant’s age, education, and 

past work. Such hypothetical individual is capable of sitting for 

six to eight hours out of an eight hour work day, carrying, pushing 

and pulling ten pounds throughout the work day. The individual’s 

-- no ropes, ladders, or scaffolds, occasional stairs and ramps, 

frequent bending and stooping in addition to what is already 

required to sit. The individual is capable of frequent reaching and 

frequent fine and gross manipulation with the upper extremities. 

The individual is limited to simple, routine, repetitive tasks. The 

individual can maintain the concentration required to perform 

simple tasks, and can remember simple work like procedures. I’m 

going to add to that the individual’s limited to more – to occasional 

exposure – to less than occasional exposure to concentrated and 

extreme amounts of fumes, dust, and gases as well as extreme cold. 

Could such an individual be able to perform the past work as she 

performed it or as it is otherwise performed in the national 

economy? 
17

(Tr. 101-102). Based on the hypothetical, the VE determined that Pitman could not perform her 

past relevant work but that she could perform work in the sedentary level. (Tr. 102). 

 The Commissioner has argued that the ALJ limited Pitman to simple, routine, and 

repetitive tasks and remembering only simple work-like procedures and work where she could 

maintain a sufficient level of concentration to perform simple tasks. Therefore, the 

Commissioner contends that the ALJ went beyond a limitation to unskilled work or simple and 

repetitive tasks. The Commissioner also has made arguments that pertained to the ALJ’s RFC. 

However, Pitman’s contention is that the ALJ did not include moderate limitations in 

concentration, persistence, or pace in his hypothetical to the VE. 

 The ALJ limited Pitman to simple, routine, and repetitive tasks. Courts repeatedly have 

held terms like “simple, repetitive tasks” alone do not exclude from the VE’s consideration those 

positions that present significant problems with concentration, persistence, or pace. Stewart, 561 

F.3d at 684–85 (finding hypothetical limited to simple, routine tasks did not account for 

limitations of concentration, persistence, or pace); see also Varga, 794 F.3d at 814. 

 However, the ALJ went further and found that Pitman could maintain the concentration 

required to perform simple tasks and could remember simple work-like procedures. The ALJ’s 

hypothetical failed to go beyond the limitation of simple, repetitive tasks. A hypothetical that 

described an individual who could “remember and carry out unskilled task[s] without special 

considerations” did not account for claimant's limitations in concentration, persistence, or pace. 

Yurt v. Colvin, 748 F.3d 850, 855, 858–59 (7th Cir. 2014). Therefore, limiting Pitman to 

remembering and carrying out simple tasks did not suffice. See Reed v. Colvin, 2016 WL 

3537194, at *5 (N.D. Ind. 2016). Limitations to “simple, repetitive tasks” in the hypothetical 

posed to VEs do not generally account for limitations in concentration, persistence, and pace. 
18

O'Connor–Spinner, 627 F.3d at 620 (where the claimant's concentration problems were 

depression-related and a hypothetical for "repetitive tasks with simple instructions" was found 

inadequate). The hypothetical failed to account for Pitman’s psychosocial stressors and ongoing 

pain that the ALJ found caused her distractions and that created difficulties for her to sustain 

concentration and focus. (Tr. 28). 

 Therefore, the ALJ erred on this issue. On remand, the ALJ should include Pitman’s 

limitations in concentration, persistence, or pace in the hypothetical presented to the VE. 

 Next, Pitman has argued that the ALJ improperly evaluated the credibility of her 

symptom testimony. This court will sustain the ALJ’s credibility determination unless it is 

“patently wrong” and not supported by the record. Bates v. Colvin, 736 F.3d 1093, 1098 (7th 

Cir. 2013); Schmidt v. Astrue, 496 F.3d 833, 843 (7th Cir. 2007); Prochaska v. Barnhart, 454 

F.3d 731, 738 (7th Cir. 2006) (“Only if the trier of fact grounds his credibility finding in an 

observation or argument that is unreasonable or unsupported . . . can the finding be reversed.”). 

The ALJ’s “unique position to observe a witness” entitles his opinion to great deference. Nelson 

v. Apfel, 131 F.3d 1228, 1237 (7th Cir. 1997); Allord v. Barnhart, 455 F.3d 818, 821 (7th Cir. 

2006). However, if the ALJ does not make explicit findings and does not explain them “in a way 

that affords meaningful review,” the ALJ’s credibility determination is not entitled to deference. 

Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir. 2002). Further, “when such determinations rest 

on objective factors or fundamental implausibilities rather than subjective considerations [such 

as a claimant’s demeanor], appellate courts have greater freedom to review the ALJ’s decision.” 

Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000); see Bates, 736 F.3d at 1098. 

 The ALJ must determine a claimant’s credibility only after considering all of the 

claimant’s “symptoms, including pain, and the extent to which [the claimant’s] symptoms can 
19

reasonably be accepted as consistent with the objective medical evidence and other evidence.” 

20 C.F.R. ' 404.1529(a); Arnold v. Barnhart, 473 F.3d 816, 823 (7th Cir. 2007) (“[S]ubjective 

complaints need not be accepted insofar as they clash with other, objective medical evidence in 

the record.”); Scheck v. Barnhart, 357 F.3d 697, 703 (7th Cir. 2004). If the claimant’s 

impairments reasonably could produce the symptoms of which the claimant is complaining, the 

ALJ must evaluate the intensity and persistence of the claimant’s symptoms through 

consideration of the claimant’s “medical history, the medical signs and laboratory findings, and 

statements from [the claimant, the claimant’s] treating or examining physician or psychologist, 

or other persons about how [the claimant’s] symptoms affect [the claimant].” 20 C.F.R. 

' 404.1529(c); see Schmidt v. Barnhart, 395 F.3d 737, 746–47 (7th Cir. 2005) (“These 

regulations and cases, taken together, require an ALJ to articulate specific reasons for 

discounting a claimant’s testimony as being less than credible, and preclude an ALJ from merely 

ignoring the testimony or relying solely on a conflict between the objective medical evidence and 

the claimant’s testimony as a basis for a negative credibility finding.”). 

 Although a claimant’s complaints of pain cannot be totally unsupported by the medical 

evidence, the ALJ may not disregard an individual’s statements about symptoms solely based on 

objective medical evidence. SSR 16-3p, at *53; see Moore v. Colvin, 743 F.3d 1118, 1125 (7th 

Cir. 2014) (“‘[T]he ALJ cannot reject a claimant’s testimony about limitations on her daily 

																																																								 3 The Social Security Administration updated its guidance about evaluating a claimant’s symptoms. See SSR 

16-3p, 2016 WL 1119029 (effective March 28, 2016). SSR 16-3p superseded SSR 96-7p and removed the term 

“credibility” from the Administration’s policies. SSR 16-3p at *1. The new policy clarifies that an ALJ should not 

examine a claimant’s character similar to an adversarial proceeding when evaluating the claimant’s subjective 

symptoms. SSR 16-3p at *1. Although SSR 16-3p post-dates the ALJ hearing in this case, a regulation that clarifies 

rather than changes existing law is appropriate on appeal. Pope v. Shalala, 998 F.2d 473, 482–83 (7th Cir. 1993), 

overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999). Because SSR 16-3p clarifies the 

Administration’s policies, this court will evaluate the ALJ’s findings under the Administration’s new guidance. See 

Roper v. Colvin, 2016 WL 3940035, at *3 (N.D. Ill. July 21, 2016) (finding it appropriate to consider the new 

regulation on appeal). 
20

activities solely by stating that such testimony is unsupported by the medical evidence.’”) 

(quoting Indoranto, 374 F.3d at 474); Carradine v. Barnhart, 360 F.3d 751, 754 (7th Cir. 2004) 

(“If pain is disabling, the fact that its source is purely psychological does not disentitle the 

applicant to benefits.”). Rather, if the 

[c]laimant indicates that pain is a significant factor of his or her 

alleged inability to work, the ALJ must obtain detailed descriptions 

of the claimant’s daily activities by directing specific inquiries about 

the pain and its effects to the claimant. He must investigate all 

avenues presented that relate to pain, including claimant’s prior 

work record, information and observations by treating physicians, 

examining physicians, and third parties. Factors that must be 

considered include the nature and intensity of the claimant’s pain, 

precipitation and aggravating factors, dosage and effectiveness of 

any pain medications, other treatment for relief of pain, functional 

restrictions, and the claimant’s daily activities. (internal citations 

omitted). 

Luna v. Shalala, 22 F.3d 687, 691 (7th Cir. 1994); see Zurawski v. Halter, 245 F.3d 881, 

887-88 (7th Cir. 2001). 

 In addition, when the ALJ discounts the claimant’s description of pain because it is 

inconsistent with the objective medical evidence, he must make more than “a single, conclusory 

statement . . . . The determination or decision must contain specific reasons for the weight given 

to the individual’s symptoms, be consistent with and supported by the evidence, and be clearly 

articulated so the individual and any subsequent reviewer can assess how the adjudicator 

evaluated the individual’s symptoms.” SSR 16-3p, at *9; see Minnick v. Colvin, 775 F.3d 929, 

937 (7th Cir. 2015) (“[A] failure to adequately explain his credibility finding by discussing 

specific reasons supported by the record is grounds for reversal.”) (citations omitted); Zurawski, 

245 F.3d at 887; Diaz v. Chater, 55 F.3d 300, 307–08 (7th Cir. 1995) (finding that the ALJ must 

articulate, at some minimum level, his analysis of the evidence). He must “build an accurate and 

logical bridge from the evidence to his conclusion.” Zurawski, 245 F.3d at 887 (quoting
21

Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). A minor discrepancy, coupled with the 

ALJ’s observations is sufficient to support a finding that the claimant was incredible. Bates, 736 

F.3d at 1098. However, this must be weighed against the ALJ’s duty to build the record and not 

to ignore a line of evidence that suggests a disability. Bates, 736 F.3d at 1099. 

 First, Pitman contends that the ALJ improperly faulted her for her respiratory problems. 

The ALJ reported that Pitman had exacerbations of breathing problems but that they were short 

lived and resolved with treatment. (Tr. 36). The ALJ noted that Dr. Fernandes’ records 

indicated that Pitman continued to smoke despite shortness of breath and that she consistently 

denied chest pain or tightness. (Tr. 35). Also, the ALJ found that the record did not indicate that 

Pitman followed Dr. Fernandes’ referral for pulmonary rehabilitation. (Tr. 35). Pitman contends 

that Dr. Fernandes reported that she was in compliance with her treatment. The ALJ failed to 

question Pitman about her lack of treatment and thus must not draw inferences from this failure. 

See Craft v. Astrue, 539 F.3d 668, 679 (7th Cir. 2008) (“[T]he ALJ ‘must not draw any 

inferences’ about a claimant’s condition unless the ALJ has explored the claimant’s explanations 

as to the lack of medical care.”) (quoting SSR 96-7p). 

 Pitman has argued that the ALJ cherry-picked evidence. Pitman indicated that the ALJ 

failed to cite that she had made attempts to cut down on her cigarette smoking. The ALJ found 

that Pitman’s diagnosis of asthmatic bronchitis was associated with tobacco abuse. (Tr. 34). The 

Commissioner acknowledged that it was unreliable to rest a credibility determination on 

Pitman’s use of tobacco. The ALJ only noted that Pitman continued to smoke and that smoking 

exacerbated her symptoms. The Commissioner has argued that the ALJ did not find that if 

Pitman stopped smoking her ability to work would be restored or that her statements were less 

credible because she smoked. 
22

 Next, Pitman has argued that her statement that the medications taken to control her sleep 

problems worked well was not inconsistent with her testimony that she napped two or three days 

a week. Pitman contends that it was improper for the ALJ to assume that since she stated that the 

medications helped her that she no longer had problems. The Commissioner contends contrary 

to Pitman’s argument that the ALJ discussed Pitman’s sleep apnea in his RFC finding and 

restricted her to sedentary work with appropriate limitations in postural activities and 

maintaining concentration. The ALJ listed Pitman’s sleep apnea as a severe impairment at step 

two. (Tr. 26). Therefore, the ALJ found that Pitman’s sleep apnea placed limitations on her and 

did not ignore evidence. 

 Pitman has argued that the ALJ failed to cite contrary evidence regarding problems 

relating to her hands. She referred to a MRI taken in 2013 that showed a number of objective 

problems with her hands. However, the ALJ did account for other evidence and considered 

Pitman’s carpal tunnel syndrome a severe impairment at step two. Also, he discussed the nerve 

conduction studies, which showed mild bilateral median neuropathy and placed a restriction on 

fine and gross manipulation in the RFC. The ALJ credited Pitman’s complaints, therefore the 

ALJ’s failure to reference the MRI taken in 2013 was inconsequential to the outcome of 

disability. 

 The ALJ acknowledged Pitman’s diagnosis of respiratory issues, sleep apnea, and carpal 

tunnel syndrome. He cited medical evidence that suggested Pitman was capable of only 

sedentary work and placed restriction on her fine and gross manipulation in the RFC. Also, to 

account for Pitman’s respiratory issues, the ALJ limited her work environment to tolerate less 

than occasional exposure to concentrated amounts of fumes, dust, gases, and extreme cold. (Tr. 
23

30). Therefore, the ALJ accounted Pitman’s limitations and discussed her medical history at 

length building a logical bridge from the evidence to his conclusion. 

 Pitman contends that the lack of clarity in the ALJ’s questioning undercut his finding that 

her testimony about the effectiveness of her treatment was inconsistent. Pitman contends that the 

ALJ failed to make clear in his questioning whether he was inquiring into the long term or short 

term effects of her medications. The Commissioner has argued that the ALJ’s credibility 

findings do not have to specify which statements were not credible. Rather, the ALJ concluded 

that Pitman’s limiting effects of her impairments were not adequately reflected in the medical 

opinion evidence, treatment history, and activities for the period in question. 

 The ALJ cited substantial evidence in the record which was inconsistent with Pitman’s 

testimony. Pitman reported that Cymbalta was helpful, treatment with intramuscular morphine 

sulfate and valium made her back pain feel much better, and Dr. Lutz’s exams from December 

2011 to August 2013 reported her as pleasant and in no acute distress. (Tr. 39). The Seventh 

Circuit has held that where an ALJ's credibility determination has evidentiary support, it is not 

patently wrong. Crawford v. Astrue, 633 F.Supp.2d 618, 633–34 (N.D. Ill. 2009); See Jens v. 

Barnhart, 347 F.3d 209, 213–14 (7th Cir. 2003) (where the ALJ's credibility determination was 

supported by evidence in the record, it was not patently wrong even though the ALJ did not 

specify which of claimant's statements were not credible, nor provide evidentiary support in his 

decision). 

 Next, Pitman has argued that the ALJ inappropriately considered her activities of daily 

living, like her ability to drive. The ALJ noted that Pitman was able to drive to Fort Wayne for 

doctor appointments, the grocery store, local doctor appointments, and the hearing. (Tr. 39-40). 

The ALJ indicated that Pitman’s ability to drive was inconsistent with her extremely limited 
24

capacities for sitting. (Tr. 39-40). Instead of making assumptions, the ALJ should have inquired 

into this issue at the hearing. The ALJ failed to explain how the ability to drive undermined her 

medical complaints. 

 The ALJ found that Pitman’s physicians’ recommendations for treatment were not 

consistent with her alleged significant limitations. (Tr. 40). The ALJ noted that Pitman’s 

doctors recommended that she walk as much as possible, bike, and swim and that she do aerobic 

exercises, tai chi, and yoga. (Tr. 40). The ALJ concluded that if Pitman was as limited as she 

alleged her doctors would not recommend such a rigorous regimen of activities. Pitman has 

argued that the treatment suggested by her doctors was appropriate for her fibromyalgia. The 

regulations expressly permit the ALJ to consider a claimant's treatment history. 20 C.F.R. § 

404.1529(c)(3)(v). Because the ALJ’s are given deference, the court will not question the ALJ’s 

finding that Pitman’s treatment was rigorous given her alleged impairments. See Simila v. 

Astrue, 573 F.3d 503, 519 (7th Cir. 2009). Therefore, the ALJ reasonably found that these 

activities were inconsistent with Pitman’s testimony and her claims of limitations. 

 Pitman has argued that since she was unemployed medical records will be devoid of work 

restrictions. The absence of major work restrictions in Pitman’s medical records does not 

illuminate the question of her credibility because she was unemployed throughout the time in 

question. Eskew v. Astrue, 462 Fed.Appx 613, 616 (7th Cir. 2011) (unpublished). Finally, 

Pitman has argued that the ALJ failed to consider her good work history. The Commissioner 

correctly has argued that work history was just one factor among many and it was not 

dispositive. Shumaker v. Colvin, 632 Fed.Appx. 861, 867 (7th Cir. 2015). 

 Pitman has pointed to errors in the ALJ’s credibility analysis, however, it was not 

patently wrong. Therefore, the ALJ has built an accurate and logical bridge from the evidence to 
25

his credibility finding. The ALJ properly consider Pitman’s subjective complaints and provided 

specific evidence to undermine the credibility of those complaints. He based his analysis on 

multiple factors as the regulations require. However, since this matter is being remanded on a 

separate issue, the ALJ can explain his credibility determination on remand. 

 Based on the foregoing reasons, the decision of the Commissioner is REMANDED for 

further proceedings consistent with this order. 

 ENTERED this 31st day of March, 2017. 

 /s/ Andrew P. Rodovich 

 United States Magistrate Judge