UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LAURA P.,

Plaintiff,

v.

KILILO KIJAKAZI, Commissioner of the 

Social Security Administration,

Defendant.

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No. 20-cv-4751

Magistrate Judge Susan E. Cox

MEMORANDUM OPINION AND ORDER

Plaintiff Laura P.

1 (“Plaintiff”) appeals the decision of the Commissioner of the Social 

Security Administration (“Commissioner”) denying her application for disability insurance benefits 

(“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act. The Parties have 

filed cross motions for summary judgment.

2 For the reasons detailed below, the Commissioner’s 

Motion for Summary Judgment (dkt. 21) is denied and Plaintiff’s motion (dkt. 15) is granted. The 

case is remanded for further proceedings consistent with this opinion.

I. Background

A. Procedural History

On July 5, 2017, Plaintiff filed claims for DIB and on July 25, 2017, she filed for SSI; both 

applications alleged an onset date of April 1, 2017. (R. 22.) Those claims were denied initially and 

upon reconsideration, after which Plaintiff timely requested a hearing before an Administrative Law 

Judge (“ALJ”). (Id.) The hearing was held on February 11, 2019. (Id.) On July 25, 2019, ALJ Gregory 

Smith denied Plaintiff’s claim, finding her not disabled under the Act and therefore ineligible for 

1 In accordance with Northern District of Illinois Internal Operating Procedure 22, the Court refers to Plaintiff only by 

her first name and the first initial of her last name(s).

2 Plaintiff filed a Memorandum in Support of Motion for Summary Judgment [15] and the Commissioner filed a Response 

[21], both of which the Court construes as motions for summary judgment. 

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benefits. (R. 22-31.) The Appeals Council denied Plaintiff’s request for review on July 7, 2020,

(R. 1-4), leaving the ALJ’s decision as the final decision of the Commissioner, reviewable by the 

District Court under 42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).

Plaintiff appealed that decision to the United States District Court for the Northern District of Illinois 

on August 13, 2020. (Dkt. 1.)

The ALJ’s decision followed the five-step analytical process required by 20 C.F.R. § 416.920.

At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since April 1, 

2017. (R. 25.) At step two, the ALJ concluded that Plaintiff has the severe impairments of Lyme 

Disease, Morgellons Syndrome, and degenerative disc disease of the cervical spine. (Id.) At step three, 

the ALJ concluded that Plaintiff does not have an impairment or combination of impairments that 

meet or medically equal the severity of a listed impairment. (R. 26.) The ALJ next found that Plaintiff 

retained the residual functional capacity (“RFC”) to perform light work with the following 

restrictions: frequently able to climb ramps or stairs; occasionally able to climb ladders, ropes, or 

scaffolds; frequently able to balance, stoop, kneel, and crawl; occasionally able to crouch; and 

occasionally able to work at unprotected heights, around moving mechanical parts, in humidity, 

wetness, or vibration. (R. 26.) At step four, the ALJ concluded Plaintiff was able to perform her past 

relevant work as a Cafeteria Attendant and Home Attendant. (R. 30.) These findings led to the 

conclusion that Plaintiff is not disabled as defined by the Social Security Act. (Id.)

Plaintiff was not represented by counsel at the time of her hearing before the ALJ. Plaintiff 

and the ALJ went through a fairly lengthy colloquy regarding her waiver to the right to counsel at the 

hearing. The Administrative Record also demonstrates Plaintiff received two pamphlets entitled 

“Your Right to Representation” that explained the roles counsel may play in Social Security 

proceedings, the availability of free counsel or counsel that might work on a contingency basis, and 

the limitation on attorney fees to 25 percent of past due benefits and the requirement for court approval 

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of those fees. (R. 170-171, R 187-188.) At the hearing, the ALJ assured Plaintiff he would get any 

additional information Plaintiff wished to supply. (R. 42, 46.)

The record reflects that Plaintiff suffered from problems with her lumbar spine. At the hearing, 

Plaintiff testified she had had three surgeries on her lower back, and that the third surgery had been 

helpful; she did not report problems with her lower back at that time. (R. 57.) However, there are 

several points in the record where Plaintiff complained of lower back pain. At a consultative 

examination with Dr. Dinesh K. Jain, M.D., Plaintiff complained of lower back pain at a seven or 

eight out of 10 that radiated into her right leg. (R. 553.) At a later consultative examination, Dr. Albert 

Osei, M.D., noted that Plaintiff “has lower back pain that has required surgical intervention on three 

occasions but the pain is persistent.” (R. 604.) Upon examination, Dr. Osei found that Plaintiff’s 

lumbar spine range of motion was “reduced because of pain.” (R. 607.) The ALJ noted that Plaintiff 

testified at the hearing her lower back pain “was no longer an issue,” and “[y]et when sitting for her 

internal medicine consultative examination in June 2018 (expressly for the purpose of determining 

disability), she reported continued lower back pain.” (R. 28.)

II. Social Security Regulations and Standard of Review

The Social Security Act requires all applicants to prove they are disabled as of their date last 

insured to be eligible for disability insurance benefits. ALJs are required to follow a sequential fivestep test to assess whether a claimant is legally disabled. The ALJ must determine: (1) whether the 

claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe 

impairment; and (3) whether the severe impairment meets or equals one considered conclusively 

disabling such that the claimant is impeded from performing basic work-related activities. 20 C.F.R. 

§ 404.1520; 20 C.F.R. § 416.920(a)(4)(i)-(v). If the impairment(s) does meet or equal this standard, 

the inquiry is over and the claimant is disabled. 20 C.F.R. § 416.920(a)(4). If not, the evaluation 

continues and the ALJ must determine (4) whether the claimant is capable of performing his past 

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relevant work. Cannon v. Harris, 651 F.2d 513, 517 (7th Cir. 1981). If not, the ALJ must (5) consider 

the claimant’s age, education, and prior work experience and evaluate whether she is able to engage 

in another type of work existing in a significant number of jobs in the national economy. Id. At the 

fourth and fifth steps of the inquiry, the ALJ is required to evaluate the claimant’s RFC in calculating 

which work-related activities she is capable of performing given his limitations. Young v. Barnhart, 

362 F.3d 995, 1000 (7th Cir. 2004). In the final step, the burden shifts to the Commissioner to show 

there are significant jobs available that the claimant is able to perform. Smith v. Schweiker, 735 F.2d 

267, 270 (7th Cir. 1984).

In disability insurance benefits cases, a court’s scope of review is limited to deciding whether 

the final decision of the Commissioner of Social Security is based upon substantial evidence and the 

proper legal criteria. Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2004). Substantial evidence 

exists when a “reasonable mind might accept [the evidence] as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971); Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 

2001). While reviewing a commissioner’s decision, the Court may not “reweigh evidence, resolve 

conflicts in the record, decide questions of credibility, or substitute [its] own judgment for that of the 

Commissioner.” Young, 362 F.3d at 1001. Although the Court reviews the ALJ’s decision 

deferentially, the ALJ must nevertheless “build an accurate and logical bridge” between the evidence 

and his conclusion. Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002) (internal citation omitted). 

Even where “reasonable minds could differ” or an alternative position is also supported by substantial 

evidence, the ALJ’s judgment must be affirmed if supported by substantial evidence. Elder v. Astrue, 

529 F.3d 408, 413 (7th Cir. 2008); Scheck, 357 F.3d at 699. On the other hand, the Court cannot let 

the Commissioner’s decision stand if the decision lacks sufficient evidentiary support, an adequate 

discussion of the issues, or is undermined by legal error. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 

535,539 (7th Cir. 2003); see also, 42 U.S.C.§ 405(g).

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III. Discussion

The Court remands this case for further proceedings because the ALJ did not adequately 

perform his duty to develop the record for a claimant unrepresented by counsel. Although a claimant 

has a statutory right to counsel, “a claimant can waive that right once advised of ‘(1) the manner in 

which an attorney can aid in the proceedings, (2) the possibility of free counsel or a contingency 

arrangement, and (3) the limitation on attorney fees to 25 percent of past due benefits and required 

court approval of the fees.’” Jozefyk v. Berryhill, 923 F.3d 492, 496 (7th Cir. 2019) (quoting Skinner 

v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007)). However, “so long as it contains the required 

information, written notice adequately apprises a claimant of his right to counsel,” and the Seventh 

Circuit has ruled that the “Your Right to Representation” pamphlet at issue here satisfies the 

requirement. Id. at 497. As such, the Court finds that Plaintiff was adequately informed of her right 

to counsel prior to waiving that right.

Regardless of whether the ALJ obtained a valid waiver of counsel, “the ALJ has a

duty ‘scrupulously and conscientiously [to] probe into, inquire of and explore for all of the relevant 

facts....’” Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994 (quoting Smith v. Sec’y of Health, 

Education, & Welfare, 587 F.2d 857, 860 (7th Cir.1978)). “The ALJ’s duty to develop the record 

fully and fairly where the claimant proceeds without counsel is met if the ALJ probes the claimant 

for possible disabilities and uncovers all of the relevant evidence.” Jozefyk, 923 F.3d 492, 497 (7th 

Cir. 2019) (citing Binion, 13 F.3d at 245).

The Court does not believe the ALJ fully and fairly developed the record or “scrupulously and 

conscientiously” probed into the relevant facts relating to Plaintiff’s lumbar spine problems and 

surgical interventions. For example, the Administrative Record leaves the Court guessing as to the

exact nature of the surgeries, when they were performed, why they were performed, who performed 

them, where they were performed, the diagnoses that led to the surgeries, and the prognosis for 

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recovery. The record is virtually devoid of any discussion of these surgeries other than the brief 

testimony at the hearing and Dr. Osei’s passing reference to them in his consultative report. The Court 

understands that Plaintiff stated that she was not suffering from lumbar spine pain at the hearing and 

she had achieved pain relief following the third surgery, but the record shows that only a few months 

earlier she was complaining about radiating pain in her lower back and demonstrated a limited range 

of motion as a result.3 The Court believes the ALJ had a duty to elicit more detailed testimony about 

this injury and obtain all the relevant medical treatment records relating to that issue. See Binion, 

13 F.3d at 245 (ALJ fulfilled duty to develop the record where he “obtained all of the medical and 

treatment records from plaintiff’s treating physicians,” elicited detailed testimony at the hearing, and

probed into all of the relevant areas, questioning plaintiff about the medical evidence in the file, her 

medication, pain, daily activities, and physical ability to perform a number of activities.) By failing 

to do so, the Court finds Plaintiff was prejudiced and that this error warrants remanding the case for 

further proceedings. 

IV. Conclusion

The Commissioner’s Motion for Summary Judgment (dkt. 21) is denied and Plaintiff’s motion 

(dkt. 15) is granted. The case is remanded for further proceedings consistent with this opinion.

Entered: March 21, 2022

_________________________________

United States Magistrate Judge, 

Susan E. Cox

3 The Court is also troubled by the ALJ’s oblique implication that Plaintiff’s reports of lower back pain were examples 

of malingering by Plaintiff. To reach such conclusions, the ALJ would need to do significantly more work to analyze and 

understand the nature of Plaintiff’s lumbar spine issues. The accusation also does not make sense. Plaintiff testified to the 

ALJ she did not have back pain at the time of the hearing. Why would Plaintiff exaggerate the nature of her back injury 

for the consultative examiners but not for the ALJ who has the power to determine whether her claim succeeds or fails?

Certainly, the hearing before the ALJ was no less “expressly for the purpose of determining disability” than the 

consultative examinations. (R. 28.) 

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