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Case: 1:11-cv-04948 Document #: 26 Filed: 07/30/13 Page 1 of 18 PageID #:904







Acting Commissioner of Social Security,



Case No: 11 C 4948

Magistrate Judge Jeffrey Cole


The plaintiff, Anthony Hudson, seeks review of the final decision of the

Commissioner (“Commissioner”) of the Social Security Administration (“Agency”)

denying her application for Disability Insurance Benefits (“DIB”) under Title II of the

Social Security Act (“Act”), 42 U.S.C. §§ 423(d)(2), and Supplemental Security Income

(“SSI”) under Title XVI of the Act. 42 U.S.C. § 1382c(a)(3)(A). Mr. Hudson asks the

court to reverse and remand the Commissioner’s decision, while the Commissioner seeks

an order affirming the decision.



Mr. Hudson applied for DIB and SSI on August 8, 2007, alleging that he had

become disabled on December 31, 2001. (Administrative Record (“R.”) 187-93). His

application was denied initially and upon reconsideration. (R. 117-24, 135-44). Mr.

Hudson continued pursuit of his claim by filing a timely request for hearing. (R. 147-


An administrative law judge (“ALJ”) convened a hearing on December 10, 2009,

at which Mr. Hudson, represented by counsel, appeared and testified. (R. 37-116). In

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addition, Mr. Hudson’s sister testified, along with Pamela Tucker – a vocational expert –

and Dr. Sheldon Slodki – a medical expert. (R. 37). On June 18, 2010, the ALJ issued a

decision finding that Mr. Hudson was not disabled because he retained the capacity to

perform a limited range of simple, repetitive sedentary work, and that this allowed him to

do jobs that existed in significant numbers in the regional economy. (R. 15-25). This

became the final decision of the Commissioner when the Appeals Council denied Mr.

Hudson’ request for review of the decision on May 26, 2011. (R. 1-7). See 20 C.F.R. §§

404.955; 404.981. Mr. Hudson has appealed that decision to the federal district court

under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a

Magistrate Judge pursuant to 28 U.S.C. § 636(c).




Vocational Evidence

Mr. Hudson was born on November 22, 1962, making him thirty-nine years old as

of his alleged onset of disability. (R. 23). He has limited education, but can

communicate in English. (R. 23). Mr. Hudson’s work history includes stints as a

cleaner, cashier, roofer's helper, and industrial truck operator. (R. 23). He explained that

he always tried to keep a job because he needed one to survive, but he had to stop

working because his body was breaking down. (R. 58).


Medical Evidence

Mr. Hudson has a host of medical problems and has sought and received a great

deal of treatment. Consequently, the record in this case is a lengthy one: about 800


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pages. But, the parties rely on just a small sampling of those documents to support their positions.

Mr. Hudson is a diabetic who treats with insulin. Records of his trips to the

hospital reveal that he suffers from a number of attendant symptoms and consequences of

the disease, including fatigue, numbness and pain in his feet, and blurred vision on

occasion. He also has some hearing loss and experiences shortness of breath on exertion.

From June 28, 2005, to July1, 2005, Mr. Hudson was hospitalized for abdominal

pain and for uncontrolled diabetes mellitus. He had not been taking his insulin properly.

(R. 360-362). He was diagnosed with type 1 diabetes mellitus, with no evidence of

diabetic ketoacidosis; and diabetic peripheral neuropathy. He had markedly decreased

sensation in his feet, and decreased pulses in his right leg. (R. 370). He was treated with

insulin and released.

On September 20, 2005, Mr. Hudson returned to the hospital with complaints of

fatigue and foot pain and swelling that had persisted for months but were then worse. (R.

466). Mr. Hudson was again diagnosed with hyperglycemia and uncontrolled diabetes

mellitus at that time. (R. 466). Again, he was treated with insulin.

On November 10, 2006, Mr. Hudson visited Dr. Kumar Raigaga, complaining

that his feet were tingling, numb, and itching. (R. 503). Sharp sensations were

significantly decreased in his feet; gait was stable. Dr. Raigaga’s diagnosis was

controlled diabetes mellitus, type II, with neurological manifestations. (R. 503).

On March 16, 2007, an x-ray of Mr. Hudson's hips showed only "mild" osteo-

arthritic changes bilaterally. (R. 387). Glucose was elevated at 148, but albumin, protein,

and hematocrit levels were low. (R. 384).


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On August 14, 2007, and on August 21, 2007, Mr. Hudson made trips to the

emergency room complaining of nausea, vomiting, and blurry eye sight. (R. 336). On the

earlier visit, appropriate diagnostic imaging showed no radiographic evidence of acute

cardiopulmonary disease. Glucose was significantly elevated at 239; creatine kinase and

bilirubin were high, while albumin was low. (R. 393-94). On the later visit, Mr. Hudson’s

EKG was normal, but he was said to have a high probability of coronary artery disease.

(R. 344). He was suffering from fatigue and neuropathy as well, and a needles and pins

sensation in his feet. (R. 344). Hemoglobin, hematocrit, RBC count, and monocyte were

all low. (R. 412). A CT scan of the claimant's chest showed no evidence of a pulmonary

embolism. (R. 353). A stress test showed no definite reversible or fixed myocardial

perfusion defect; and a left ventricular ejection fraction of 52%. (R. 354). Mr. Hudson

also had an essentially normal echocardiographic study, and an adenosine stress ECG

was negative for ischemia. (R. 355-56).

On September 10, 2007, Dr. Barbara Semakula treated Mr. Hudson at the medical

center for complaints of foot pain and cough. (R. 410). She said Mr. Hudson’s diabetes

was stable and he was compliant with medication, but he was still suffering from blurred

vision, chest pain, and numbness/tingling. (R. 410). The doctor diagnosed diabetes

mellitus, uncontrolled, with neuropathy, and bronchitis. (R. 411).

On September 24, 2007, a bilateral lower extremity arterial doppler ultrasound

showed "mild" atherosclerosis of the claimant's lower extremities, without doppler

evidence of hemodynamically significant in-flow diameter stenosis of the common-

external iliac arteries or focal diameter stenosis of the superficial femoral arteries. (R.



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On October 4, 2007, Dr. Reynaldo Gotanco, reviewed the medical evidence on

behalf of the state disability agency. He noted that Mr. Hudson had diabetes mellitus

with neuropathy. Dr. Gotanco felt Mr. Hudson was capable of: occasionally lifting 20

pounds; frequently lifting 10 pounds; standing and/or walking for at least two hours in an

8-hour workday; sitting for about 6 hours in an 8-hour workday; and unlimited pushing

and/or pulling, other than as shown for the lift and/or carry restrictions. The doctor

stated that Mr. Hudson could occasionally climb ramps and stairs; climb ladders, ropes,

and scaffolds; and balance. He could perform all other postural activities frequently. Dr.

Gotanco stated that Mr. Hudson had no manipulative, visual, communicative, or

environmental limitations. (R. 542-48).

On October 16, 2007, Dr. Semakula stated that Mr. Hudson had a hearing

impairment that also impaired his balance. Because of this, Dr. Semakula said that he

was "able to perform limited duties." (R. 720). On October 26, 2007, a chest x-ray

showed no acute cardiopulmonary abnormalities. (R. 645). A CT scan of the chest on

December 4, 2007, was negative for a pulmonary embolism. (R. 614). On December 5,

2007, ultrasound showed no significant atherosclerotic disease. (R. 620).

Mr. Hudson’s asthma was acting up on January 7, 2008, and he made another

visit to the hospital. (R. 576). There was also tenderness and swelling in his feet. (R.

575-76). X-rays showed a normal heart size; pulmonary vascularity that was within

normal limits; and no pulmonary infiltrate or pneumothorax. (R. 579). ECG was normal.

(R. 593). Hemoglobin, hematocrit, and RBC count were again low. (R. 595).

On February 20, 2008, the Dr. Ragil Patel completed a Diabetes Mellitus

Residual Functional Capacity Questionnaire provided by Mr. Hudson’s attorney. Dr.


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Patel explained that he first saw Mr. Hudson just five months earlier, in September 2007.

He noted that Mr. Hudson suffered from several symptoms, including fatigue, general

malaise, numbness, swelling, and dizziness. Dr. Patel opined that Mr. Hudson could only

walk one city block without rest, could only sit for 30 minutes at one time, and could

only stand for 15 minutes at one time. He stated that Mr. Hudson could stand/walk for

less than 2 hours and could sit for about 4 hours in an 8-hour working day. Mr. Hudson

needed a job that permitted him to shift positions at will from sitting, standing, or

walking, and to sometimes take unscheduled breaks during an 8-hour working day. Mr.

Hudson did not have to elevate his legs during the workday, but he needed a cane for

standing and walking. Mr. Hudson did not have any significant limitations in reaching,

handling, or fingering, but could only rarely lift less than 10 pounds. Dr. Patel felt Mr.

Hudson would miss about one day per month due to his impairments or their treatments.

(R. 690-93).

On April 1, 2008, Mr. Hudson’s eye doctor noted that he had visual acuity of

20/25 in both eyes without correction. Mr. Hudson had diabetic retinopathy and macular

edema, but there were no abnormalities or limitations in his fields of vision, and the

prognosis for both eyes was good. Mr. Hudson’s vision would not be further impaired by

prolonged or occasional reading, stretching, lifting, or irritants. (R. 654-55, 703).

On April 6, 2008, Dr. Dino Delicata reported that audiological testing revealed

that Mr. Hudson had mild to severe hearing loss in both ears with poor word recognition

even when speech was amplified. With hearing aids, functional gain was only fair. (R.



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On April 17, 2008, Dr. Frank Jimenez reviewed the medical record on behalf of

the State disability agency. Dr. Jiminez stated that Mr. Hudson was capable of

performing light work, as long as it did not involve climbing ladders, ropes, or scaffolds.

He could only occasionally perform all other postural activities. The doctor found Mr.

Hudson had no manipulative or visual limitations. The claimant was limited in his

hearing, and should avoid working in areas that had more than moderate noise intensity

levels. Further, Dr. Jimenez noted that Mr. Hudson should avoid concentrated exposure

to fumes, odors, dusts, gases, and poor ventilation. (R. 708-15).

The Administrative Hearing Testimony



The Plaintiff’s Testimony

At his hearing, Mr. Hudson said that he had difficulty doing his jobs due to side

effects from his diabetes. (R. 56). Sometimes his supervisors would work around this,

but at one job he was terminated because he couldn’t keep up. (R. 57). By December of

2001, he stopped working because his body was “just shutting down” on him. (R. 58).

Mr. Hudson gave himself his insulin shots unless he wasn’t feeling good and was

having trouble seeing the needle. (R. 60). He has been on insulin since the early

nineties. (R. 61). He previously lived with his fiancé, who was out of work. When she

was working, when he was home alone, a neighbor would check on him. (R. 60). In the

morning, Mr. Hudson showered and his fiancé fixed breakfast. Thereafter, he would

generally watch TV or listen to the radio, and take a little walk around the house outside.

(R. 62). If he feels good, he can vacuum, but if he stands too long – say, washing the


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dishes – he gets dizzy. (R. 63). Mr. Hudson explained that he has fallen quite often. (R.

64). He uses a cane to help him maintain his balance. (R. 65).

Mr. Hudson testified that he had a hard time grasping instructions. (R. 65). He

also said that he had some hearing loss in both ears, and could understand people better if

he was looking right at them when they spoke. (R. 43). It had been years since he wore

hearing aids, though. (R. 43). At the time of the hearing, he hadn’t worked in eight years.

(R. 53). He had no income, and was not on public assistance or medicaid, so he couldn’t

afford them. (R. 65).


Plaintiff’s Sister’s Testimony

Ms. Stokes testified that she helped her brother by cooking, and her husband

helped him with showering and bathing. (R. 77). She had moved back from Atlanta to

take care of him because they had no other family. (R. 80). His nieces and nephews and

fiancé also helped out. (R. 77). Her brother went to special education classes throughout

school. (R. 78). She said his doctor indicated that he should discontinue his driver’s

license due to the numbness in his feet. (R. 79). She also said that, due to his blood

sugar, she noticed her brother suffered “space outs” two to three times a month. (R. 84-

85). In addition to insulin, Mr. Hudson took Advair and Singulair for asthma, and

Lisinopril for blood pressure. (R. 86-87). He also took something for his neuropathy.

(R. 88).


The Medical Expert’s Testimony

Dr. Slodki clarified that Mr. Hudson was taking insulin, Singulair, Albuterol,

Advair, Lisinopril, Neurotonin, Metformin, and Tylenol. (R. 91). He did not have an


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impairment that met a listing. (R. 48-51). The doctor opined that Mr. Hudson could

sustain sedentary activity for 8 hours a day, 40 hours a week. (R. 94). There was nothing

in the record that led Dr. Slodki to believe that Mr. Hudson would “space out” at work a

number of times a day. (R. 95).

The Vocational Expert’s Testimony


Ms. Tucker testified that Mr. Hudson’s past work ranged from unskilled and light

(cashier) to medium and semiskilled (industrial truck operator) to very heavy and

unskilled (roofer helper). (R. 98). The ALJ asked whether a person who could lift 10

pounds frequently and 20 pounds occasionally, stand or walk 2 hours and sit 6 hours, and

could occasionally balance and climb ramps, stairs, ladders, ramps, or scaffold could

perform any of Mr. Hudson’s past work. The VE said no. (R. 98-99). If the same

person had to use a cane to stand or walk, he could perform jobs like checker/inspector,

of which there were 400 positions in the region, assembler (1800 positions), bench

worker (900 positions). (R. 101-02). If the person had additional environmental

restriction like avoiding dust, fumes, or poor ventilation, that would reduce the number of

assembler and bench worker positions to 1000 and 700. (R. 103). If the person were

further limited to sedentary work, he could still handle those jobs. (R. 105). The person

could also perform 1600 machine operator positions. (R. 105). An additional restriction

to simple, routine, and repetitive task requiring only occasional decision-making were

added, the person could still perform such jobs. (R. 104). If the same person had to

stand up frequently – a sit/stand option – while employing his cane, it would eliminate

these positions because both hands would not be free. (R. 114-15).


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ALJ’s Decision

The ALJ began by finding that Mr. Hudson had not engaged in substantial gainful

activity since his alleged onset date. (R. 17). She then found that Mr. Hudson suffered

from the following severe impairments: diabetes mellitus with associate peripheral

neuropathy in the lower extremities, hearing loss, and asthma. (R. 17). The ALJ

concluded that Mr. Hudson did not have an impairment or combination of impairments

that met or equaled a listed impairment. She based this result on her own review and the

testimony of the medical expert. (R. 17).

The ALJ next decided that, despite his impairments, Mr. Hudson could perform a

very limited range of sedentary work, specifically:

sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except
that: [Mr. Hudson] should never climb ladders, ropes, or scaffolds; [Mr.
Hudson] should only occasionally climb stairs and ramps; Mr. Hudson
should only occasionally balance, but with a hand-held assistive device;
[Mr. Hudson] should only occasionally use foot pedals/controls; [Mr.
Hudson] should avoid concentrated exposure to unprotected heights; [Mr.
Hudson] should avoid concentrated exposure to odors, environmental
irritants, and poorly ventilated areas; and [Mr. Hudson] should be able to
use a cane to walk and stand. From a mental residual functional capacity
perspective, [Mr. Hudson] should do simple, routine, and repetitive tasks
and should be in a job with only occasional decision-making and with
only occasional changes in the work setting.

(R. 18). Based on the objective medical evidence, the ALJ determined that Mr. Hudson’s

“medically determinable impairments could reasonably be expected to cause the alleged

symptoms; however, [his] statements concerning the intensity, persistence, and limiting

effects of these symptoms are not credible to the extent they are inconsistent with the

above residual functional capacity assessment.” (R. 19). The ALJ then summarized the

medical record and made note of the medical expert’s opinion that Mr. Hudson could


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perform sedentary work. (R. 19-22). In terms of the other medical opinions in the

record, the ALJ assigned varying degrees of weight to them based on their consistency

with the medical record. (R. 21-22).

Finally, the ALJ considered Mr. Hudson’s age, education and work experience.

She noted that, if he had a capacity for a full range of sedentary work, the Medical-

Vocational Guidelines would direct a finding of “not disabled.” (R. 24). She then relied

on the testimony of the VE to find that Mr. Hudson could perform work that existed in

significant numbers in the regional economy and was, therefore, not disabled under the

Act. (R. 21).




The Standard of Review

The applicable standard of review of the Commissioner’s decision is a familiar

one. The court must affirm the decision if it is supported by substantial evidence. 42

U.S.C. §§ 405(g). Substantial evidence is such relevant evidence as a reasonable mind

might accept to support a conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008),

citing Richardson v. Perales, 402 U.S. 389, 401 (1971). The court may not reweigh the

evidence, or substitute its judgment for that of the ALJ. Terry v. Astrue, 580 F.3d 471,

475 (7th Cir. 2009); Berger, 516 F.3d at 544. Where conflicting evidence would allow

reasonable minds to differ as to whether a claimant is disabled, it is the ALJ’s

responsibility to resolve those conflicts. Elder v. Astrue, 529 F.3d 408, (7th Cir. 2008);

Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997). Conclusions of law are not entitled

to such deference, however, so where the Commissioner commits an error of law, the


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court must reverse the decision regardless of the volume of evidence supporting the

factual findings. Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir. 2007).

While the standard of review is deferential, the court cannot act as a mere “rubber

stamp” for the Commissioner’s decision. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir.

2002). An ALJ is required to “minimally articulate” the reasons for his decision.

Berger, 516 F.3d at 544; Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001).

Although the ALJ need not address every piece of evidence, the ALJ cannot limit his

discussion to only that evidence that supports his ultimate conclusion. Herron v. Shalala,

19 F.3d 329, 333 (7th Cir. 1994). The ALJ’s decision must allow the court to assess the

validity of his findings and afford the claimant a meaningful judicial review. Hopgood

ex rel. L.G. v. Astrue, 578 F.3d 696, 698 (7th Cir. 2009). The Seventh Circuit calls this

building a “logical bridge” between the evidence and the ALJ’s conclusion. Sarchet v.

Chater, 78 F.3d 305, 307 (7th Cir. 1996).


Five-Step Sequential Analysis

The Social Security Regulations provide a five-step sequential inquiry to

determine whether a plaintiff is disabled:

1) is the plaintiff currently unemployed;

2) does the plaintiff have a severe impairment;

3) does the plaintiff have an impairment that meets or equals one of the
impairments listed as disabling in the Commissioner’s regulations;

4) is the plaintiff unable to perform his past relevant work; and

5) is the plaintiff unable to perform any other work in the national


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20 C.F.R. §§ 404.1520; Simila v. Astrue, 573 F.3d 503, 512-13 (7th Cir. 2009); Briscoe

ex rel. Taylor v. Barnhart, 425 F.3d 345, 351-52 (7th Cir. 2005). An affirmative answer

leads either to the next step or, on steps 3 and 5, to a finding that Mr. Hudson is disabled.

20 C.F.R. §416.920; Briscoe, 425 F.3d at 352; Stein v. Sullivan, 892 F.2d 43, 44 (7th Cir.

1990). A negative answer at any point, other than step 3, stops the inquiry and leads to a

determination that Mr. Hudson is not disabled. 20 C.F.R. §404.1520; Stein, 892 F.2d at

44. Mr. Hudson bears the burden of proof through step four; if it is met, the burden shifts

to the Commissioner at step five. Briscoe, 425 F.3d at 352, Brewer v. Chater, 103 F.3d

1384, 1391 (7th Cir. 1997).



Mr. Hudson submits that there are several problems with the ALJ’s decision.

Essentially, the problems here are with the ALJ’s assessment of Mr. Hudson’s credibility

and her treatment of the opinions of his treating physicians.

In evaluating Mr. Hudson’s credibility, the ALJ employed the boilerplate that is

chronic (and analytically incorrect), notwithstanding the Seventh Circuit’s constant

denunciation of the formula in these cases:

I find that the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, [his]
statements concerning the intensity, persistence, and limiting effects of
these symptoms are not credible to the extent they are inconsistent with
the above residual functional capacity assessment.

(R. 19). Essentially, the ALJ determined what she thought Mr. Hudson could do, and

then found incredible all his allegations that were incompatible with that determination.

The Seventh Circuit has resoundingly – and repeatedly – disapproved of this language,

because it puts “the cart before the horse, in the sense that the determination of capacity


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must be based on the evidence, including the claimant's testimony, rather than forcing the

testimony into a foregone conclusion.” Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012);

Roddy v. Astrue, 705 F.3d 631, 635 (7th Cir. 2013); Bjornson v. Astrue, 671 F.3d 640,

644–45 (7th Cir.2012); Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010). But the

boilerplate itself is not fatal if the ALJ supports her finding with additional reasons such

as contradictory medical evidence. Filus, 694 F.3d at 868; Shideler v. Astrue, 688 F.3d

306, 311–12 (7th Cir. 2012).

Here, the ALJ’s only reason for not believing Mr. Hudson’s complaints was the

medical evidence. That’s one factor an ALJ should consider when assessing a claimant’s

credibility, Simila v. Astrue, 573 F.3d 503, 517 (7th Cir. 2009), because “discrepancies

between objective evidence and self-reports may suggest symptom exaggeration.” Getch

v. Astrue, 539 F.3d 473, 483 (7th Cir. 2008); Sienkiewicz v. Barnhart, 409 F.3d 798, 804

(7th Cir. 2005). But an ALJ cannot simply disregard a claimant’s allegations of

symptoms solely because their intensity is not substantiated by the medical evidence.

SSR 96–7p(4); Bjornson, 671 F.3d at 646; Moss v. Astrue, 555 F.3d 556, 561 (7th Cir.

2009); Johnson v. Barnhart, 449 F.3d 804, 806 (7th Cir. 2006). Objective medical

evidence is not essential. Mueller v. Astrue, 493 Fed.Appx. 772, 777 (7th Cir. 2012). An

ALJ must also consider factors such as daily activities and medication regimen. Filus,

694 F.3d at 869 (7th Cir. 2012); Simila, 573 F.3d at 517. The ALJ here was content with

looking at the objective medical evidence alone.

The ALJ made no mention of Mr. Hudson’s daily activities, which are minimal.

He does not prepare his own meals. He cannot shower on his own. Someone has to

check on him, especially to see if he is taking his insulin. The record is replete with


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instances where he has required treatment because he either forgot to take it or ran out.

He watches TV and walks around the outside of the house. He tired easily and was

unable to complete tasks like vacuuming or even washing dishes. For a time his fiancé

kept tabs on him. When she was out, she had a neighbor check on him. Eventually his

sister and her family moved here from Atlanta to take care of him. Now, he has a support

group that includes his sister and her husband, and nieces and nephews. It doesn’t strike

one as a portrait of someone who can hold down a job eight hours a day, five days a

week. In fact, Mr. Hudson’s testimony about his daily activities seems to jibe with how

he struggled at work before he finally gave up.

It was inappropriate for the ALJ to have ignored the manner in which Mr. Hudson

lived from day to day. This is especially so where the claimant’s daily activities are so

restricted. See, e.g., Roddy v. Astrue, 705 F.3d 631, 639 (7th Cir. 2013)(ALJ failed to

acknowledge that claimant struggled to complete even the simplest and least strenuous of

tasks); Chase v. Astrue, 458 Fed.Appx. 553, 557-58 (7th Cir. 2012)(ALJ failed to address

claimant’s testimony about his inability to simple chores). Craft v. Astrue, 539 F.3d 668,

680 (7th Cir. 2008)(“[Claimant’s] so-called ‘daily walk’ was merely to the mailbox at the

end of the driveway, his vacuuming took only four minutes, and his grocery shopping

was done on a motorized cart at the store . . . .”). A complete credibility analysis

accounts for the claimant’s allegations about how his symptoms affect his daily activities.

Eakin v. Astrue, 432 Fed.Appx. 607, 613 (7th Cir. 2011); Martinez v. Astrue, 630 F.3d

693, 697 (7th Cir.2011). The ALJ did not perform the complete analysis required here.

Similarly, the ALJ didn’t consider the array of medications Mr. Hudson was on.

In addition to insulin shots – when he remembered and when his vision wasn’t too blurry


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to see the needle – he took Singulair, Albuterol, Advair, Lisinopril, Neurotonin,

Metformin, and Tylenol. Hearing tests indicate that he really ought to be using hearing

aids in both ears, but could not afford them. He also needs a cane. At some, point, with

physicians prescribing all this, the suggestion is, where there’s smoke there’s fire. See

Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004)(“improbab[le] that this host of

medical workers would prescribe drugs and other treatment for [claimant] if they thought

[he] were faking h[is] symptoms.”). The ALJ’s failure to take this into consideration

further undermines her credibility determination.

That’s enough to require a remand but, there are even some flaws in the ALJ’s

use of the objective medical evidence to discredit Mr. Hudson. For example, the ALJ

discounted Mr. Hudson’s allegations of blurry vision because his eye doctor said his

vision would not be adversely affected by reading, stretching, lifting, or irritants. (R. 21).

But that’s not the same as saying Mr. Hudson would be able to work despite his

retinopathy and macular edema. The ALJ also seemed to think that because Mr. Hudson

tested at 20/25 that particular day, he was lying about his blurred vision. (R. 21). Mr.

Hudson didn’t claim his vison was always blurry, however, and with his condition it

wouldn’t necessarily be. His treating physician, Dr. Patel, said it was “episodic.” Dr.

Slodki, the medical expert, explained how it worked at the hearing:

He has had laser treatments for the macular edema and retinopathy, so he
has intermittent – and when the diabetics – all diabetics have variation in
visual acuity related to their blood sugar fluctuation. That’s, that’s not –
that usually doesn’t influence their visual acuity at the time of an
examination, but it can cause variations in visual acuity and, and, actually,
modify their refraction.

(R. 48). So one eye exam on one day does not provide a valid reason to disbelieve Mr.

Hudson’s claims that his vison gets blurry from time to time. Moreover, that’s the


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testimony of the “independent medical expert,” whom the ALJ found “credibly testified

at the hearing” and upon whom the ALJ relied for her residual functional capacity

finding. Yet, the ALJ made no mention of intermittent blurred vison in her residual

functional capacity finding or her hypotheticals to the VE.

Then there is Mr. Hudson’s hearing loss. The ALJ apparently believed Mr.

Hudson had a significant hearing loss, and said she was accounting for it – and his

“allegedly low I.Q.” – by limiting Mr. Hudson to “simple, routine, and repetitive tasks”

and jobs “with only occasional decision-making and with only occasional changes in the

work setting.” (R. 20). One can arguably follow how these restrictions might stem from

a low I.Q. – more on that later – but it’s not so easy to trace the path of the ALJ’s

reasoning from hearing loss to simple work. Supposedly, it has to do with Mr. Hudson’s

inability to hear instructions. Perhaps the ALJ is envisioning a situation where Mr.

Hudson has to have things repeated over and over? Maybe the fact that the work is

simple means the instructions will be brief and it will take up less of the workday

reiterating them? See 20 CFR §404.1568(a). It’s left unexplained. And, as such, it

smacks of the line of case where the Seventh Circuit has disapproved of ALJs limiting

claimants with deficiencies in carrying out instructions to simple or unskilled work. See

Jelinek v. Astrue, 662 F.3d 805, 813 (7th Cir. 2011); O'Connor–Spinner v. Astrue, 627

F.3d 614, 619 (7th Cir.2010).

Returning to Mr. Hudson’s low I.Q., it seems that the ALJ overstepped her

bounds. She gave the impression that she was giving Mr. Hudson the benefit of the

doubt and throwing in some I.Q.-related restrictions even though there was no medical

evidence to back them up. But that diagnosis is not within an ALJ’s purview. Richards


Case: 1:11-cv-04948 Document #: 26 Filed: 07/30/13 Page 18 of 18 PageID #:921

v. Astrue, 370 Fed.Appx. 727, 730 (7th Cir. 2010); Hopgood ex rel. L.G. v. Astrue, 578

F.3d 696, 702 (7th Cir. 2009); Myles v. Astrue, 582 F.3d 672, 677 (7th Cir.2009). If the

ALJ suspected there was an intelligence level problem, she should have ordered a

consultative examination to determine its extent. Then she would be required to have

evaluated the evidence using the proper procedure, known as the “special technique.”

Richards v. Astrue, 370 Fed.Appx. 727, 730 (7th Cir. 2010)(remanding case where ALJ

“rated [claimant’s] mental functional limitations without the benefit of any medical

professional's assessment of her mental RFC” and failed to employ the special


The plaintiff has some additional concerns regarding the ALJ’s opinion but, as the

foregoing problems already necessitate a remand, those will not be addressed.


The plaintiff’s motion for summary judgment or remand [#15] is GRANTED, and

the Commissioner’s motion for summary judgment is DENIED.


DATE: 7/30/13