     Case: 1:19-cv-01981 Document #: 35 Filed: 09/24/20 Page 1 of 10 PageID #:2172



                         UNITED STATES DISTRICT COURT
                         NORTHERN DISTRICT OF ILLINOIS
                               EASTERN DIVISION

     CHRISTINE C.,                                 )
                                                   )
                 Plaintiff,                        )      No. 19-cv-1981
                                                   )
                               v.                  )      Magistrate Judge Susan E. Cox
                                                   )
     ANDREW M. SAUL, Commissioner of               )
     the Social Security Administration,           )
                                                   )
                 Defendant.                        )

                       MEMORANDUM OPINION AND ORDER

        Plaintiff Christine C.1 appeals the decision of the Commissioner of the Social

Security Administration (“Commissioner”) denying her disability benefits. The

parties have filed cross motions for summary judgment.2 As detailed below, Plaintiff’s

motion for summary judgment [dkt. 17] is GRANTED; Defendant’s motion for

summary judgment [dkt. 27] is DENIED. The ALJ’s decision is reversed and

remanded for proceedings consistent with this Memorandum Opinion and Order.

I.     Background

       a.   Procedural History

        Plaintiff was born in 1963. [Administrative Record (“R.”) 90.] In early

September 2015, Plaintiff filed for both Disability Insurance Benefits and

Supplemental Security Benefits, alleging a disability onset date of January 5, 2015.

[R. 13.] Her application was denied initially and again upon reconsideration. Id.


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 has filed a Brief in Support of Reversing the Decision of the Commissioner of Social
Security [dkt. 17], which the Court construes as a motion for summary judgment.
  Case: 1:19-cv-01981 Document #: 35 Filed: 09/24/20 Page 2 of 10 PageID #:2173



Plaintiff, represented by counsel, then appeared at an administrative hearing before

Administrative Law Judge (“ALJ”) Nathan Mellman on October 17, 2017. [R. 45-75.]

A vocational expert (“VE”) was present and offered testimony. Id. On March 12, 2018,

ALJ Mellman issued an unfavorable decision. [R 13-36.] Plaintiff requested Appeals

Council review, which was denied on February 5, 2019. [R. 1-6.] Thus, the Decision

of the Appeals Council is the final decision of the Commissioner. Plaintiff, through

counsel, filed the instant action on March 22, 2019, seeking review of the

Commissioner’s most recent decision. [Dkt. 1.]

     b.   The ALJ’s Decision

      On March 12, 2018, the ALJ issued a written decision denying Plaintiff

disability benefits. [R. 13-36.] At Step One, the ALJ found that Plaintiff had not

engaged in substantial gainful activity since her alleged onset date of January 5,

2015. [R. 15.] At Step Two, the ALJ found that Plaintiff had the severe impairments

of: morbid obesity, degenerative disc disease of the lumbar spine; degenerative joint

disease of the knees; venous insufficiencies with episodes of venous stasis ulcers and

cellulitis; and bipolar disorder. Id. At Step Three, the ALJ determined that Plaintiff

did not have an impairment or combination of impairments that met or medically

equaled the severity of one of the listed impairments of 20 C.F.R. Part 404, Subpart

P, App’x 1. [R. 16-17.] Before Step Four, the ALJ found that Plaintiff had the residual

functional capacity (“RFC”) to perform light work with the following limitations: she

can lift, carry, push, and pull 20 pounds occasionally and 10 pounds frequently; she

can sit for seven hours, and stand and walk for one hour in a typical eight hour

workday; she can occasionally operate foot controls bilaterally, climb ramps and

                                          2
      Case: 1:19-cv-01981 Document #: 35 Filed: 09/24/20 Page 3 of 10 PageID #:2174



stairs, stoop, kneel, crouch, and crawl; she should never climb ladders, ropes, or

scaffolds, or work at unprotected heights; she can occasionally work in environments

with dust, odors, fumes, and pulmonary irritants; she can perform simple and routine

tasks; and she would need a cane to ambulate. [R. 17-34.] At Step Four, the ALJ found

Plaintiff incapable of performing any of her past relevant work, but that other jobs

existed in significant numbers in the national economy that Plaintiff would be able

to perform. [R. 35-36.] Because of these determinations, the ALJ found Plaintiff not

disabled under the Act. [R. 36.]

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. A court’s scope

of review in these cases 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

v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). 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). The Court cannot let the

                                             3
      Case: 1:19-cv-01981 Document #: 35 Filed: 09/24/20 Page 4 of 10 PageID #:2175



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).

III. Discussion

         Plaintiff asserts the ALJ assessed her subjective symptoms incorrectly, and

that this is grounds for remand.3 The Court agrees.

         In his analysis of Plaintiff’s subjective symptoms, the ALJ used the phrase “not

entirely consistent” to describe the Plaintiff’s statements concerning the intensity,

persistence, and limiting effects of her symptoms vis-à-vis the medical evidence of

record. [R. 20.] Specifically, the ALJ noted,

         [a]fter careful consideration of the evidence, I find that the claimant’s
         medically determinable impairments could reasonably be expected to
         cause the alleged symptoms; however, the claimant’s statements
         concerning the intensity, persistence and limiting effects of these
         symptoms are not entirely consistent with the medical evidence and
         other evidence in the record for the reasons explained in this decision.

Id.

         When weighing a claimant’s statements about their ailments, an ALJ must

apply a preponderance standard, not clear and convincing, or beyond a reasonable

doubt, standard of review. See HALLEX I-3-3-4. Preponderance means the fact to be

proven is more likely than not. Id.; 20 C.F.R. § 404.901; 20 C.F.R. § 404.953(a).

Therefore, Plaintiff argues that the phrase “not entirely consistent” represents an

incorrect legal standard applied by the ALJ to her case, as it implies the ALJ believed



3   Because the Court remands on those issued discussed in the instant Memorandum Opinion and
Order, the Court offers no opinion at this time as to the other alleged bases of error in the ALJ’s
decision raised by Plaintiff.
                                                4
   Case: 1:19-cv-01981 Document #: 35 Filed: 09/24/20 Page 5 of 10 PageID #:2176



Plaintiff’s statements could only be accepted if “entirely consistent” with the evidence.

[Dkt. 28, p. 19.]

       A recent Northern District of Illinois case, Minger v. Berryhill, 307 F. Supp. 3d

865 (N.D. Ill. 2018), is instructive. Minger contained the same boilerplate language

as is present here regarding consistency of a claimant’s subjective statements. The

Minger court identified this language as “yet another example of the continuous,

confusing and meaningless boilerplate that is all too common in these decisions and

that stubbornly persists in spite of the efforts of the Court of Appeals.” Minger, 307

F. Supp. 3d at 871 (citing, inter alia, Stark v. Colvin, 813 F.3d 684, 688 (7th Cir. 2016)

(deriding “ALJ’s use of language that this court routinely has condemned as

‘meaningless boilerplate’ and ‘backwards’ analysis.”)). Minger goes on to note that the

questioned language “doesn’t even match what the Commissioner’s own regulations

say the standard for evaluating allegations about symptoms is: that the ALJ must

determine whether those allegations ‘can reasonably be accepted as consistent with

the objective medical evidence and other evidence.’” Minger, 307 F. Supp. 3d at 871

(citing 20 C.F.R. § 416.929(a)). The Court adopts the language (and incredulity) of

Minger in querying, “[i]f ALJs really want boilerplate paragraphs in their opinions so

badly, why not simply echo the regulatory language?” Minger, 307 F. Supp. katelyn21@example.net.

       The Commissioner argues that other Northern District cases have dismissed

arguments where the claimant has argued the ALJ used the incorrect standard. [Dkt.

28 pp. 19-20 (citing Clemente A. v. Saul, 2019 WL 3973117, *3 (N.D. Ill., 2019); Kuhn

v. Berryhill, 2019 WL 1172988, *7 (N.D. Ill., 2019); Joe R. v. Berryhill, 363 F.Supp.3d

876, 884 (N.D. Ill., 2019); and Robert D. v. Berryhill, 2018 WL 4565385, *6 (C.D. Ill.,

                                            5
   Case: 1:19-cv-01981 Document #: 35 Filed: 09/24/20 Page 6 of 10 PageID #:2177



2018)).] On the other hand, however, Plaintiff points out that while there are some

cases indicating the “not entirely consistent” language is not fatal if adequate further

analysis is provided, there are also numerous cases finding that further analysis does

not remedy the ALJ’s application of the wrong standard by finding statements “not

entirely consistent.” [Dkt. 17, pp. 19-20 (citing Minger, 307 F.Supp.3d at 865; Farley

v. Berryhill, 314 F.Supp.3d 941, 946 (N.D. Ill., 2018); Dunbar v. Berryhill, 2018 WL

4095094, *3, FN 1 (N.D. Ill., 2018))]; [Dkt. 29, pp. 10-11 (citing Bancolita v. Berryhill,

2018 WL 2731227, *4 (N.D. Ill., 2018); Justin H. v. Berryhill, 2019 WL 2417423, *12-

13 (N.D. Ind., 2019); John P. v. Saul, 2019 WL 4072118, *11 (N.D. Ind., 2019); and

Murphy v. Berryhill, 2019 WL 1123511, *15 (N.D. Ind., 2019)).] Plaintiff contends the

later cited cases adopted the correct standard because analysis under too strict a

standard could lead the ALJ to discount statements which, under the correct

standard, would not be discounted or rejected. [Dkt. 29, pp. 10-11.] The Court agrees.

      However, there are cases suggesting the boilerplate “not entirely consistent”

language could be rendered benign as long as the ALJ provides a sufficient

explanation for how the claimant’s statements were weighed. See Clemente A., 2019

WL 3973117, at *4 (collecting cases; noting that the Seventh Circuit has upheld

similar boilerplate language so long as ALJ’s decision is fully explained). Specifically,

“When an individual’s symptoms and related limitations are found to be inconsistent

with the evidence in the record, the ALJ must explain which of an individual’s

symptoms she found consistent or inconsistent with the evidence and how her

evaluation of the individual’s symptoms led to her conclusions.” Dejohnette v.

Berryhill, 2018 WL 521589, at *5 (N.D. Ill. Jan. 22, 2018) (citing SSR 16-3p). Here,

                                            6
  Case: 1:19-cv-01981 Document #: 35 Filed: 09/24/20 Page 7 of 10 PageID #:2178



unfortunately, the ALJ’s language implied some of Plaintiff’s statements were

credited and some were not, without indicating which statements were which, thus

frustrating judicial review of the RFC assessment. This failure renders meaningful

judicial review impossible. Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002)

(without a logical bridge, the reviewing court is unable to “assess the validity of the

agency’s ultimate findings and afford a claimant meaningful judicial review); Parker

v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010) (“‘not entirely credible’ boilerplate yields

no clue to what weight the trier of fact gave the testimony”).

      For example, it is nearly impossible to determine whether the ALJ may have

discounted the statements about leg elevation from Plaintiff’s long-time treating

physician, Dr. Jessica McIntyre, MD, because he found Plaintiff’s claims on this point

“not entirely consistent” with the medical record. The Commissioner argues the ALJ

held the “view that Plaintiff appeared to be overstating her limitations” because he

doubted the veracity of Plaintiff’s statements that she was told, on multiple occasions,

to elevate her legs. [Dkt. 28, p. 18-19.] This post hoc analysis doesn’t appear anywhere

in the ALJ’s opinion, and the Court is left to guess how or why the ALJ discounted

the need for leg elevation (e.g., Did the ALJ’s potentially incorrect analysis of

Plaintiff’s leg-elevation statements factor into the ALJ’s analysis in giving little

weight to Dr. McIntyre’s statements? Did the ALJ analysis of Dr. McIntyre’s opinions

and their “little weight” designation lead to the ALJ’s “view” that Plaintiff had

“overstat[ed] her limitations,” including those about leg elevation?) This illustrates

merely one aspect of frustrated judicial review in the instant matter.

      This brings the Court, briefly, to its next point about leg elevation. Had the

                                           7
   Case: 1:19-cv-01981 Document #: 35 Filed: 09/24/20 Page 8 of 10 PageID #:2179



ALJ credited Plaintiff’s need to elevate her legs every hour for 20 minutes, he would

have had to find Plaintiff disabled, as the VE in this case testified there would be no

jobs available for someone who needed this accommodation. [R. 72-73.] This

illustrates how significant the leg-illustration issue is to the instant matter. Thus,

resolving the conflicts/ambiguities concerning Plaintiff’s need to elevate her legs

should be paramount on remand, even if it entails seeking clarifying testimony from

Dr. McIntyre on this point. Additional evidence or clarification from a medical source

must be sought when there is a conflict or an ambiguity that must be resolved,

necessary information is missing, or a report does not appear to be based upon

objective evidence. 20 C.F.R. § 404.1512(e)(1). Further, it is the duty of the ALJ to

develop a full and fair record, which is lacking here without resolution of this conflict.

Henderson ex rel. Henderson v. Apfel, 179 F.3d 507, 513 (7th Cir.1999). Failure to

fulfill this obligation is “good cause” to remand for the gathering of additional

evidence. Smith v. Apfel, 231 F.3d 433, 437 (7th Cir. 2000).

      While the Commissioner is correct that an ALJ is not required to address all

of a claimant’s individual statements, none of the cases the Commissioner cites

include the same finding as the ALJ here. [Dkt. 28, p. 16 (citing Pepper v. Colvin, 712

F.3d 351, 368-69 (7th Cir. 2013); Jones v. Astrue, 623 F.3d 1155, 1161 (7th Cir. 2010);

Schmidt v. Astrue, 496 F.3d 833, 844 (7th Cir. 2007); and Sienkiewicz v. Barnhart,

409 F.3d 798, 804 (7th Cir. 2005)).] Specifically, the ALJs in both Pepper and Jones

found the claimants’ statements not credible. Pepper, 712 F.3d at 368-89; Jones, 623

katelyn21@example.net. In Schmidt, the ALJ found the evidence did not support the claimant’s

allegations (i.e., essentially finding the claimant not credible). Schmidt, 496 F.3d at

                                            8
  Case: 1:19-cv-01981 Document #: 35 Filed: 09/24/20 Page 9 of 10 PageID #:2180



841. Likewise, in Sienkiewicz, the ALJ found the claimant’s statements not

completely credible, and went on to say that the claimant’s statements about her pain

were inconsistent with the evidence (again, essentially finding her statements not

credible). Sienkiewicz, 409 katelyn21@example.net. The Court agrees with Plaintiff that the ALJ’s

boilerplate language here is distinguishable from these cases cited by the

Commissioner; the language used by the ALJ here is unique in that it renders the

ALJ’s actual findings unclear and frustrates judicial review because the Court is

unable to ensure those statements credited (whichever they might be) are included

in the RFC assessment, a pitfall not found in the cases cited by the Commissioner.

      Lastly, the Court notes how troubling it is to continually see ALJs implying, as

ALJ Mellman did here [R. 16], that cane usage needs to be prescribed. The Seventh

Circuit has repeatedly found that cane usage absolutely, unequivocally does not need

to be prescribed. Parker, 597 F.3d at 922 (“Absurdly, the administrative law judge

thought it suspicious that the plaintiff uses a cane, when no physician had prescribed

a cane. A cane does not require a prescription.”); Eakin v. Astrue, 432 Fed.Appx. 607,

613 (7th Cir. 2011) (same); Terry v. Astrue, 580 F.3d 471, 477-78 (7th Cir. 2009)

(same). In light of these rulings, the Court cannot conceive of any reason for an ALJ

to note that a cane has not been prescribed. It seems the only reason for an ALJ to

note the lack of a cane prescription is to reflect negatively on Plaintiff’s subjective

statements as a whole and particularly with respect to cane usage, which is improper.

On remand, the ALJ should more carefully address Plaintiff’s cane usage.

      In sum, the ALJ’s lack of clarity creates a void where there should be “an

accurate and logical bridge” between the evidence and the ALJ’s conclusions about

                                          9
  Case: 1:19-cv-01981 Document #: 35 Filed: 09/24/20 Page 10 of 10 PageID #:2181



Plaintiff’s subjective statements. Steele, 290 katelyn21@example.net. The Court must remand on

this basis. The Court must also remand on the failure to develop a full and fair record

due to the ambiguities surrounding Plaintiff’s need to elevate her legs.

IV. Conclusion

     Plaintiff’s motion for summary judgment [dkt. 17] is GRANTED; Defendant’s

motion for summary judgment [dkt. 27] is DENIED. The Court reverses and remands

this matter for proceedings consistent with this Memorandum Opinion and Order.


ENTERED: 9/24/2020
                                               _____________________________
                                               Susan E. Cox,
                                               United States Magistrate Judge




                                          10

{'dataset': 'courtlistener_docket_entry_documents'}