take breaks or switch hands for above shoulder reaching
activities. (R. at 204, 205.) He could also push/pull a cart
carrying up to 500 pounds with two hands. (R. at 204.) The
evaluator also indicated that Mr. Hastings demonstrated no
difficulties in sitting, reclining, reaching horizontal and below
the waist, and with manual dexterity. (R. at 205.)

The therapist noted that Mr. Hastings complained frequently
throughout the exam of discomfort to his left lower back and left
leg. (Id.) Mr. Hastings similarly testified during his hearing
that he experienced “real bad pain” during the exam, at a level
of nine out of ten, and ended up taking medicine during his lunch
break to alleviate the pain. (R. at 349-51.) Mr. Hastings
testified that he did not agree with the recommendation that he
could do work, because he believed that the exam results were
affected by the fact that he took medicine. (R. at 351). He
informed the test administrators that he did not know he was not
allowed to take medication during the exam, but ended up doing so
to alleviate his pain. (Id.) He testified that they responded
that Mr. Hastings had to resolve the matter with his doctor, and
that they were not going to change the record. (Id.)

I. SSA Physicians: Residual Functional Capacity Assessment

In October 2001, Dr. Bergmann, an SSA physician, reviewed

Mr. Hastings’ medical records and completed a residual functional

capacity assessment (“RFC”) for Mr. Hastings. (See R. at 220-

20


of drowsiness and grogginess after taking prescribed medication.
(R. at 210, 236, 274, 277, 278, 282.)

The Court acknowledges that an ALJ may rely on
inconsistencies between a claimant’s daily activities and his
subjective complaints of pain. Zurawski, 245 F.3d at 887. But,
further articulation is required regarding the inconsistencies
between Plaintiff’s complaints of pain and Plaintiff's daily
activities. Here, the ALJ makes a general statement that
Plaintiff’s daily activities, which include looking for work, are
inconsistent with disability, but the ALJ does not explain the
nature of those inconsistencies. Compare Zurawski, 245 F.3d at
887 (finding that the ALJ’s listing of Plaintiff's daily
activities was not sufficient to discount Plaintiff's
credibility, without explaining the inconsistencies, noting that
minimal daily activities do not necessarily establish that a
person is capable of engaging in substantial gainful activity).
Upon remand, the ALJ should list Plaintiff’s daily activities
that undermine Plaintiff’s complaints of pain and explain how
those activities are inconsistent with Plaintiff’s claims.

The Commissioner argues that the ALJ had “ample reason” to
find that Plaintiff’s complaints of disabling pain and
medication-induced drowsiness were not fully credible. (See Def.

Mem. at 8-10.) But the Commissioner includes reasons that were

4l


statement is just one factor to be considered. Id. The Seventh
Circuit has instructed:

If the allegation of pain is not supported by the objective

medical evidence in the file and the claimant indicates that

pain is a significant factor of his or her alleged inability
to work, then the ALJ must obtain detailed descriptions of
claimant’s daily activities by directing specific inquires

about the pain and its effects to the claimant. Luna, 22

F.3d at 691. [The ALJ] must investigate all avenues

presented that relates to pain, including claimant's prior

work record, information and observations by treating
physicians, examining physicians, and third parties.
Id.

The factors the ALJ must consider include the following: (1)
the location, duration, frequency, and intensity of the pain; (2)
precipitating and aggravating factors; (3) type, dosage,
effectiveness, and side effects of any pain medication; (4)
treatment other than medication for relief of pain; (5)
functional limitations and restrictions; and, (6) the claimant’s
daily activities. Knight, 55 F.3d at 314; Luna, 22 F.3d at 691; 20
C.F.R. §404.1529(c) (3).

The Court finds that the ALJ’s credibility determination
falls short, because he overlooked relevant pieces of evidence
that could support Plaintiff’s claims of pain. The Court
addresses each factor, and the relevant evidence, in turn.

First, the Court agrees that the ALJ should have considered

the side effects of Plaintiff's medication in his credibility

analysis. However, the Court does not agree that the adjustment

37


Plaintiff argues, however, that the results from the FCE report
actually support Plaintiff’s argument that he can not meet the
requirements of light work.® (See Pl. Mem. at 15.) But, the
Court is not convinced by this argument. The FCE personnel noted
that the Plaintiff is currently functioning at a light-medium
work level, as defined by the U.S. Department of Labor. (R. at
203.) The ALJ also classifies jobs as sedentary, light, medium,
heavy, and very heavy, as defined by the Dictionary of
Occupational Titles, published by the Department of Labor. See
20 C.F.R. §404.1567. Thus, the Court agrees with the
Commissioner that, although the findings of the SSA physicians
and the FCE report do not match verbatim, the FCE personnel were

aware of the requirements of light work, as understood by the

ee

no “treating or examining source statement (s) regarding the
claimant's physical capacities in file.” (Pl. Reply at 9.)
However, SSA physicians include a notation in the RFC form that
suggests that the FCE report was considered by the SSA
physicians. (“[Plaintiff] has demonstrated the ability to perform
work between the light and medium ranges.”) (R. at 227.)

® plaintiff notes that the SSA physicians concluded that
Plaintiff could stand for six hours out of an eight-hour workday
with normal work breaks, but the FCE report indicates that
Plaintiff had decreased tolerance for sustained standing. (Pl.
Reply at 10.) Next, Plaintiff points out that the SSA physicians
recommended that Plaintiff not engage in more than occasional
stooping, but the FCE report indicates that the positions of
stooping and twisting should be decreased or eliminated. (Id.)
Lastly, Plaintiff notes that the SSA physicians considered
Plaintiff capable of lengthy walking required for light work, but
the FCE report indicates that Plaintiff had a moderately
decreased tolerance for walking. (Id.)

46


lumbar spine. (Id.) The March 4, 2002 MRI showed that Mr.
Hastings had an annular rent at the L3-L4 level, and a broad-
based disc herniation at the L5-S1 level. (R. at 228, 230-31.)
Upon review of the MRI, the physician recommended that Mr.
Hastings continue his present pain management. (R. at 229).

In June 2002, Mr. Hastings complained of lower back pain
that radiated down his right thigh to his toes. (R. at 260.)
Mr. Hastings also indicated that he took Naprosyn as needed,
which helped to reduce pain. (Id.) Results from a physical exam
revealed no signs of atrophy or spinal tenderness, normal

straight leg raising, slightly antalgic gait, 5/5 muscle strength

in his legs, and the presence of a paraspinal muscle spasm. (R.
at 261). Mr. Hastings agreed to continue his home exercise
program and to try a chronic pain program and clinic. (Id.)

In July 2002, Mr. Hastings reported having shocking,
stabbing pain in his lower back that radiated to his right
buttocks and thigh and that his right leg was weak and buckled
when he sneezed. (R. at 251, 256.) He noted that his pain
improved when he was lying on his back or sitting with his legs
elevated. (Id.) He also indicated that some pain medication
helped to reduce pain, but caused drowsiness. Mr. Hastings did
not take his medications consistently, because he thought they
were to be taken as needed. (Id.) Treatment records showed no

muscle atrophy, normal gait, but unable to walk on his heels and

14


Barnhart, 297 F.3d 589, 595 (7th Cir. 2002). The ALJ must “build
an accurate and logical bridge from the evidence to [his]
conclusion.” Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir.
2002).

While the Court does not require the ALJ to provide a
written evaluation of every piece of evidence or testimony, the
ALJ may not select and discuss only the evidence that favors his
final conclusion. Herron, 19 F.3d at 333. The ALJ must
articulate reasons for “accepting or rejecting entire lines of
evidence.” Id. When the ALJ fails to mention rejected evidence,
the “reviewing court cannot tell if significant probative
evidence was not credited or simply ignored.” Zblewski v.
Schweiker, 732 F.2d 75, 79 (7th Cir. 1984) (quoting Cotter v.
Harris, 642 F.2d 700,705 (3d Cir. 1981)).

A case must be remanded if the ALJ’s decision is not
properly supported by substantial evidence or is so poorly
articulated to prevent meaningful review. Steele, 290 F.3d at
940.

Social Security Regulations

The Social Security Regulations prescribe a sequential five-
step test to determine whether a claimant is disabled. 20 C.F.R.
§404.1520. The ALJ must determine whether the claimant: (1) is
currently unemployed; (2) has a severe impairment or combination

of impairments; (3) has an impairment that meets or equals one of

24


not supplied by the ALJ.’ (See Def. Mem. at 8-10; compare R. at

13-14). As previously discussed, the Court confines its analysis
to the reasons provided by the ALJ in his decision. Steele, 290
F.3d at 941.

The Court lacks a sufficient basis upon which to uphold the
ALJ's credibility determination. While it is the ALJ's role to
determine whether or not to credit Plaintiff’s subjective
complaints of pain and functional limitations, the ALJ has to
show that he considered more than the evidence that supports his
conclusion. On remand, the ALJ must reevaluate Plaintiff’s
complaints of pain, with due regard for the factors raised by
Plaintiff and evidence from the record that supports Plaintiff's
claims. The ALJ also must provide further elaboration regarding
the purported inconsistencies between Plaintiff’s daily
activities and his complaints of pain in order to allow
meaningful review.

Iv. Light Work Determination

Finally, Plaintiff argues that the ALJ erred in concluding

that Plaintiff was capable of light work. (Pl. Mem. at 14.)

Plaintiff argues that, based on his own testimony, and the

—

‘ For example, the Commissioner points to Dr. Rutkowski’s (sic]
(Dr. Morales - consulting physician) comments that Plaintiff's
MRI results were “very mild and cannot explain the great degree
of pain that he is complaining of” as evidence that Plaintiff's
complaints were not fully credible. And, the Commissioner points
to Plaintiff's receipt of unemployment compensation as evidence
that Plaintiff considered himself able to work.

42


by his physicians at the Veterans Administration (VA), but Mr.
Hastings explained that the physicians had advised him to stop
using some of the stronger medications. (R. at 341-45.)

With respect to his daily activities and routines, Mr.
Hastings testified that he lives alone in a trailer park and can
take care of himself and his home. (R. at 333.) He testified,
however, that he experiences severe pain after doing such
household chores as vacuuming and after lifting and unloading
bags of groceries. (R. at 333, 340.) He also has problems tying
his shoes; he cannot lean down to tie them, but has to pull his
feet up or put his feet on the table. (R. at 347.) Mr. Hastings
also testified to having increasing difficulty in supervising his
daughters, who visit him on the weekends, because he has trouble
keeping up with them. (R. at 334.) His pain makes it difficult
for him to concentrate on tasks, and he has problems sleeping -
particulariy, if he does not take his pain medication before 8:00
p.m. (R. at 332, 334, 340.) He testified, however, that he has
no problems with depression, nervousness, or his appetite. (R.
at 332.)

Mr. Hastings also testified regarding his functional
capabilities. (R. at 330-32.) He testified that, if he sits
for more than ten to twenty minutes, he experiences a throbbing,
cutting pain. (R. at 330-31.) When he tries to get up from

sitting, he experiences “real bad pain, aching” in the middle to


III. Credibility Determination

Plaintiff next argues that the ALJ's credibility
determination was erroneous, because he did not consider the
entire record when assessing Plaintiff’s credibility. (Pl. Memo
at 12-4.) Plaintiff argues that the ALJ ignored several factors
in the record supporting his claims of subjective pain and
functional limitations, including: 1) physicians’ adjustment of
Plaintiff’s medication in response to complaints of medication
side effects; 2) significant treatment that Plaintiff pursued
over time for his lower back pain; 3) objective documentation of
a condition that is likely to produce pain; and 4) evidence in
the record demonstrating Plaintiff’s inability to sit, stand, or
walk for prolonged periods of time and side effects from
medication. (Pl. Memo at 12-14.) Plaintiff argues that the ALJ
impermissibly relied on isolated portions of the record — normal
findings from an October 2002 VA exam, Plaintiff’s inconsistent
use of medications, and Plaintiff's daily activities, including
looking for work - to conclude that Plaintiff's statements are
incredible. (Pl. Memo at 14.)

An ALJ's credibility determination will not be disturbed
unless it is patently wrong. Luna v. Shalala, 22 F.3d 687, 690
(7th Cir. 1994). Courts give an ALJ's credibility determinations
special deference, because the ALJ is in the best position to

observe the witness. Shramek v. Apfel, 226 F.3d 809, 811 (7th

35


27.) He reported that Mr. Hastings could occasionally lift
and/or carry 20 pounds, frequently lift and/or carry 10 pounds
and sit, stand, or walk with normal breaks for six hours out of
an eight-hour workday. (R. at 221.) He also reported that Mr.
Hastings was restricted to occasional climbing, balancing,
stooping, kneeling, crouching, and crawling. (R. at 222.)
Another SSA physician, Dr. Vincent, subsequently reviewed the
record and agreed with Dr. Bergmann’s opinion. (R. at 220.)

Based on this RFC, Philip Marks reported in his
reconsideration disability report that Mr. Hastings was limited
to light work activity. (R. at 91). Mr. Marks listed examples of
jobs that could be performed by persons with these functional
limitations: pan greaser, core extruder for electrical equipment,
and conveyor loader II for meat processing. (Id.)

II. The April 16, 2002 Decision of ALJ Mondi

The ALJ found that Plaintiff was not disabled as defined by
the Social Security Act, and denied his claim for DIB and SSI.

(R. at 14-5.) The ALJ first determined that Plaintiff had not
performed any substantial gainful work since the alleged onset of
disability. (R. at 13.) Although Plaintiff had briefly
attempted to work on two separate occasions, the ALJ concluded
that these attempts were not indicative of substantial gainful
activity. (Id.) The ALJ found that Plaintiff had a back disorder

and a recurrent hernia that qualified as severe impairments under

21


showed marked disc degeneration at the L5-S1 level and mild disc
protrusion, and again in March 2002 that showed an annular rent
at the L3-L4 level and broad-based disc herniation at the L5-S1
level. (Id.) Plaintiff also argues that the ALJ disregarded
other significant information from the treatment records,
including records documenting the extent of his treatment, and
that the ALJ gave “short shrift” to the physical therapy and VA
treatment records as a whole - particularly to the portions that
tend to support Plaintiff’s claims of pain and functional
limitations. (Pl. Mem. at 10.) Lastly, Plaintiff argues that
the ALJ improperly disregarded Dr. Shah’s opinions discussing
Plaintiff’s ability to work. (Id.) Plaintiff contends that Dr.
Shah's opinion, or any other evidence from treating sources, can
not be disregarded by the ALJ without articulating any grounds
for doing so. (Id.)

Plaintiff correctly points out that the ALJ must consider
all relevant evidence and may not ignore evidence that supports
Plaintiff’s claim. See Zblewski v. Schweiker, 7132 F.2d 75, 79
(7th Cir., 1984); Whitney v. Schweiker, 695 F.2d 784, 788 (7th
Cir. 1982). Moreover, the ALJ may not select and discuss only
the evidence that favors his ultimate conclusion, but the
analysis should show that the ALJ considered all of the important
evidence. Id. The ALJ is not required to provide a written

evaluation of every piece of evidence in the record. Id. But,

27


Plaintiff’s nonexertional limitations, there would be a
significant number of jobs in the economy that Plaintiff could
perform. (Id.)

Standard of Review

The reviewing court must affirm the ALJ’s decision if the
ALJ’s factual findings are supported by substantial evidence and
the ALJ has made no errors of law. Clifford v. Apfel, 227 F.3d
863, 869 (7th Cir. 2000). Substantial evidence refers to “such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)). In its review of the ALJ’s decision, the
Court may not decide facts anew, reweigh the evidence, resolve
evidentiary conflicts, decide questions of credibility, or
substitute its judgment for that of the ALJ. Young v. Barnhart
362 F.3d 995, 1001 (7th Cir. 2004); Herron v. Shalala, 19 F.3d 329,
333 (7th Cir. 1994). This does not mean, however, that the Court
“simply rubber-stamp[s]” the ALJ’s decision, but it must
critically review the entire administrative record. Clifford, 227
F.3d at 869.

Not only must the ALJ's decision be based upon a
consideration of all relevant evidence, but the ALJ must
adequately articulate the grounds for his decision to show that
the ALJ considered all of the important evidence and to “enable

{the Court] to trace the path of [the ALJ’s] reasoning.” Scott v.

23


Cir. 2000). Pursuant to Social Security Ruling (SSR) 96-7p, the
ALJ must set forth specific reasons for a credibility finding,
supported by evidence in the record, and “must be sufficiently
specific to make clear to the individual and to any subsequent
reviewers the weight the adjudicator gave to the individuals’
statements and the reason for that weight.” Zurawski v. Halter
245 F.3d 881, 888 (7th Cir., 2001). A single, conclusory
statement about the claimant’s credibility such as “the
individual’s allegations have been considered” does not
sufficiently explain the ALJ’s decision. Id. It is also not
enough for the ALJ to simply recite the factors that are
described in the regulations for evaluating symptoms. Id.
Credibility determinations play a critical role in determining
the weight to give a claimant’s subjective complaints of pain.
In evaluating a claimant's subjective complaints of pain, the ALJ
must first determine whether the allegations of pain are
supported by objective medical evidence. Luna, 22 F.3d at 691;
20 C.F.R. §404.1529. While the ALJ may discount subjective
complaints of pain that are inconsistent with the evidence as a
whole, the ALJ may not disregard those complaints merely because
they are not fully supported by objective medical evidence.
Knight v. Chater, 55 F.3d 309, 314 (7th Cir., 1995). The absence

of objective medical evidence supporting an individual’s

36


anesthesiologist. (R. at 208, 242). Dr. Morales noted that Mr.
Hastings had a history of chronic back pain, with degenerative
disease, and had been treated with epidural steroid injections,
which reportedly had no effect on his symptoms. (R. at 208.)
Dr. Morales referred to an MRI, which showed mild degenerative
disc disease, and concluded that he “cannot explain the great
degree of pain that (Mr. Hastings] is complaining of.” (Id.)
Dr. Morales recommended adjusting Mr. Hastings’ medication.
(Id.) Dr. Morales also noted that Mr. Hastings had visited a
neurosurgeon at the VA hospital for a second opinion. (Id.)

H. Functional Capacity Evaluation

In September 2001, Mr. Hastings underwent a functional
capacity evaluation upon Dr. Rutkowski’s referral. (R. at 203.)
The test consisted of approximately four hours of standardized
testing and two and one-half hours of functional task
performance, which Mr. Hastings testified consisted of tests such
as climbing a flight of stairs, pushing a cart full of blocks,
walking on a beam, and screwing and unscrewing bolts into a
pallet. (R. at 203, 348, 351.)

The therapist observed that, during the exam, Mr. Hastings
was exerting moderate to maximum effort, and determined that Mr.
Hastings was functioning at a light-medium work level, with the
ability to lift a maximum of 35 pounds from the floor to his

shoulders. (R. at 203.) The therapist noted that the work level

18


provided with education to avoid reinjury to his back. (R. at
11li.) He was discharged from physical therapy on March 16, 2001,
and the evaluating therapist noted some progress in Mr. Hastings’
condition. (Id.) The therapist reported that Mr. Hastings’
complaints of lower back pain and radiating symptoms decreased
from constant to intermittent, and his subjective pain level
decreased from an eight to a one or two out of ten, with ten
indicating the highest level of pain. (Id.) The therapist
recommended that Mr. Hastings continue activities to increase
lower back mobility and that he avoid excessive straining to his
lower back. (Id.) Mr. Hastings told the evaluating therapist
that when he was “able to take it easy,” his pain was around a
three to four out of ten and that “the pain medication makes it
so I don’t feel it at all.” (Id.)
D. Physical Therapy at Provena St. Joseph Medical Center

Following the request of Dr. Lenard Rutkowski, a
neurosurgeon, Mr. Hastings underwent additional physical therapy
treatments from May to June 2001, and completed a total of
twenty-four therapy sessions, with minimal progress. (See R. at
181-197.)

In May 2001, Mr. Hastings completed twelve therapy sessions,
which consisted of a back rehabilitation program with dynamic
lumbar stabilization, stretching, and strengthening, as well as

gait training on a treadmill. (R. at 188.) The evaluating


examine what weight to give to the evidence from these treating
sources upon remand.
II. Past Relevant Work

Plaintiff next argues that the ALJ erred in determining that
Plaintiff can return to his past work as a bus or truck driver.
(Pl. Mem. at 11.) Plaintiff contends that the ALJ failed to
consider the specific functional demands associated with these
jobs, and failed to relate those functional demands to
Plaintiff's present capabilities. (Id.) Plaintiff argues that
the record demonstrates that he can not sit for prolonged periods
of time, and that he takes medication that causes drowsiness —
conditions that would preclude Plaintiff from engaging in work as
a driver. (Pl. Mem. at 11-2.)

In Strittmatter v. Schweiker, 729 F.2d 507, 509 (7th Cir.
1984), the Seventh Circuit held that an ALJ has to determine the
demands of the claimant’s past work, and then compare those
demands to the claimant’s existing physical abilities. Here, the
ALJ determined that Plaintiff is capable of sitting, with normal
work breaks, for about six hours in an eight-hour workday. (R.
at 14.) Thus, he logically concluded that the duties of
Plaintiff’s previous jobs are within his residual functional
capacity. Plaintiff also argues that the side effects of his
medications would preclude him from working as a driver. (Pl.

Mem. at 11-2.) However, the ALJ noted Plaintiff's inconsistent

33


the VA clinic from July 2001 until the time of the hearing (See
R. at 209-241, 321-24). The ALJ, however, only referred to
notations from treatment received in April and October 2002. (R.
at 13-4.) The ALJ observed that the October 2002 exam results
were noteworthy for findings of no atrophy and normal strength in
both legs, with some pain limitation of the right hip. (Id.}

The ALJ also noted that the April and October 2002 findings

refer to Plaintiff’s inconsistent use of pain medications. (R.
at 13.)

However, the ALJ did not discuss the evidence from the VA
clinic treatment records that support Plaintiff's claims of pain
and disability, including a diagnosis of degenerative disc
disease, objective findings of limited lumbar range of motion and
paraspinal muscle spasms, noted ineffectiveness of therapeutic
treatments to relieve pain, and Plaintiff’s persistent subjective
complaints of pain and functional limitations. (See e.g., R. at
210, 211, 232, 234, 251, 253, 261, 266, 270, 285, 291.)

The Court does not require the ALJ to discuss reasons for
rejecting each report from the VA clinic. However, the Court
does require the ALJ to explain, at a minimal level, his
reasoning for rejecting lines of evidence that support
Plaintiff’s claim. It is the ALJ’s role to weigh evidence and
decide which evidence is most persuasive, but the ALJ must

explain the reasoning behind the weight given to the evidence.

30


An MRI of his lumbar spine taken in December 1989 revealed a
herniated disc at the L3-L4 level. (R. at 174, 202.) Mr.
Hastings was treated with medication, physical therapy, anda
TENS unit, and his symptoms were reportedly resolved in 1992.
(R. at 174.) Mr. Hastings also had three hernia surgeries
between the ages of 6 to 36 years. (R. at 108, 164.)
A.Dr. Abbasi: Silver Cross Hospital

Mr. Hastings injured his back on December 29, 2000. He was
admitted to the Silver Cross Hospital emergency room on December
31, 2000. (See R. at 106-08; R. at 328.) Mr. Hastings
complained of pain in the area of his lower back, left hip, and
leg, and swelling to the hip area. He also complained that, when
he leaned forward, he experienced shooting pain. (R. at 106-08.)
The attending physician , Dr. Abbasi, diagnosed back pain and
prescribed Mr. Hastings Naprosyn, a pain medication, and
Flexeril, a muscle relaxant. (R. at 108.) Lumbar spine x-rays
were reported to be negative for fracture, but showed a mild
narrowing of the disc space at the L5-S1 level. (R. at 110.)

B.Dr. Shah

From January 2001 to March 2001, Mr. Hastings received
treatment from Dr. Yatin Shah, an internist. (See R. at 102, 162-
79, 244.) On January 10, 2001, Mr. Hastings told Dr. Shah that
he had a “dull, nagging pain which is continuous and getting

worse on prolonged standing and ambulation.” (R. at 174.) He


lower part of his back, which shoots through the side of his leg.
(R. at 330.) He testified that he can walk for ten to twenty
minutes, but that he has problems standing. (R. at 331). After
about twenty minutes, he can hardly stand, and when he tries to
sit down, he experiences severe pain. (Id.) He testified that
he can climb a flight of stairs or stoop down only if he is
holding onto something, and he can bend only to a certain point.
(Id.) He can also lift up to 25 to 30 pounds. (R. at 332.)

Overall, Mr. Hastings testified that his situation is
getting worse. (R. at 335.) He described how his pain is
“really pinching, real bad.” (Id.) Throughout the course of his
treatments, Mr. Hastings testified, the pain notably increased
and became sharper and more severe after using a TENS unit and
going through work hardening programs, where he had to
participate in upper and lower body-building exercises. (R. at
335, 348). Steroid injections to his lower back had virtually no
effect, and physical therapy helped very little. (R. at 328,
352-53.) Mr. Hastings testified that one of his treating
physicians, Dr. Rutkowski, concluded that Mr. Hastings was not a
candidate for surgery. (R. at 336.)

II. Medical History
Mr. Hastings’ medical history prior to his December 2000

injury shows a 1989 work-related injury to his back, and problems

with recurrent hernias on his right side. (R. at 108, 164, 174.)


was representative of performance in two-handed frequent lifting
only, and not in any other functional area. (Id.) The therapist
further noted that Mr. Hastings’ musculoskeletal status may
moderately “limit his ability to perform functional activities”
and recommended that the “positions of stooping and twisting
should be either decreased or eliminated in the interest of
proper body mechanics.” (Id.)

The results of the exam revealed several weaknesses in Mr.
Hastings’ musculoskeletal status and some functional limitations.
(R. at 204, 205.) Results indicated that Mr. Hastings had
decreased trunk flexion, weakness in his lower legs for hip
flexion and knee extension, and weak abdominal muscles. {R. at
204.) The therapist observed that Mr. Hastings had decreased
tolerances for sustained crouching, sustained standing, and
getting up from prolonged kneeling and balancing. Mr. Hastings
had to hold onto stationary objects to get up from lower level
positions. (Id.) The therapist observed that Mr. Hastings
walked at a fair pace that decreased over time; he could tolerate
a ‘“walk/climb circuit” of 21 minutes. (iId.) Mr. Hastings could
also climb 14 flights of stairs, with increased respiration after
four continuous flights. (Id.) Mr. Hastings could lift for a
maximum up to 35 pounds from floor to shoulder and 20 pounds over
his head, lifting with two hands. (Id.) But, he had increased

difficulty with lifting objects above his chest; he also had to

19


Dr. Shah reported that Mr. Hastings could do light duty work,
with the restrictions of lifting no more than 30 pounds, no
pushing or pulling, and minimum walking, sitting, bending, and
stooping. (R. at 169.) By the end of his treatment, Dr. Shah
indicated that Mr. Hastings was unable to work and referred him
to a work hardening program, which, Mr. Hastings later testified,
exacerbated his pain. (R. at 163, 165, 167, 348.)

C. Physical Therapy at Primary Care Joliet

In January 2001, Mr. Hastings completed his initial physical
therapy evaluation, and he complained of constant pain to the
lumbar region from the L1 to S1 level. (R. at 158.) He stated
that his pain was at its worst when he was sitting or standing in
one place for more than a couple of minutes. (Id.) He did not
complain of radiating pain in his legs. (R. at 159.) He also
indicated that he had trouble sleeping and finding a comfortable
position. (R. at 158.) The evaluating therapist observed the
presence of a moderate to severe paravertebral muscle spasm,
limited lumbar range of motion, and limited straight leg raising.
(R. at 159.)

Mr. Hastings underwent physical therapy from January to
March 2001 and completed twenty-five sessions of physical
therapy, which consisted of heat treatments, interferential
treatments, therapeutic exercises and therapeutic massages for

his lower back. (R. at 111; see R. at 111-61). He was also


the impairments listed in the Regulations as being so severe as
to preclude gainful activity; (4) is unable to perform his past
relevant work; and (5) is unable to perform other work in the
national economy in light of his age, education, and work
experience. Young, 362 F.3d at 1000; 20 C.F.R. § 404.1520.

A negative answer at any step other than step three stops
the inquiry and precludes a finding of disability. Orlando v.
Heckler, 776 F.2d 209, 212 (7th Cir. 1985). If the ALJ’s inquiry
leads to a negative answer at step three, then the ALJ must
consider an assessment of the claimant’s residual functional
capacity (RFC) in his determination at steps four and five. See
Young, 362 F.3d at 1000. A claimant’s RFC is an assessment of
the work-related tasks the claimant can perform despite his
limitations. Id.

An affirmative answer in the ALJ’s analysis leads to the
next step, except in the case of steps three and five, which
leads to a finding of disability. Orlando, 776 F.2d at 212. If
the ALJ can make a conclusive finding that the claimant either is
or is not disabled at any step, then the ALJ does not need to
progress to the next step. Young, 362 F.3d at 1000. The
claimant bears the burden of proof at steps one through four.
Id. The burden shifts to the ALJ at step five to show that the
claimant has the ability to engage in other work existing in

significant numbers in the national economy. Id.

25


in
United States District Court Ae

Northern District of Illinois
Eastern Division

JAMES HASTINGS,
Plaintiff No. 04 C 6484
ve.

JO ANNE BARNHART,
COMMISSIONER OF SOCIAL
SECURITY,

Magistrate Judge Arlander Keys

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff, James C. Hastings, moves this Court for summary
judgment pursuant to Rule 56(a) of the Federal Rules of Civil
Procedure to reverse the final decision of the Commissioner of
Social Security, denying his claim for Disability Insurance
Benefits (DIB) and Supplemental Security Income (SSI). In the
alternative, Plaintiff asks this Court to remand the decision for
further proceedings. The Commissioner has filed a cross-motion
for summary judgment. For the reasons set forth below, the Court
grants Plaintiff’s motion and remands the case to the
Commissioner for further proceedings.

Procedural History

On August 24, 2001, Plaintiff filed an application for DIB
and SSI, alleging that he became disabled on December 29, 2000,
due to a lower back injury. (See R. at 49-51, 302-04.) The
Social Security Administration (SSA) denied Plaintiff’s claims
and Request for Reconsideration, determining that Plaintiff still

had the ability to do light work. (30, 34, 37, 40, 306, 310,


favor of other reports, or that he even examined the evidence,
unless the ALJ explains his reasoning for rejecting this
evidence.

The Court recognizes that it is possible that the ALJ will
reach the same conclusion on remand, after discussion of the
relevant evidence. But, case law requires that the ALJ give
credence to relevant evidence that counters the ALJ’s position
and articulate, however minimally, the reasons for rejecting such
evidence. Stephens, 766 F.2d at 288. The purpose of these rules
is to ensure that the ALJ has, in fact, considered all of the
relevant evidence and made the required determinations so as to
facilitate meaningful appellate review. Orlando, 776 F.2d at 213.

Accordingly, the Court must grant Mr. Hastings’ motion for
summary judgment, and deny the Commissioner’s motion for summary
judgment. The case is remanded to the Commissioner for further

proceedings not inconsistent with this Opinion and Order.

DATED: September 16, 2005 ENTERED:

Qh Qouss—kay s

Arlander Keys ,
United States Magistrate Judge

48


E. Dr. Rutkowski

Mr. Hastings went to Dr. Rutkowski for further treatment.
(See R. at 181-201, 243.) In a July 18, 2001 spinal disorder
report, Dr. Rutkowski diagnosed Mr. Hastings with lower back pain
and degenerative disc disease. (R. at 200.) Dr. Rutkowski
observed unassisted ambulation, no atrophy, normal straight leg
raising, and normal extension, but rather limited flexion of the
lumbosacral spine. (R. at 200-01). The report also indicated
that Mr. Hastings had a paravertebral muscle spasm. (R. at 201).
Dr. Rutkowski noted that Mr. Hastings was not a candidate for
surgery. (Id.)

Mr. Hastings testified that Dr. Rutkowski had told him that
surgery would not help, but would only cause “more trouble, more
pain.” (R. at 336.) Mr. Hastings also testified that Dr.
Rutkowski indicated that he could no longer do any work as a
laborer because “it’s just only going to get worse.” (Id.) Mr.
Hastings testified that he stopped seeing Dr. Rutkowski after the
doctor informed him that there was nothing more that he could do
for him. (R. at 335-36).

F.VA Clinic

Mr. Hastings also received ongoing treatment from the VA
clinic, starting from July 2001 through November 2002. (See R.
at 208, 219, 323, 354). At the time of the hearing, Mr. Hastings

testified that he had also visited the VA clinic once in March

12


therapist reported that Mr. Hastings was still experiencing
radiating pain from his lower back into his right buttocks.

(Id.) He observed limited lumbar range of motion, with a
decrease in flexion by 20% and a decrease in his right and left
side-bending motion by 25%; the therapist observed normal
extension. (Id.) He also observed 4/5 muscle strength in both
of Mr. Hastings’ legs. (Id). The therapist indicated that Mr.
Hastings had made minimal progress and questioned the efficacy of
therapy. (Id.) Mr. Hastings reported that he was periodically
sore following physical therapy treatment, and the therapist
observed that Mr. Hastings was still walking with a painful gait
following therapy. (Id.)

In June 2001, Mr. Hastings completed twelve additional
treatments, which consisted of strengthening and stretching
exercises for his trunk and lower extremities and endurance
enhancing exercises. (R. at 181.) Mr. Hastings complained of
lower back pain and reported that he had been using a TENS unit,
which increased his pain. (Id.) The therapist noted that Mr.
Hastings’ progress did not seem to be improving at any
significant rate. (Id.) Mr. Hastings stated that he intended to
attend a pain clinic and was unsure as to whether he would be

continuing with physical therapy. (Id.)


or ‘unable to work.’” Id. Such determinations are reserved for
the Commissioner and are not given any special significance. See
20 C.F.R. § 404.1527 (e).

The Seventh Circuit has held that the reports of a treating
physician should be favored over a consultant who merely reviews
the file and does not examine the claimant, unless the treating
physician is not credible. Whitney, 695 F.2d at 789. But the
Seventh Circuit has recognized that a consulting physician’s
assessment may constitute substantial evidence as long as the
consulting physician “adds new information or perspectives” and
is not “just contradicting reports about the underlying facts or
offering unfounded speculation.” Garrison v. Heckler, 765 F.2d
710, 713 (7th Cir. 1985).

In cases where medical evaluations are primarily based on
objective evidence, the ALJ does not have to give preference to
treating physicians over non-examining physicians. See Id. at
714. But, when the “ability to observe the claimant over an
extended period is essential to an accurate understanding,” there
is a preference for the views of the treating physicians over
non-examining physicians. Id. at 71s.

Here, the SSA physicians did not examine Plaintiff to render
their report, but relied on medical evidence in the record. (See
R. at 28-9, 30, 34, 37, 40.) However, their opinions have

significant value, even when compared to the opinions of the

44


also include objective medical findings of a paravertebral muscle
spasm and limited lumbar flexion and diagnoses of a lumbosacral
strain, inguinal hernia on the right side, and a herniated disc
in the lumbar-spine area. (R. at 175.) Even though the
Commissioner may point to various reasons to support the ALJ’s
decision to give little weight to Dr. Shah’s opinion, the Court’s
review is confined to the ALJ’s analysis. Steele, 290 F.3d at
941. The ALJ should examine what weight, if any, to give to Dr.
Shah's findings on remand. See 20 C.F.R. §404.1527(d) (2) (“We
will always give good reasons ... for the weight we give your
treating source’s opinion.”). The ALJ also should address the
medical findings of Plaintiff’s other treating physician, Dr.
Rutkowski.

The Commissioner argues that the ALJ’s summary of
Plaintiff’s testimony constitutes consideration of the extent of
Plaintiff’s treatment and the opinions of treating physicians.
(See Def. Mem. at 10-1.) But the Court does not agree that
merely describing Plaintiff’s testimony permits informed judicial
review. Because the ALJ’s decision does not even mention or
discuss evidence from the treating sources that support
Plaintiff’s claim, the Court is unable to track the ALJ's
reasoning and is not assured that the ALJ did, in fact, consider

all the relevant evidence in his analysis. The ALJ should

32


Farrell v. Sullivan, 878 F.2d 985, 989 (7th Cir., 1989). The ALJ
is not permitted to pick and choose among the evidence and ignore
evidence supporting Plaintiff's claims. See Herron, 19 F.3d at
333.

Plaintiff also argues that the ALJ disregarded Dr. Shah's
opinion as to Plaintiff’s ability to work. (Pl. Mem, at 10.)

The Commissioner argues that Dr. Shah’s opinion is not entitled
to any special significance, because it is an opinion on an issue
reserved for the Commissioner. (Def. Mem. at 11.) But,
Plaintiff is not arguing that the ALJ improperly weighed Dr.
Shah’s opinion, rather, Plaintiff is arguing that Dr. Shah's
opinion was improperly ignored without articulating any reasons
for doing so. (Pl Mem. at 10.)

Here, the ALJ did not address Dr. Shah’s findings nor
articulate any reasons for discounting the treating physician’s
evidence. Compare Edwards v. Sullivan, 985 F.2d 334, 337 (7th
Cir. 1993) (ALJ provided grounds for rejecting treating
physician’s opinion and Court held ALJ properly discounted
treating physician’s opinion because of lack of medical
evidentiary support) and Clifford, 227 F.3d at 870 (Court held
that ALJ improperly evaluated the evidence because ALJ failed to
explain treating physicians’ opinions were necessarily
inconsistent with other medical evidence in the record). Dr.

Shah's medical findings not only include work status reports, but

3


reported that he had difficulty with his daily activities and
sleeping at night. (Id.) Mr. Hastings did not report any
radiation of pain, numbness, or weakness of his lower
extremities. (Id.) Mr. Hastings also indicated that he had taken
some medication, which did not relieve his pain. (Id.) Dr. Shah
examined Mr. Hastings and observed a paravertebral muscle spasm
in the lumbar-sacral spine area, with limitation of flexion. (R.
at 175.) He also observed normal range of motion and strength in
both of his legs, along with normal gait. (Id.) Dr. Shah
diagnosed lumbosacral strain, a herniated disc on the lumbar
spine area, and a hernia on the right side of the groin. Dr.
Shah prescribed Naprosyn and Robaxin. (Id.)

Dr. Shah ordered an MRI of Mr. Hastings’ lumbar spine, taken
on January 11, 2001, which showed that there was marked
degeneration of the right side of the disc and mild diffuse
protrusion of the disc at the L5-S1 level. (R. at 173). Results
also showed that a mild right neuroforaminal stenosis had
developed from the combination of the disc degeneration and
protrusion. (Id.)

Dr. Shah concluded in an initial work status report dated
January 10, 2001 that Mr. Hastings was unable to work. (R. at
176.) On Mr. Hastings’ follow-up visit on January 19, 2001, Dr.
Shah prescribed continued use of medication in addition to

physical therapy treatments. (R. at 171.) By February 19, 2001,


Social Security Regulations, but he found that Plaintiff’s
allegations of pain, symptoms, and disabling limitations were not
credible. {Id.) The ALJ's credibility finding was based on the
results of an October 2002 medical examination that showed no
atrophy and normal strength in both legs, with some pain
limitations in the right hip; Plaintiff’s inconsistent use of
prescribed medications; and his activities, that included looking
for other work. (R. at 13.)

The ALJ determined that Plaintiff had a RFC for a restricted
range of light work. (R. at 14-5.) The ALJ found that Plaintiff
had the RFC to engage in work that required lifting up to 20
pounds occasionally and 10 pounds frequently, as well as sitting,
standing, and/or walking, with normal work breaks for six hours
in an eight-hour workday, with the limitations of no more than
occasional climbing, balancing, stooping, kneeling, crouching,
and crawling. (Id.)

Given Plaintiff's RFC, the ALJ concluded that Plaintiff
could engage in his past relevant work as a bus driver, which is
performed at the sedentary level. (Id.) Further, the ALJ noted
that, according to the Regulations, the functional capacity to
perform light work indicates the functional capacity to perform
sedentary work. (R. at 14.) The ALJ found that an extensive
occupational base of jobs involving sedentary and light unskilled

work existed in the national economy. (Id.) Even given

22


The Court, however, does not agree that the ALJ disregarded
Plaintiff’s MRI results - objective documentation of a condition
likely to cause Plaintiff pain. As previously discussed, the
ALJ's decision does demonstrate that he considered Plaintiff’s
MRI results.

Lastly, the Court agrees with Plaintiff that the ALJ did not
address Plaintiff’s reports of functional limitations regarding
sitting, standing, or walking for prolonged periods as a result
of pain. Plaintiff consistently and repeatedly complained to
treating sources that his pain was exacerbated by sitting for
prolonged periods of time. (R. at 158, 210, 256). The medical
record also includes Plaintiff’s reports of inability to
stand/walk for extended periods of time. (R. at 158.) One of
the factors to be considered by the ALJ in his credibility
determination is Plaintiff's reports of functional limitations
and restrictions. Knight, 55 F.3d at 314.

The Court finds that the ALJ’s decision needs further
discussion as to the ALJ’s reasons for discounting objective
evidence in the record that supports Plaintiff's complaints of
pain, the side effects of his medication, and the inconsistencies
regarding Plaintiff’s daily activities and complaints of pain.

Plaintiff also argues that the factors the ALJ did rely on
in his credibility determination can not properly be considered

in isolation and need to be considered in light of ali the

39


relevant evidence. (Pl. Mem. at 14.) The ALJ relied on the
October 2002 VA exam results that show normal findings,
Plaintiff’s inconsistent use of prescribed medication, and
Plaintiff's daily activities, including looking for work. (R. at
14.) But the ALJ does not provide any discussion, even ata
minimal level, of evidence in the record showing that Plaintiff’s
treating physicians diagnosed and treated Plaintiff for pain in
his lower back.

In January 2001, Plaintiff saw Dr. Shah, complaining of a
dull, nagging pain that got worse on prolonged standing and
ambulation. (R. at 175.) Dr. Shah diagnosed Plaintiff with a
lumbosacral strain, a right-sided hernia, and a herniated disc on
the lumbo-sacral spine area, and he prescribed Naprosyn and
Robaxin. (Id.) In July 2001, Dr. Rutkowski observed pain in
Plaintiff's lower back and buttocks and limited lumbar flexion.
(R. at 200-01). Dr. Rutkowski diagnosed Plaintiff with
degenerative disc disease. (Id.) The Court is unable to tell
whether the ALJ examined the full range of the medical evidence
and investigated medical findings that support Plaintiff’s
complaints of pain.

The Court also agrees that the ALJ failed to address
Plaintiff's side effects of medication, as instructed by the
Regulations. See 20 C.F.R. §404.1529(c) (3). Medical evidence in

the record did indicate that Plaintiff experienced side effects

40


the Seventh Circuit requires a “minimal level of articulation of
the ALJ’s assessment of the evidence . . . in cases in which
considerable evidence is presented to counter the agency’s
position.” Zblewski, 732 F.2d at 79. The ALJ is also required to
articulate the grounds for rejecting entire lines of evidence.
Herron, 19 F.3d at 333.

In the instant case, the ALJ failed to fulfill his duty in
this regard. With the exception of Plaintiff’s MRI results, the
ALJ failed to address competing lines of evidence that lends
support to Plaintiff’s claim.

Initially, the Court rejects Plaintiff’s claim that the ALJ
improperly disregarded the favorable findings revealed in his MRI
results. The ALJ did discuss Plaintiff’s MRI results, albiet
briefly. However, the Seventh Circuit does not require a more
extensive or detailed discussion. The Seventh Circuit has
interpreted the requirement of a “minimal level of articulation”
as “enough to show that the ALJ considered the evidence the law
requires him to consider.” Stephens v. Heckler, 766 F.2d 284,
287 (7th Cir. 1985). Here, the ALJ did not treat the results as
being generally unremarkable, but rather, the ALJ noted that the
results showed “significant back pathology.” (R. at 13.)
Further, the ALJ discussed the reasons for not giving greater
weight to the MRI results, pointing to the results of the October

2002 examination conducted at the VA clinic, Plaintiff’s

28


home and soaked in hot water. (R. at 328.) He did not believe
that he could make it without treatment, and went to the
emergency room at Silver Cross Hospital two days later, where he
was told that he had torn ligaments. (R. at 328.)

Mr. Hastings testified that he had another work-related
injury prior to this injury, which occurred while he was working
as a bus driver. (R. at 329.) A vehicle collided with his bus,
and he ended up with a herniated disc and whiplash. (Id.). Mr.
Hastings also testified to having other health problems. (R. at
330, 332, 345.) He was having liver problems, because of some of
the medication that he was taking. (R. at 330, 345.) In
addition, Mr. Hastings reported having recurrent hernias; at the
time of the hearing, he was experiencing a mild hernia on his
left side, which would require surgery. (R. at 332.)

Mr. Hastings testified that he takes Naprosyn, a painkiller,
and an unidentified muscle relaxant, but he tries to limit his
intake, because they cause drowsiness and because he fears
addiction. (R. at 325, 341, 345.) He testified that he cannot
take the medication when he has to drive. On the days he has to
travel, he will take the medication at night, otherwise he will
take it in the morning. {(R. at 325, 342.) He also testified
that the medicine does not reduce the pain as much as he thought
it would. (R. at 342.) Mr. Hastings’ attorney added that Mr.

Hastings had been prescribed several other kinds of medications


SSA, when they opined that Plaintiff was capable of performing at
the light-medium work level.

Although the Court agrees with the Commissioner that the
opinions of the SSA physicians do not have limited value in this
case, the Court directs that the ALJ further articulate his
reasoning behind the RFC finding, explaining the preference he
gave to non-examining physicians over treating physicians in this
case. It is the ALJ’s role to decide the weight given to
different physicians’ opinions in a disability case. See
Stephens, 766 F.2d at 289. The ALJ must articulate his
discussion in such a way as to enable the Court to trace the path
of his reasoning. Scott v. Barnhart, 297 F.3d 583, 595 (7th Cir.
2002).

Conclusion

For the reasons set forth above, the Court finds that the
ALJ's written decision does not indicate that the ALJ conducted a
complete review of the evidence and that substantial evidence
supports the ALJ's decision. The ALJ's decision primarily falls
short because of his failure to address relevant competing
evidence from treating sources. The failure to address this
evidence, consequently, may impact the ALJ’s determinations
regarding Plaintiff’s ability to do his past work, ability to do
light work, and Plaintiff’s credibility. Further, the Court can

not evaluate whether the ALJ properly rejected the evidence in

47


treating physicians in this case. The SSA physicians “add new
information,” as none of the treating physicians, with the
exception of Dr. Shah, made any statements regarding Plaintiff's
exertional limitations.® (Compare R. at 163, 167, 169-71, 176
with R. at 200-01, 209-41, 245-301.)

Plaintiff argues that, because this is a chronic pain case,
a longitudinal view of Plaintiff and his functional capabilities
is important, implying that the treating physicians’ opinions
should take preference over the non-examining physicians’
opinions. (See Pl. Reply at 9, n. 3) In addition, there is
question as to whether the SSA physicians actually reviewed the
Functional Capacity Evaluation Report in their assessment. But
the Commissioner argues that the opinions of the SSA physicians
were supported by quantifiable objective testing - the functional
capacity evaluation (FCE) report. (Def. Mem. at 14.)

Regardless, the ALJ did not solely rely on the opinion of
the SSA physicians, but also relied on the evidence from the FCE

report as substantial evidence for his decision.’ (R. at 14.)

ee

* Dr. Shah completed six work status reports from January 2001 to
March 2001. In his first two reports, he concluded that
Plaintiff was unable to work. In his third and fourth reports,
Dr. Shah determined that Plaintiff was capable of light work with
restrictions of no pushing/pulling or heavy lifting and minimum
sitting, standing/walking, and stooping/bending. Dr. Shah
indicates in his last two reports that Plaintiff is unable to
work until completing a work hardening program.

7 The FCE was conducted in September 2001, before the RFC
assessment in October 2001. (R. at 203, 227.) But, Plaintiff
points out that the RFC assessment form indicates that there were

4S


toes, some tenderness in his lumbar spine, and 5/5 muscle
strength in his legs, with some pain limitations in his right hip
flexors. (R. at 252, 257.)

Mr. Hastings was diagnosed with chronic pain syndrome, and
the physician noted decreased strength, decreased endurance,
sleep disturbance, inability to manage stress, impaired coping
strategies, impaired self-care skills, impaired mobility along
with medication management issues. (R. at 253, 258.) The
evaluating physician recommended that Mr. Hastings participate in
a pain rehabilitation and education program (PREP) for six weeks,
which consisted of education on coping strategies, relaxation
techniques, the pathophysiology of pain and the pain cycle to
treat his chronic lower back pain. (Id.)

Prior to participation in PREP, Mr. Hastings underwent an
initial evaluation by a clinical pharmacist from the pain clinic.
(R. at 282-83). The pharmacist noted that Mr. Hastings’ pain was
“not controlled due to not taking medications.” Mr. Hastings
reported that he did not take his medications to avoid building a
tolerance for it. (R. at 283.) He also reported that he took
his medications as needed and only took two tablets of aspirin
daily. (Id.) Mr. Hastings was educated on the necessity of
taking his medications as prescribed, and consequently, he stated
that he was willing to try prescribed medications to reduce the

pain. (Id.)


program. (Id.) They advised Mr. Hastings to avoid strenuous
activities. (Id.).

Results from a physical examination showed no atrophy,
normal but slow and antalgic gait, mild tenderness and tightness
in his lumbosacral paraspinal muscles, and 5/5 muscle strength in
both legs, with some pain limitations in his hip flexors. (R. at
268.) An evaluating physical therapist noted that Mr. Hastings
underwent numerous therapies, including TENS trial and a home
exercise program, which worsened his condition. (R. at 270.)

The therapist determined that Mr. Hastings was not likely to
benefit from physical therapy. (Id.)

Mr. Hastings had expressed increasing financial concerns and
difficulties in September 2002, and indicated that he was
interested in being evaluated for work training. (R. at 280).
Mr. Hastings was no longer collecting unemployment compensation,
and was receiving some financial assistance through the Veterans
Assistance Commission. (R. at 247, 280.) He met with a social
worker in November 2002, who discussed the possibility of
pursuing vocational options other than manual labor. (R. at 247.)
The social worker recommended that Mr. Hastings obtain a GED.
(Id.).

G. Dr. Morales
In November 2001, Dr. Rutkowski referred Mr. Hastings to Dr.

Mauricio Morales, a pain management specialist and

17


he had trouble staying in class the entire time, due to pain, and
he typically left after one hour. (R. at 324, 336.) He also
had problems concentrating on and finishing his homework
assignments due to his pain. (R. at 346.)

Mr. Hastings explained that he worked various jobs prior to
his injury, including work as a bus driver, janitor, and laborer.
(R. at 329.) His last employer was Cresthill Development Corp.,
a construction company, where he worked for about eighteen
months, doing work that usually involved heavy lifting. (R. at
327.) Following his injury, Mr. Hastings attempted to work on
two separate occasions. (R. at 326.) He returned to work with
Cresthill Development Corp., performing light duty work, such as
vacuuming drywall and other debris, but he had to stop working
after about three hours due to pain. (Id.). He also attempted
to work for his brother cleaning shovels and sweeping, but could
only work for four or five hours. (Id.) He testified that, the
following day, he experienced “real bad pain” and had
difficulties standing. (Id.) Since then, Mr. Hastings submitted
applications to various employers, but has not been able to
secure employment. (Id.).

Mr. Hastings testified that the date of his alleged onset of
disability was December 29, 2000 - the date that he injured his
back while carrying a load of heavy plywood beams at Cresthill.

(R. at 327-28, 355.) Following the injury, Mr. Hastings went


of medication by the doctors necessarily lends support to the
credibility of Plaintiff’s complaints of disabling pain.
Plaintiff argues that his credibility is supported by the
doctor’s willingness to adjust his medications, but this factor
is not outlined in the Regulations as one of the factors to be
contemplated by the ALJ in his analysis. See 20 C.F.R.
§404.1529(c) (3). Rather, the ALJ is required to consider the
side effects of medication. See Id.

Second, the Court agrees that the ALJ improperly disregarded
the extent of treatment Plaintiff underwent to control and manage
his pain. One of the factors to be considered by the ALJ in his
credibility determination is treatment the Plaintiff receives for
relief of pain other than medication. Knight, 55 F.3d at 314.
The medical record does reveal that Plaintiff has undergone
various conservative therapy methods, including: physical
therapy, participation in a pain clinic, epidural steroid
injections, a TENS unit, work hardening programs, and a home
exercise program. (See e.g., R. at 111-61, 181-97, 208, 254-55,
260, 266-79.) Most of these measures proved to be ineffective in
relieving Plaintiff’s pain. (See R. at 181, 188, 208, 254-55.)
However, the ALJ failed to address any of this evidence.
Therefore, the Court cannot determine whether the ALJ considered

this evidence in forming his credibility determination.

38


Discussion

Plaintiff argues that the ALJ’s decision is not supported by
substantial evidence and must be reversed due to several
procedural errors. (Pl. Mem. at 8-9.) First, Plaintiff argues
that the ALJ disregarded significant portions of the record,
particularly treatment evidence, and relied only on evidence that
favored his ultimate conclusion. (Pl. Mem. at 9.) Next,
Plaintiff argues that the ALJ’s conclusion that he can return to
past relevant work is neither supported by substantial evidence
nor properly explained in the decision. (Pl. Mem. at 11.)
Plaintiff also argues that the ALJ erred in concluding that his
testimony was incredible, and, consequently, failed to consider
the impact of pain, the side effects of medication, and postural
limitations on his ability to work. (Pl. Mem. at 12.) Lastly,
Plaintiff argues that the ALJ erred in concluding that he was
capable of light work. (Pl. Mem. at 14.) The Court will consider
each argument in turn.

I. Treatment Evidence

Plaintiff principally argues that the ALJ failed to consider
all of the evidence in the record, particularly treatment records
that did not support the ALJ’s ultimate conclusion, and that the
ALJ failed to articulate a reason for disregarding the evidence.
(Pl. Mem. at 9-10.) Plaintiff first contends that the ALJ

“parely mention[ed]” results from MRIs taken in January 2001 that

26


312, 315). The SSA concluded that his condition prevented him
from doing past jobs but did not preclude him from engaging in
other types of less demanding work. (R. at 34, 40, 310, 315.)
Plaintiff requested a hearing before an administrative law judge
(ALJ). On April 16, 2003, ALJ John L. Mondi presided over
Plaintiff’s hearing, where Plaintiff, represented by counsel,
testified. (R. at 41, 320.) The ALJ issued his decision on June
16, 2003 and denied Plaintiff's claim for benefits. (R. at 15.)
He concluded that Plaintiff was not disabled, because he could
perform his past relevant work as a driver. (R. at 14-15.)
Plaintiff filed a request for review with the Social Security
Appeals Council, which was subsequently denied. (R. at 5, 18-
20.) Upon denial of his appeal, the Plaintiff filed the present
action for judicial review.
Factual Background
I. Testimony at the April 16, 2002 Hearing

Mr. Hastings testified that he was born on March 31, 1959,
and was 44 years old at the time of the hearing. (R. at 324.)
He was divorced and had three children: one son, age 23, from his
first marriage, and two daughters, ages 4 and 11, froma
relationship with a girlfriend. (Id.)

Mr. Hastings testified that he had completed the eleventh
grade and was trying to obtain a GED. (R. at 324, 338-39.) The

class met twice a week for two hours and forty-five minutes, but


use of medicine as a reason for discounting Plaintiff's
credibility. (R. at 13.)
Given the ALJ’s RFC finding, the Court would agree that the

ALJ's conclusion that Plaintiff could return to his past work was
reasonable.’ Plaintiff argues he is unable to sit for prolonged
periods of time, but that is not what the ALJ found differently.

(Pl. Mem. at 11; see R. at 13-4.) Further, Plaintiff only makes
a general statement regarding Plaintiff's ability to sit for
prolonged periods, and does not point to any specific evidence in
the record to support his argument. (See Pl. Mem. at 11.) While
the ALJ did not specifically describe the functional demands
associated with a job as a truck or bus driver, and explain how
Plaintiff is capable of meeting those demands, the Court does not
believe that the ALJ needs to provide a more detailed explanation
in order to build a logical bridge between the evidence and the

result.

? Plaintiff also argues that the job of a truck or bus driver is
not a sedentary job, but rather, implies that these jobs
constitute light work. (See Pl. Mem. at 12, n.1.) Even if these
jobs fall within the category of light work, the ALJ can still
logically conclude that Plaintiff can return to past relevant
work, given the ALJ’s RFC finding that Plaintiff is capable of a
restricted range of light work. Whether the ALJ's RFC is still
supported by substantial evidence once the ALJ reconsiders
Plaintiff's claim in light of overlooked evidence is another
matter.

>The Court agrees with the Commissioner that the Plaintiff is,
in essence, questioning the ALJ’s RFC finding. The Court will
wait to address this argument until its discussion of the ALJ’s
determination of Plaintiff's ability to do light work, where
Plaintiff questions more directly the ALJ's RFC finding.

34


limitations observed by the functional capacity evaluation
personnel, he does not have the functional capabilities to do
light work.® (Pl. Memo at 14-5.) Plaintiff points to the ALJ's
reliance on the opinions of the SSA physicians in reaching his
RFC finding and argues that, while the opinions of non-examining
medical sources are to be considered, their opinions have limited
value, especially when considering matters that can not be
quantified by objective testing. (Id.) He further argues that
the opinions of the SSA physicians are not supported by the
record as a whole, and not based on all of the treatment
evidence. (Id.)

A treating physician’s opinion is entitled to controlling
weight if it is well supported by medical evidence and not
inconsistent with other substantial evidence in the record.
Clifford, 227 F.3d at 870. An ALJ can deny controlling weight to
a physician’s opinion if it has internal inconsistencies. Id.
However, a Claimant is “not entitled to disability benefits

simply because 4 physician finds that the claimant is ‘disabled’

ee

’ Light work requires the ability to lift no more than 20 pounds
at one time and the ability to lift up to 10 pounds frequently.
20 C.F.R. §8404.1567(b), 416.967(b). In addition, a full range
of light work requires standing or walking, off and on, for a
total of six hours out of an eight-hour workday. SSR 83-10.
Claimant should have the ability to walk or stand for “extended
periods.” Allen v. Sullivan, 977 F.2d 385, 390 (7th Cir., 1992).
Occasional stooping/bending is also required as well. SSR 83-14.
When sitting is required, light work “involves sitting most of
the time with some pushing and pulling of arm or leg controls.”
20 C.F.R. §404.1567(b).

43


inconsistent use of prescribed medications, and his daily
activities, including looking for work. (Id.) The Court does
not believe that the ALJ’s limited description of the MRI results
constitutes an error requiring remand.

The Court, however, agrees with Plaintiff that the ALJ
failed to address relevant treatment records documenting the
extent of treatment undertaken by Plaintiff to relieve pain. In
particular, the ALJ did not address the results from Mr.
Hastings’ extensive physical therapy treatments undertaken from
January to March 2001, and again in May to June 2001, per the
recommendation of his treating physicians, Drs. Shah and
Rutkowski. (R. at 111, 181, 188.) Mr. Hastings underwent a
total of 49 sessions, and the ALJ does not discuss the therapy
results and the observations of the evaluating therapists, which
documented various abnormalities, like paravertebral muscle
spasms and limited lumbar range of motion, along with his
complaints of pain and functional limitations. (R. at 111, 158-
60, 181, 183, 188, 192-97.)

Similarly, the Court agrees with Plaintiff that the ALJ
provided an incomplete discussion of his treatment undertaken at

the Edward Hines VA clinic. Mr. Hastings underwent treatment at

‘Although March 2001 physical therapy reports indicate that
Plaintiff's condition improved with physical therapy, subsequent
physical therapy reports from May to June 2001 note Plaintiff’s
minimal progress after treatment. (R. at 111, 181, 188.)

29


2003, and was scheduled to receive a steroid injection in May
2003. (See R. at 323, 354).

In November 2001, Mr. Hastings complained of sharp back
pain, which was made worse by lifting, and was relieved by lying
on his back. (R. at 216, 292.) Mr. Hastings similarly
complained in December 2001 of lower back pain, which continually
radiated down his right leg. (R. at 210, 263.) He reported that
his pain was made worse by sneezing, bending, and sitting for
prolonged periods, and was relieved by lying on his back. {Id.)
He was diagnosed with chronic lower back pain, with right
radiculopathy, right sacrioiliac joint arthropathy, and post
inguinal herniorrhaphy pain. (R. at 211, 264). Mr. Hastings was
prescribed pain medication. (Id.)

In February 2002, Mr. Hastings complained of severe pain to
his back, with weakness and limited range of motion to his back
and lower extremities. (R. at 232, 284.) His physical
examination revealed that he had 4/5 muscle strength in his legs
and a limited range of motion to his lower back and lower
extremities. (R. at 234, 285.) He was diagnosed with
degenerative disc disease. (Id.)

On February 11, 2002, Mr. Hastings complained of lower back
pain, radiating into his right calf, and he complained that his
pain was worse than it was at his last MRI in January 2001. (R.

at 235, 287.) The treating physician ordered another MRI of his

13


Mr. Hastings began attending PREP in October 2002, and
completed the program in November 2002. (See R. at 266-79; R. at
354-55.) Treating professionals noted that Mr. Hastings had made
a good effort to attend sessions at the pain clinic over the
course of the program. (R. at 266.)

In October 2002, PREP evaluations indicated that Mr.
Hastings reported that he discontinued use of some medications,
because it caused grogginess, and that he did not take his
medications consistently. (R. at 275, 277.) Treatment records
showed that Mr. Hastings had no muscle atrophy and a normal gait,
but that he was unable to walk on his heels and toes. Mr.
Hastings had 5/5 muscle strength in his legs, with some pain
limitations in his hip flexors. (Id.)

In November 2002, Mr. Hastings’ diagnosis of pain syndrome
was confirmed. (R. at 266.) PREP reports also indicated that Mr.
Hastings was doing his own repair work at home and tended to
overdo activity, as a result of limited social supports and
financial resources. (R. at 270, 273.) Treating professionals
noted that Mr. Hastings was still with pain, and that he took
pain medication when the pain was severe, which was effective.
(R. at 267). The treating professionals noted that Mr. Hastings
continued to tolerate the PREP program and that he reported that

his pain was five to six out of ten most days throughout the

16