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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

VIRGIE PORTER )

)

Plaintiff, )

) No. 04 C 6009

v. )

)

JO ANNE B. BARNHART ) HONORABLE DAVID H. COAR

 )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Virgie Porter (“Porter” or “Plaintiff”) applied for disability insurance benefits

(“DIB”) from the Social Security Administration (“SSA”). After the SSA denied her application

and her reconsideration request, Plaintiff asked for a hearing. The Administrative Law Judge

(“ALJ”) who conducted the hearing concluded that Porter was not disabled for DIB purposes. 

After the Social Security Appeals Council denied Porter’s request for review, she sought judicial

review of the ALJ’s decision, by filing a complaint against SSA Commissioner Jo Anne Barnhart

(“Barnhart” or “Defendant”). At summary judgment, this Court found that there was an

inadequate basis for the ALJ’s ruling and remanded the case for additional proceedings. On

remand, the ALJ produced a page that had been missing from the record, the absence of which

was key to this Court’s finding that there was an inadequate basis for the ALJ’s conclusion. 

Now before this Court is Plaintiff’s Motion to Alter or Amend the Final Judgment and Award

Her Disability Benefits (Doc. No. 56), brought in light of this new evidence under Fed. R. Civ.

P. 60(b)(2). After reviewing Plaintiff’s case for reconsideration on the merits, Plaintiff’s motion

is DENIED.
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1. FACTS 

The factual and procedural posture of this matter has already been described by this

Court in its summary judgment opinion dated March 26, 2006 (Doc. No. 46) (“Summ. J. Op.”). 

Therefore, for present purposes this Court need only summarize the relevant facts. 

The ALJ was asked to consider “whether the claimant is entitled to a period of disability

and Disability Insurance Benefits (“DIB”) under Sections 216(I) and 223 of the Social Security

Act. The specific issue is whether she is under a disability, which is defined as the 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 12 months.” 

Applying the standard five-step DIB analysis of 20 CFR § 404.1420, the ALJ found that

“claimant has at least one medically determinable severe impairment within the meaning of the

Regulations,” including “hypertension, non-insulin dependent diabetes mellitus, osteoarthritis of

the left shoulder, a personality disorder NOS, a mood disorder with depressive features and

anxiety secondary to medical complaints, and a pain disorder with both a medical condition and

psychological factors.” At step three of this analysis, however, he concluded that none of these

impairments were sufficiently severe to qualify Plaintiff for presumptive disability under

Appendix 1, Subpart P, Regulations No. 4 (“Appendix 1”). Then, at step four, the ALJ found

that her residual functional capacity (“RFC”) would allow her to perform “past relevant work,”

namely, the ownership and administration of a cleaning service. On this basis, Plaintiff was

deemed not disabled.
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In this Court’s summary judgment opinion, we found that the ALJ had failed to

adequately support his conclusions regarding Plaintiff’s ability to work according to the

applicable terms of Appendix 1. In light of the missing page, this Court was nonetheless “unable

to reverse the ALJ decision and award benefits to Porter. The Court reache[d] this conclusion

with great reluctance because the loss of a portion of the ALJ’s decision prejudices Porter by

delaying an ultimate decision on her claim and forcing her to relitigate at least part of that claim. 

That portion of the ALJ’s decision that is contained in the record displays a lack of analysis or

logical link between the evidence and the ALJ’s ultimate findings.” Summ. J. Op. at 15. As a

result, the Court remanded the matter to the SSA pursuant to sentence four of 42 U.S.C. § 405(g)

for additional proceedings pursuant to the opinion. During subsequent proceedings related to

fees, this Court repeated its frustration over the SSA’s failure to create a complete record, stating

that “only the incompleteness of the record prevented this Court from reversing the ALJ and

awarding benefits to Porter.” Fees Op. at 4. 

On remand, the ALJ produced the missing page to the parties. In light of this, Plaintiff

has moved for reconsideration of this Court’s prior opinion, arguing that the case should be

reversed in light of the SSA’s “egregious mishandling of this matter and the delay and wasted

time and effort engendered by such mishandling,” as well as the strong language of this Court’s

prior opinions on this issue. 

2. LEGAL STANDARD

Rule 60(b)(2) of the Federal Rules of Civil Procedure provides for relief from a final

judgment due to “newly discovered evidence which by due diligence could not have been

discovered” earlier. Fed.R.Civ.P. 60(b)(2). 
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Defendant has conceded that the new evidence makes vacation of the original remand

order appropriate and urges this Court to simply consider the case on its merits and affirm or

reverse and grant benefits as it sees fit. While this Court is inclined to do so and avoid any

additional proceedings in this already prolonged matter, for the reasons stated below the failings

discussed at summary judgment remain and the remand order will stand. 

The Agency’s final decision is subject to judicial review pursuant to 42 U.S.C. § 405(g),

which provides that the findings “as to any fact, if supported by substantial evidence, shall be

conclusive.” The district court will uphold the ALJ's ultimate decision as long as the ALJ's

findings of fact are supported by substantial evidence and there are no errors of law. Clifford v.

Apfel, 227 F.3d 863, 869 (7th Cir. 2000) (citing Rohan v. Chater, 98 F.3d 966, 970 (7th Cir.

1996)). Substantial evidence is “such relevant evidence as a reasonable mind might accept as

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

L.Ed.2d 842 (1971). The district court reviews the entire administrative record, but does not

reweigh evidence, resolve conflicts, decide credibility questions, or substitute its own judgment

for that of the Commissioner. Clifford, 227 F.3d at 869. This is a “deferential, but not entirely

uncritical” standard of review, because the ALJ's decision will not stand “if it lacks evidentiary

support or [contains] an inadequate discussion of the issues.” Golembiewski v. Barnhart, 322

F.3d 912, 915 (7th Cir. 2003). This Court may not set aside an inference made by the ALJ

simply because we find the opposite conclusion more reasonable or question the factual basis. 

Pancake v. AMAX Coal Co., 858 F.2d 1250, 1255 (7th Cir.1988).
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3. ANALYSIS

This Court must consider whether the page now returned to the record resolves

uncertainties in the ALJ’s opinion so as to make remand unnecessary. The parties also urge this

Court to resolve the determination of benefits on the merits.

a. Production of missing page does not automatically resolve failings in the record

Plaintiff argues that reversal of the ALJ’s decision is fait accompli now that the missing

page has been recovered. Plaintiff largely relies on language used by this Court to express its

frustration regarding the incomplete record. See, e.g., Summ. J. Mot. at 15; see also Fees

Opinion at 4 (“only the incompleteness of the record prevented this Court from reversing the

ALJ and awarding benefits to Porter.”). However, while this Court did state that the lack of the

opinion’s fifth page prevented us from granting Plaintiff’s benefits outright, this was not

equivalent to saying that production of the page would automatically result in the granting of

those benefits – it was not the existence or non-existence of the page that was dispositive, but

rather it was the Court’s inability to know the contents of the page in question. See Summ. J.

Op. at 15 (“That portion of the ALJ’s decision that is contained in the record displays a lack of

analysis or logical link between the evidence and the ALJ’s ultimate findings.”) (emphasis

added). 

Therefore, this Court must consider the contents of the additional page, in light of the

record as a whole, and determine whether reconsideration of the remand order is appropriate. 

b. ALJ’s determination remains unsupported by the record

At summary judgment, this Court was troubled by the lack of explanation provided by

the ALJ. Specifically, it was unclear from the record at the time how the ALJ considered and
1

Though it is not directly referenced as a reason for her lack of credibility, the ALJ

mentioned another discrepancy in her testimony, whereby she claimed that she did not visit a

psychiatrist at Cook County Hospital because of the wait, but acknowledged that she would wait

up to two hours there to see other doctors. See ALJ Op. at 3. 

2

For example, when confronted with the fact that she drives herself to the casino, Plaintiff

attempts to explain away this issue out of fear that the ALJ had come to believe she had been

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weighed: (1) Porter’s testimony at the hearing; (2) medical evidence regarding Plaintiff’s

depression; (3) the testimony of Porter’s long-term friend Abb Locke; and (4) certain comments

by the testifying vocational expert (“VE”). We must consider whether or not the newly

produced page remedies these failings when viewed in the context of the entire record.

i. Plaintiff’s credibility

As of the summary judgment ruling, there was no adequate explanation for why the ALJ

declined to consider Porter’s extensive testimony, in which she described pain she felt on a

nearly constant basis, along with difficulties she had relating to others. With the introduction of

page five of the ALJ’s opinion, however, there is some explanation as to why her testimony was

not given significant weight in the denial of benefits:

In reaching this conclusion, I have considered the claimant’s testimony

and find it to be less than fully credible, as the testimony regarding her

level of depression was contradicted by her later testimony that she visits

friends at the casino even when she has no money. In addition, her

statements regarding her driving activities are not in accord with

statements which the claimant made to the independent medical

examiners.

ALJ Op. at 5.1

 In isolation and in retrospect, these discrepancies may seem relatively minor, and

perhaps not significant enough to warrant disregarding her testimony in its entirety. However, it

can reasonably be inferred that the ALJ viewed these factual conflicts in the context of other

factors available to him at the hearing, such as Plaintiff’s demeanor or speech patterns.2
deceitful. See Tr. at 53-54. The credibility of such an explanation cannot be evaluated ex post

facto based on the transcript alone. 

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Therefore, in light of the additional evidence provided by page five, there is no basis for this

Court to second-guess the ALJ’s determination that Porter’s testimony was not generally

credible. See Clifford, 227 F.3d at 869 (finding that “questions of credibility” made by the ALJ

should not be reconsidered). 

However, even though this Court accepts the ALJ’s general doubts concerning Plaintiff’s

credibility, the impact of this finding requires clarification. The ALJ concludes only that

Plaintiff is “not totally credible.” ALJ Op. at 6. However, this suggests that she was at least

partly credible. Without a more detailed description of the ALJ’s reasoning, it is therefore

unclear what impact Plaintiff’s partial credibility had on several important factors that could

reasonably have been effected by her credibility: (1) testimony before the ALJ regarding her

mobility, pain, and memory problems; (2) accounts of her past work experiences, of which hers

was the only first-hand testimony in evidence; (3) diagnoses by physicians and psychologists

based on information that she provided; and (4) Locke’s testimony, to the extent it was based on

limited, manipulable interactions. While the ALJ references or disregards some of this evidence,

he does not make clear to what extent, if any, these issues were each impacted by doubts over

Plaintiff’s credibility. 

ii. Plaintiff’s depression

To a lesser extent, it is also troubling that, according to the record, the ALJ did not

adequately consider significant evidence that was not reliant on Plaintiff’s testimony, most

importantly, her depression. At the hearing, Plaintiff’s counsel spent the majority of her opening
3

Plaintiff’s counsel’s arguments at opening of course carry no evidentiary weight, but the

fact that this was her focus at the hearing nonetheless highlights the ALJ’s failure to consider

these issues in his opinion.

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comments arguing that it was Porter’s depression more than anything else that prevented her

from working.3 See generally Tr. at 2-3. She also referenced evidence that this depressive

condition was not simply asserted by Plaintiff, but rather was documented by multiple authorities

as a real medical condition. See id.; see also ALJ Op. at 3 (summarizing medical findings);

Clifford v. Apfel, 227 F.3d 863 (7th Cir. 2000) (“[M]ore weight is generally given to the opinion

of a treating physician because of his greater familiarity with the claimant's conditions and

circumstances.”) (citing Whitney v. Schweiker, 695 F.2d 784, 789 (7th Cir.1982); 20 C.F.R. §

404.1527(d)(2)). As acknowledged by the ALJ, these diagnoses included: (1) an internal

medicine consultative examination requested by the Disability Determination Service (“DDS”)

that found “possible delusional thinking regarding the pain in her body as well as poor memory

and intellectual functioning” that he diagnosed as “depression”; (2) a DDS-requested

independent consultative psychiatric evaluation that found “a mood disorder with depressive

features and anxiety,” concluding that she suffered from not only a “mood disorder but also from

a personality disorder [not otherwise specified]”; and (3) a DDS psychologists’ determination

that, based on the psychiatric evaluation record, that Plaintiff “had a medically determinable

severe mental impairment, because she displayed a moderate degree of limitation of her social

functioning and had experienced one or two episodes of decompensation.” ALJ Op. at 3. The

ALJ also acknowledged that these diagnoses were to be afforded particular weight. Id. at 5. 

(“Since DDS consultants are deemed to possess a specific understanding of Federal disability
4

It is possible that the ALJ believed that all Plaintiff’s evaluations related to her

depression were irretrievably tainted by her perceived lack of trustworthiness. See ALJ Op. at 5

(“[H]er statements regarding her driving activities are not in accord with statements which the

claimant made to the independent medical examiners.”). However, this conclusion is not made

explicit, and there is no basis for believing that the treating physicians and psychologists had not

accounted and adjusted for that possibility when they made their diagnoses. 

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programs and the evidence requirements of those programs, their expert medical opinions cannot

be ignored.”). 

The ALJ accepted the fact that Plaintiff was depressed to some extent, stating “I find that

the claimant has at least one medically determinable severe impairment within the meaning of

the Regulations, and that her impairments include hypertension, non-insulin dependent diabetes

mellitus, osteoarthritis of the left shoulder, a personality disorder NOS, a mood disorder with

depressive features and anxiety secondary to medical complaints, and a pain disorder with both a

medical condition and psychological factors.”4

 Id. at 4. Functionally, however, the ALJ found

that this litany of ailments did not significantly limit her activities: “after listening to the

claimant’s testimony regarding her day-to-day activities, I find that she has only mild limitation

of her activities of daily living and social functioning and mild limitation of her ability to

maintain concentration, persistence, or pace, but has had one or two episodes of

decompensation.” Id. at 4. 

In making this conclusion, the ALJ does not seem to have considered the particular

impact that her depression might have had. See Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir.

2002). It is unclear how the ALJ arrived at his conclusion that her depression did not impact her

functional capacity. The ALJ, rather than medical practitioners, is ultimately responsible for

determining how the condition in question impacts the claimant’s RFC. See Clifford v. Apfel,
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227 F.3d 863, 870 (7th Cir. 2000); 20 CFR § 404.1527(e). Therefore, the fact that the medical

diagnoses do not expressly state that she is limited in her professional abilities does not preclude

the ALJ from doing so, particularly where the fact of her depression is established and wellsupported. Also, the ALJ is supposed to go through an extensive, formalized review process

touching on the “four broad function areas” described in 20 C.F.R. § 404.1520a(c)(3). See 20

C.F.R. § 404.1520(e)(2) (stating that the ALJ “must incorporate the pertinent findings and

conclusions based on the technique”). That the ALJ went through this process with respect to

her depression, or at least covered the scope of analysis it demands, is not apparent from the

record. 

Instead of approaching her depression in such a manner, the ALJ mentions but does not

ultimately credit Plaintiff with workplace deficiencies that might have been attributable to

various psychological considerations, depression included. To cover all his bases, the ALJ

offered the VE an expanded hypothetical in which Plaintiff was “moderately impaired ability to

work within a schedule, be punctual, and sustain a routine without special supervision.” 

According to that description the VE still found, and the ALJ concurred, that she could perform

past relevant work. The problem, however, is that even this hypothetical does not get to the

functional impact of her depression, namely, that her mind was “coming and going” and that she

might have had significant memory problems. In light of the limited countervailing factors – the

credibility problems, her casino visits, and the minor tasks she is able to accomplish around the

house – more thorough consideration of depression’s debilitating effects was necessary. 

iii. Testimony of Abb Locke
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The fifth page does not remedy the fact that the ALJ gave no consideration to the

testimony of Abb Locke (“Locke”), who also appeared at the hearing. Locke is a friend of

Plaintiff’s who had cared for her for over 20 years, providing for many of her day-to-day needs. 

Locke testified to Plaintiff’s memory problems, shoulder pain, trouble sleeping, difficulty getting

along with others, and general inability to get around. See generally Tr. at 45 et seq. Had the

ALJ doubted Locke’s credibility, or found that his statements weren’t weighty enough to impact

his ultimate determination, the ALJ’s failure to consider this testimony might have been

justified. However, nowhere in the opinion does he so much as mention Locke’s statements, in

which he made clear that: Plaintiff was prevented from working because “[s]he’s been shaking. 

Her shoulder has been hurting and she wasn’t, haven’t been able to work”; “her mind be going”;

she doesn’t generally socialize with others; and she is prevented from performing a host of athome tasks because “[s]he gets tired and her heart start beating fast. Sometime she can’t move

both her arms.” Tr. at 46-49. This Court sees nothing in the record to discredit this testimony,

and if credited it weighs heavily against Plaintiff’s ability to function at a nominal capacity in her

day-to-day-life, much less meet the requirements of a working environment. The ALJ’s failure

to give this testimony any perceivable weight in his written opinion renders a complete review

impossible.

iv. Incomplete discussion of VE hypothetical and testimony

Also at issue is the testimony of Vocational Expert ("VE") Michael Komie, Ph.D., who

testified at the hearing. Both the RFC and the hypothetical must account for all of the plaintiff's

medically determinable impairments. Kasberger v. Astrue, Slip Copy, 2007 WL 1849450, at *4

(7th Cir. 2007) (citing 20 C.F.R. § 404.1545(a); Young v. Barnhart, 362 F.3d 995, 1002-1003
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(7th Cir. 2004)). However, where the supporting evidence is thin, the relevant limitation need

not be presented to the VE. Kasberger, 2007 WL 1849450, at *4.

The VE characterized Porter's work in billing and collections as semi-skilled and

sedentary, her work as an owner/supervisor of a commercial cleaning service as light and

semi-skilled, and her work as a home-care aide as unskilled and light. The ALJ then presented

the VE with a hypothetical of an individual of Porter's age, education, and vocational

background who could on occasion lift or carry 20 pounds, stand, sit or walk for six hours of an

eight-hour workday, but could not use her left arm above shoulder height and who should avoid

contact with the public and have only limited contact with co-workers and supervisors. The VE

testified that such an individual could perform the commercial cleaning service work, if it was a

night job where the public was not present, or could do billing work but not collections. The

ALJ then asked about an individual who was moderately impaired in her ability to work within a

schedule and be punctual. The VE testified that the billing work would be impacted but the

cleaning service would not. In response to the ALJ's further limitation that the individual needed

to lie down throughout the day because of pain, the VE stated that this would present a

"rehabilitative situation that could not be full-time competitive employment" and would preclude

a job without a “rehabilitation placement.” Plaintiff’s counsel attempted to expand this

hypothetical, but was largely unsuccessful. 

The ALJ’s discussion with the VE regarding an RFC hypothetical was afforded a great

deal of weight. See ALJ Op. at 5-6. However, it is not entirely clear that the offered

hypothetical accurately accounted for Plaintiff’s situation. See discussion supra subsections I

through iii; see also Steele, 290 F.3d at 942 (“[Hypothetical] ordinarily must include all
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limitations supported by medical evidence in the record.”). In addition to the issues mentioned

above that were not addressed through the VE’s hypothetical, the ALJ also did not discuss his

reason for ignoring: (1) Plaintiff’s fear that she might have to take on the work of her employees

should one fall ill, where she was not physically able to accomplish the tasks that such

substitution would demand; and (2) the possibility that Plaintiff indeed found it necessary to rest

for hours each day. The former issue was not addressed in any way in the ALJ’s opinion, and

the latter was included in the expanded hypothetical but apparently not heeded. While the latter

issue may be attributable to the ALJ’s concerns about Plaintiff’s credibility, this is not clear from

the record as it stands. In light of the fact that the hypothetical presented to the VE was clearly

important to the ALJ’s ultimate decision, there is every reason to expect a thorough explanation

on these matters. 

Therefore, in light of the fact that the failings pointed out by this Court in its remand

ruling – specifically, a failure to support disregarding the depressive components of Plaintiff’s

situation, the testimony of Abb Locke, and the tailoring of the design and consideration of the

VE’s hypothetical – were not remedied by the newly produced page, the ALJ’s denial of benefits

remains invalid and affirmation of his ruling is still inappropriate. 

c. Remand is appropriate

Plaintiff argues that in light of Defendant’s failure to properly assemble the record before

this Court, the ALJ’s ruling should be reversed outright. Defendant responds that any award that

is to be granted must be based upon the merits of the case, and that this Court has no authority to

summarily grant benefits in the manner of a sanction as Plaintiff seems to demand. Indeed,

Plaintiff provides this Court with no legal basis on which to award social security benefits
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according to concepts of equity or procedural fairness, even in light of the SSA’s egregious

failure. Despite Plaintiff’s urging, obduracy of the ALJ is not a sufficient basis to grant Plaintiff

DIB. See Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 355-57 (7th Cir. 2005) (vacating

district court’s grant of benefits where evidence was not sufficiently clear, “urg[ing] the

Commissioner to assign a new ALJ to handle any additional proceedings” as a more appropriate

means of addressing the obduracy of the ALJ). Here, there is no evidence of obduracy on the

ALJ’s part, so there is even less of a basis for going over his head regarding the determination of

benefits. See id. 

Defendant argues that this Court should decide this case on its merits rather than

remanding it to the SSA once again. However, the issues involved are not so clear-cut as to

warrant an outright grant of benefits on the merits of the case as Plaintiff would like, as this

Court is limited to granting such a remedy only where “the record can yield but one supportable

conclusion.” Campbell v. Shalala, 988 F.2d 741 (7th Cir. 1993). This is not the case here,

where issues of credibility and subjective determinations are central to the determination of DIB. 

At the same time, there are still too many unresolved factual matters to affirm the ALJ. The

record – even with the return of the missing page – does not explain the ALJ’s “analysis of the

evidence with enough detail and clarity to permit meaningful appellate review.” Briscoe ex rel.

Taylor v. Barnhart, 425 F.3d 345 (7th Cir. 2005). 

Though it is painful to postpone resolution of this case any longer, remand to the SSA is

the only appropriate response. Therefore this Court’s prior remand order is reissued. If this

Court had the power to decide this case on the merits as a sanction for dilatory action, that would

be done. When this case was here the first time, counsel for the Defendant requested and was
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granted continuances to locate the missing page of the ALJ’s decisions. After several weeks,

counsel advised the court that, despite good faith effort, it could not be located. Upon remand,

the ALJ immediately produced the missing page from records that should have been easily

available. In the meantime, the Plaintiff has had to wait. It is with great reluctance that this case

is remanded again. 

4. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Alter or Amend the Final Judgment

and Award Her Disability Benefits is DENIED. 

Enter:

/s/ David H. Coar

_____________________________________

David H. Coar

United States District Judge

Dated: September 26, 2007