Case: 1:11-cv-04948 Document #: 26 Filed: 07/30/13 Page 1 of 18 PageID #:904
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
Acting Commissioner of Social Security,
Case No: 11 C 4948
Magistrate Judge Jeffrey Cole
MEMORANDUM OPINION AND ORDER
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).
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).
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.
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.
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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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.
UNITED STATES MAGISTRATE JUDGE