Oliver v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

JACKIE R. OLIVER, )

Plaintiff, )

)

v. ) CAUSE NO.: 1:19-CV-29-JPK

)

ANDREW SAUL, Commissioner of )

Social Security Administration, )

Defendant. )

OPINION AND ORDER

This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Jackie R. Oliver

on January 30, 2019, and Plaintiff’s Opening Brief [DE 20], filed on August 7, 2019. Plaintiff

requests that the February 8, 2018 decision of the Administrative Law Judge denying her claim for

disability insurance benefits be reversed and remanded for an award of benefits or, in the

alternative, for a new hearing. The Commissioner filed a response, and Plaintiff filed a reply. For

the following reasons, the Court remands this matter for further administrative proceedings.

PROCEDURAL BACKGROUND

On September 26, 2015, Plaintiff filed an application for disability insurance benefits,

alleging disability as of June 1, 2014. The claim was denied initially and on reconsideration.

Plaintiff requested a hearing, which was held before an Administrative Law Judge (ALJ) on

September 5, 2017. On February 8, 2018, the ALJ issued an unfavorable decision, making the

following findings:1

1. The claimant meets the insured status requirements of the Social Security

Act through March 31, 2019.

1 These are direct quotes of each of the ALJ’s bolded findings made at various points throughout the decision. Internal

citations to the Code of Federal Regulations are omitted.

2. The claimant has not engaged in substantial gainful activity since June 1,

2014, the alleged onset date.

3. The claimant has the severe combination of impairments of: fibromyalgia;

cervical degenerative disc disease and thoracic spondylosis and L5-S1 disc space

bulge with lumbar stenosis; positive rheumatoid factor; chronic fatigue and

malaise; attention deficit disorder; and generalized anxiety disorder.

4. The claimant does not have an impairment or combination of impairments

that meets or medically equals the severity of one of the listed impairments in

20 CFR Part 404, Subpart P, Appendix 1.

5. After careful consideration of the entire record, the [ALJ found] that the

claimant has the residual functional capacity to perform sedentary work as defined

in 20 CFR 404.1567(a) except the claimant is limited to lifting, carrying, pushing

and pulling less than ten pounds frequently and ten pounds occasionally. The

claimant can sit at least six hours in an eight hour work day and stand and/or walk

two hours in an eight hour work day. The claimant should not climb ropes, ladders

or scaffolds. The claimant is limited to work that involves simple, routine and

repetitive tasks that can be learned through short demonstration and up to thirty

days. The claimant can maintain the concentration required to perform simple tasks.

The claimant can remember simple work like procedures. The claimant can make

simple work related decisions. The claimant can maintain the concentration,

persistence, and attention to perform such duties on a day-in and day-out basis, for

eight hours per day, five days per week or within some other form of full time

competitive work environment. The claimant is limited to superficial interaction

with coworkers, supervisors and the public, with superficial interaction defined as

occasional and casual contact not involving prolonged conversation. Prolonged

conversation is not necessary for task completion. Contact with supervisors still

involves necessary instruction. The claimant is limited to low stress work defined

as requiring only occasional decision making and only occasional changes in the

work setting. The claimant can tolerate predictable changes in the work

environment.

6. The claimant has no past relevant work.

7. The claimant was born [in 1989] and was 24 years old, which is defined as

a younger individual age 18-44, on the alleged disability onset date.

8. The claimant has at least a high school education and is able to communicate

in English.

9. Transferability of job skills is not an issue because the claimant does not

have past relevant work.

10. Considering the claimant’s age, education, work experience, and residual

functional capacity, there are jobs that exist in significant numbers in the national

economy that the claimant can perform.

11. The claimant has not been under a disability, as defined in the Social

Security Act, from June 1, 2014, through the date of this decision.

(AR 12-262).

The Appeals Council denied Plaintiff’s request for review, leaving the ALJ’s decision the

final decision of the Commissioner. See 20 C.F.R. § 404.981. Plaintiff filed this civil action

pursuant to 42 U.S.C. § 405(g) for review of the Agency’s decision.

The parties filed forms of consent to have this case assigned to a United States Magistrate

Judge to conduct all further proceedings and to order the entry of a final judgment in this case.

Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and

42 U.S.C. § 405(g).

STANDARD OF REVIEW

The Social Security Act authorizes judicial review of the agency’s final decision. 42 U.S.C.

§ 405(g). The question before the Court is not whether the claimant is in fact disabled, but

whether the ALJ’s decision “applies the correct legal standard and is supported by substantial

evidence.” Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017); 42 U.S.C. § 405(g). Under

§ 405(g), the Court must accept the Commissioner’s factual findings as conclusive if they are

supported by substantial evidence, which is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Moore v. Colvin, 743 F.3d 1118, 1120-21 (7th Cir.

2014) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

The Court reviews the entire administrative record but does not re-weigh the evidence,

resolve conflicts in evidence, or substitute its judgment for that of the ALJ. See McKinzey v. Astrue,

641 F.3d 884, 890 (7th Cir. 2011) (citing Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th

2 Page numbers in the Administrative Record (AR) refer to the page numbers assigned by the filer, which is found on

the lower right corner of the page, and not the page number assigned by the Court’s CM/ECF system.

Cir. 2003)). However, “if the Commissioner commits an error of law,” the Court may reverse the

decision “without regard to the volume of evidence in support of the factual findings.” White v.

Apfel, 167 F.3d 369, 373 (7th Cir. 1999) (citing Binion v. Chater, 108 F.3d 780, 782 (7th Cir.

1997)). At a minimum, an ALJ must articulate his analysis of the evidence in order to allow the

reviewing court to trace the path of his reasoning and to be assured that the ALJ considered the

important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002). The ALJ also has a

basic obligation to develop a full and fair record and “must build an accurate and logical bridge

between the evidence and the result to afford the claimant meaningful judicial review of the

administrative findings.” Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014).

DISABILITY STANDARD

To be eligible for disability benefits, a claimant must establish that she suffers from a

“disability,” which is defined as an inability to engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment that can be expected to result

in death or that has lasted or can be expected to last for a continuous period of not less than

twelve months. 42 U.S.C. § 423(d)(1)(A). The ALJ follows a five-step inquiry to determine

whether a claimant is disabled: (1) whether the claimant has engaged in substantial gainful activity

since the alleged onset of disability, (2) whether the claimant has a medically determinable

impairment or combination of impairments that is severe, (3) whether the claimant’s impairment

or combination of impairments meets or medically equals the criteria of any presumptively

disabling impairment listed in the regulations, (4) if the claimant does not meet a listing, whether

she is unable to perform her past relevant work, and (5) if the claimant is unable to perform past

relevant work, whether she is unable to perform any work in the national economy. See 20 C.F.R.

§ 404.1520(a)(4)(i)-(v).

Prior to step four, the ALJ determines the claimant’s residual functional capacity (RFC),

which “is an administrative assessment of what work-related activities an individual can perform

despite her limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001). An affirmative

answer at either step three or step five leads to a finding of disability. Briscoe ex rel. Taylor v.

Barnhart, 524 F.3d 345, 352 (7th Cir. 2005); 20 C.F.R. § 404.1520(a)(4). The claimant bears the

burden of proving steps one through four, whereas the burden at step five is on the ALJ. Zurawski

v. Halter, 245 F.3d 881, 885-86 (7th Cir. 2001).

ANALYSIS

Plaintiff alleges that the ALJ erred by (1) improperly overemphasizing her daily activities

and (2) failing to incorporate all of Plaintiff’s limitations in the RFC and further failing to consider

the combined impact of the limitations from all of Plaintiff’s impairments.

A. Daily Activities

Plaintiff argues that the ALJ improperly overemphasized her daily activities in his

disability determination. Plaintiff relies in large part on Beardsley v. Colvin, a case where the

Seventh Circuit Court of Appeals noted that, while “it is proper for the Social Security

Administration to consider a claimant’s daily activities in judging disability, . . . we have urged

caution in equating these activities with the challenges of daily employment in a competitive

environment, especially when the claimant is caring for a family member.” 758 F.3d at 838.

Plaintiff explains that, to the detriment of her health, she cares for three young children: a

son with cerebral palsy, a daughter with autism, and another son with developmental delays. (Pl.’s

Opening Br. 13, ECF No. 20). Plaintiff states that her efforts increase her pain, that she requires a

1-2 hour nap every day, and that her ex-husband provides a significant amount of help. Id. at 14-15.

Accordingly, Plaintiff asserts that her daily activities do not resemble the challenges of daily

employment in a competitive environment. Id. at 15.

In response, the Commissioner contends that, although the ALJ noted the high level of care

Plaintiff provides to her children and the activities she engages in with them, the ALJ did not rely

solely on Plaintiff’s caretaking responsibilities to evaluate her functioning. (Def.’s Mem. 9, ECF

No. 21). The Commissioner states that the ALJ considered Plaintiff’s testimony, statements to

medical providers, and medical records, and properly found that Plaintiff’s allegations were simply

not consistent with the evidence before him. Id.

The Commissioner notes that the ALJ explained that Plaintiff’s alleged side effects due to

her medication were not supported by the record. Id. (citing AR 20). The Commissioner goes on

to recount the ALJ’s discussion of Plaintiff’s various alleged symptoms juxtaposed against the

medical records. Id. at 9-11 (citing AR 20-23). In his discussion of Plaintiff’s back pain, which she

alleges keeps her from working, the ALJ explained that the record showed that physical therapy

and injections managed her pain. Id. at 10-11 (citing AR 21). The ALJ further explained that

Plaintiff’s arthralgia, myalgia, and fibromyalgia were managed with medication, as were her

anxiety, sadness, and attention deficit disorder. Id. at 11-12 (citing AR 21-22). The Commissioner

thus argues that, unlike in Beardsley, the ALJ in the instant matter considered myriad factors when

he evaluated Plaintiff’s symptoms, including her daily activities, inconsistent statements, treatment

records, and documented improvement with medication. Id. at 12-13.

Plaintiff’s reply states only that she stands by the arguments in her Opening Brief and that

the Commissioner’s argument misses a major point of Beardsley. (Pl.’s Reply 1, ECF No. 22).

Plaintiff contends, “[p]arenthood may impel a person to engage in heroic efforts to take care of

their children despite disability. These heroic efforts make them no less disabled.” Id.

The ALJ found that Plaintiff’s “allegations concerning the intensity, persistence and

limiting effects of [her] symptoms [were] not entirely consistent with the medical evidence and

other evidence in the record.” (AR 20). Initially, though the issue was not raised by Plaintiff, the

Court notes that this is an incorrect statement of the relevant standard. The ALJ is not tasked with

determining whether Plaintiff’s symptoms are “entirely consistent” with the medical evidence.

Rather, the ALJ is instead instructed to determine whether the allegations concerning the intensity,

persistence, and limiting effects of these symptoms “can reasonably be accepted as consistent with

the objective medical evidence and other evidence.” 20 C.F.R. § 404.1529(a), (c)(4) (describing

how the Social Security Administration considers symptoms). The standard that a symptom “can

reasonably be accepted as consistent” with objective evidence, as one court explained, “is clearly

a different, and a not as rigorous, [] standard than the ALJ[] demanded in this case, namely that

allegations be ‘entirely consistent’ with the medical and other evidence.” Minger v. Berryhill, 307

F. Supp. 3d 865, 871 (N.D. Ill. 2018).

Nonetheless, an ALJ’s use of an oft-repeated phrase such as “not entirely consistent” is

only meaningless boilerplate “when the ALJ substitutes it for a proper, full-bodied explanation of

why credibility is lacking.” Hammerslough v. Berryhill, 758 F. App’x 534, 539 (7th Cir. 2019).

This language is not necessarily fatal so long as the ALJ fully explains his decision and a

“commonsensical reading” of the entire decision suggests no error. Clemente A. v. Saul, No. 18

CV 6345, 2019 WL 3973117, *3-4 (N.D. Ill. Aug. 22, 2019) (declining to find that ALJ’s use of

boilerplate language tainted the decision with legal error or undermined the entirety of an

otherwise-supported symptom assessment where ALJ used the phrase “not entirely consistent” but

nonetheless applied the correct standard of “reasonably . . . consistent with the objective medical

evidence and other evidence”).

In the instant matter, it appears to the Court that the ALJ applied the correct standard, even

though the incorrect “entirely consistent” language was used in his decision. At the beginning of

his discussion of the RFC, the ALJ properly stated the standard as whether the allegations

concerning the intensity, persistence, and limiting effects of Plaintiff’s symptoms “can reasonably

be accepted as consistent with the objective medical evidence and other evidence,” pursuant to 20

C.F.R. § 404.1529. (AR 19). Despite his later erroneous statement of the standard as “entirely

consistent with,” it seems that the ALJ nevertheless endeavored to compare Plaintiff’s allegations

against the underlying records for a determination of whether her claims could be reasonably

accepted as consistent with the medical evidence. However, the Court finds that the ALJ’s opinion

is deficient for other reasons, as explained further below.

While it seems the ALJ took care to contrast Plaintiff’s testimony regarding her alleged

symptoms with the underlying medical records, he nonetheless placed improper emphasis on

Plaintiff’s daily activities when evaluating her claims of chronic fatigue and malaise. The ALJ

recounted a January 2015 medical record reflecting Plaintiff complained of fatigue, stated that she

was sleeping 9-10 hours per night, and denied any significant affective symptoms. (AR 22,

AR 404). The Court notes that the ALJ omitted the portion of this medical record noting that

Plaintiff described this problem as “quite severe in intensity.” (AR 404). The ALJ further

recounted an April 2015 examination, during which Plaintiff stated that she could not sleep due to

back pain, and a November 2015 examination, where Plaintiff stated that the quality of her sleep

was poor. (AR 22, 398, 597). In August 2016 Plaintiff was seen for obstructive sleep apnea, stated

that she was still fatigued, and further stated that she was not sleeping well, though the ALJ noted

only the last of these issues. (AR 22, 784). The record of an October 2016 examination stated that

Plaintiff again complained of fatigue (AR 22, 791).3 In February 2016, Plaintiff was assessed with

obstructive sleep apnea and underwent a pulse oximetry test, which revealed her oxygen level was

less than 89% for ten minutes. (AR 22, 571, 578).

The ALJ then listed the evidence he found contrary to Plaintiff’s allegations regarding the

existence and severity of her chronic fatigue and malaise. A thyroid hormone level test conducted

in August 2015 came back normal. (AR 22, 505). Further, a physician’s note from a July 2016

examination stated that the machine used in Plaintiff’s overnight oximetry test was not functioning

properly. (AR 22, 777). A note from an August 2016 examination also stated that a later conducted

sleep study was normal. (AR 22, 784). As framed by the ALJ, examination notes in February4 and

March 2017 indicated that Plaintiff “did not allege fatigue.” (AR 22, 807-21). A September 2017

record stated that Plaintiff was advised to pursue natural forms of sleep aid, such as melatonin.

(AR 22, 896). A function report filled out by Plaintiff in February 2016 explained that she helps

her children get ready for school, takes her children to therapy, assists her children with homework,

prepares meals, does laundry, vacuums, drives, and shops. (AR 22, 259, 261, 262, 268). Finally,

Plaintiff testified at the hearing that she helps her middle child go to the bathroom, eat, dress, and

bathe. (AR 22, 45). Plaintiff further testified that she could make meals, clean up toys, do dishes

with breaks, and spend time with a friend once or twice a month. (AR 22, 59-60, 63). After

recounting this evidence, the ALJ concluded that, “[o]verall, despite [Plaintiff’s] allegations of

fatigue, she has demonstrated that she is able to take care of herself and her three young children.”

(AR 22).

3 The ALJ further stated that a December 2016 examination reflected Plaintiff complained of fatigue, but the Court is

unable to find this statement in the cited medical record.

4 The ALJ stated this date as January 2017, but the cited exhibit contains no record of an examination conducted in

that month.

The Seventh Circuit Court of Appeals has often warned against equating the performance

of daily activities with the ability to perform full-time, competitive work. Bjornson v. Astrue, 671

F.3d 640, 647 (7th Cir. 2012) (“The critical differences between activities of daily living and

activities in a full-time job are that a person has more flexibility in scheduling the former than the

latter, can get help from other persons . . . , and is not held to a minimum standard of performance,

as she would be by an employer.”); Punzio v. Astrue, 630 F.3d 704, 712 (7th Cir. 2011); Moss v.

Astrue, 555 F.3d 556, 562 (7th Cir. 2009); Zurawski, 245 F.3d at 887. The ALJ was not tasked

with determining whether Plaintiff was capable of caring for herself and her children, yet he

emphasized her ability to do so as if it undercut her allegations of chronic fatigue and malaise. In

doing so, the ALJ ignored Plaintiff’s testimony that she takes multiple naps per day due to

exhaustion. During the hearing, Plaintiff testified that, during a typical day, she normally needs to

lay down for 1-2 hours after getting her children ready for school. (AR 59). Plaintiff then takes

another nap for a couple of hours after her daughter returns home from a half day at school.

(AR 59-60, 91). Moreover, the ALJ’s wording seems to misrepresent the February and March

2017 examination notes. The ALJ stated that, “[i]n January and March 2017, examination notes

indicate that [Plaintiff] did not allege fatigue.” (AR 22). However, these records simply do not

address Plaintiff’s fatigue at all; they do not contain any affirmative statement that her fatigue was

resolved or lessened. (AR 807-21). This is unsurprising, as these exams were conducted to treat

other acute medical issues. Id. The ALJ summarized Plaintiff’s daily activities and concluded that

they negated Plaintiff’s allegation that her fatigue impacts her ability to perform full-time work.

The Court does not suggest that it was wholly improper for the ALJ to consider Plaintiff’s

daily activities. Per the regulations and case law, ALJs are directed to consider a claimant’s daily

activities when evaluating a claimant’s credibility and the severity of her symptoms. See Shumaker

v. Colvin, 632 F. App’x 861, 866 (7th Cir. 2015) (noting the ALJ permissibly evaluated the

plaintiff’s daily activities against her asserted impairments in assessing whether she was

exaggerating the effects of her impairments); see also 20 C.F.R. § 404.1529(c)(3)(i) (explaining

that the ALJ will consider daily activities in evaluating a claimant’s symptoms); SSR 96-7P, 1996

WL 374186, at *3 (directing the ALJ to consider daily activities in determining the credibility of

a claimant’s statements about symptoms). Nonetheless, in reaching his conclusion, the ALJ

improperly relied upon Plaintiff’s daily activities in the face of medical records and testimony

documenting her impairments—specifically, her fatigue. Moreover, in his discussion of Plaintiff’s

migraines, the ALJ mentioned the help Plaintiff receives from her ex-husband in caring for her

children. (AR 15). Yet, in discussing Plaintiff’s daily activities, the ALJ left out any reference to

the help Plaintiff receives in accomplishing these activities. As stated by the Seventh Circuit Court

of Appeals, the failure to recognize the differences between activities of daily living and activities

in a full-time job including, inter alia, that a claimant may receive help from other persons in daily

life, is problematic in social security disability cases. Bjornson, 671 F.3d at 647. Here, the ALJ’s

conclusion that Plaintiff demonstrated she was able to care for herself and her children, despite her

allegations of fatigue, is meaningless. Relying upon such a determination in finding that Plaintiff

could perform full time work was error. Beardsley, 758 F.3d at 838. The ALJ impermissibly used

Plaintiff’s daily activities to justify the parameters of the RFC and equated Plaintiff’s ability to

engage in daily activities with a lack of disability related to one of her claimed impairments.

(AR 22). Accordingly, remand is required for proper consideration of Plaintiff’s alleged chronic

fatigue and malaise and any potential limitations therein.

B. Residual Functional Capacity

Plaintiff argues that the ALJ failed to include a limitation in the RFC to accommodate both

Plaintiff’s excessive absenteeism due to viral outbreak periods and Plaintiff’s off task requirements

due to her daily naps. Plaintiff contends that this contravenes SSR 96-8p, which requires an ALJ

to “consider limitations and restrictions imposed by all of an individual’s impairments, even those

that are not ‘severe,’” when assessing the RFC. 1996 WL 374184, *5 (July 2, 1996). Plaintiff

explains that she suffers from chronic fatigue and is required to take a 1-2 hour nap every day.

(Pl.’s Opening Br. 16, ECF No. 20). Plaintiff further states that she has suffered from a persistent

viral infection since at least 2013, which presents in outbreaks for approximately seven days every

three months. Id. Because the vocational expert (VE) testified that employer off task tolerance is

approximately 10%, Plaintiff contends that an RFC containing proper absenteeism and off task

limitations would preclude her from engaging in competitive work. Id.

The Commissioner responds that Plaintiff failed to point to any evidence to support the

arguments in her brief. (Def.’s Mem. 5, ECF No. 21). Nonetheless, the Commissioner asserts that

the ALJ did consider the limited evidence available regarding Plaintiff’s alleged fatigue and viral

outbreak periods. Id. The Commissioner states that the ALJ noted Plaintiff’s alleged symptoms

throughout the relevant period and juxtaposed those allegations against the medical records,

finding that the records did not support the extent to which Plaintiff claimed these symptoms

impacted her ability to engage in basic work activities. Id. at 5-7. Finally, the Commissioner argues

that Plaintiff bears the burden of providing evidence establishing the degree to which her

impairments limit her RCF, pursuant to 20 C.F.R. § 404.1545(a)(3), and that she proffered no

evidence showing that she needs naps or other accommodations for her viral outbreaks. Id. at 7-8.

Once again, Plaintiff’s reply states only that she stands by the arguments in her Opening

Brief and that these constitute a sufficient reply. (Pl.’s Reply 1, ECF No. 22).

The RFC is a measure of what an individual can do despite the limitations imposed by her

impairments. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); 20 C.F.R. § 404.1545(a).

The determination of a claimant’s RFC is a legal decision rather than a medical one. 20 C.F.R.

§ 404.1527(e)(1); Diaz v. Chater, 55 F.3d 300, 306 n.2 (7th Cir. 1995). The RFC is an issue at

steps four and five of the sequential evaluation process and must be supported by substantial

evidence. SSR 96-8p at *3; Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000).

“RFC is an assessment of an individual’s ability to do sustained work-related physical and

mental activities in a work setting on a regular and continuing basis. A ‘regular and continuing’

basis means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96-8p at *1.

“The RFC assessment is a function-by-function assessment based upon all of the relevant evidence

of an individual’s ability to do work-related activities.” Id. at *3. The relevant evidence includes

medical history; medical signs and laboratory findings; the effects of symptoms, including pain,

that are reasonably attributed to a medically determinable impairment; evidence from attempts to

work; need for a structured living environment; and work evaluations, if available. Id. at *5. In

arriving at an RFC, the ALJ “must consider all allegations of physical and mental limitations or

restrictions and make every reasonable effort to ensure that the file contains sufficient evidence to

assess RFC.” Id. The “ALJ must also consider the combined effects of all the claimant’s

impairments, even those that would not be considered severe in isolation.” Terry v. Astrue, 580

F.3d 471, 477 (7th Cir. 2009); see also Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir.

2003).

The ALJ’s analysis of Plaintiff’s chronic fatigue was addressed in the section above and

need not be addressed again here, as the Court has already found that remand is appropriate for

proper consideration of this issue. Turning next to the issue of Plaintiff’s viral infection, the Court

again finds that the ALJ committed error.

In arriving at his decision, the ALJ failed to address the issue of Plaintiff’s viral infection

entirely. Plaintiff presented numerous medical records confirming her diagnosis and noting

treatment sought. (AR 228, 333, 395, 415, 418, 421, 505, 540, 789, 807, 812). Additionally,

Plaintiff offered testimony at the hearing regarding this issue, explaining that she usually

experienced an outbreak every three months, and that these outbreaks typically lasted 7-10 days.

(AR 77-81, 91-92). Plaintiff further testified that these outbreaks cause her pain, require her to take

pain medication, make it difficult for her to get along with others, lead her to lose her temper, and

increase her depression. (AR 78-81). Finally, Plaintiff testified that these outbreaks would cause

her to miss work. (AR 80).

Despite the medical records and testimony offered by Plaintiff, the ALJ simply neglected

to address her viral infection anywhere in his opinion. This was error. See Villano v. Astrue, 556

F.3d 558, 563 (7th Cir. 2009) (“In determining an individual’s RFC, the ALJ must evaluate all

limitations that arise from medically determinable impairments, even those that are not severe, and

may not dismiss a line of evidence contrary to the ruling.”); Terry, 580 F.3d at 477 (“Although an

ALJ need not discuss every piece of evidence in the record, the ALJ may not ignore an entire line

of evidence that is contrary to the ruling.”). This error is compounded by the VE’s testimony that

Plaintiff would be precluded from working if she missed more than one day of work per month.

(AR 92-93). Accordingly, remand is required for proper consideration of Plaintiff’s medically

determinable impairments and the combined effects of these impairments, including her viral

infection and chronic fatigue, even if the ALJ finds that these would not be considered severe in

isolation.

C. Request for Award of Benefits

Plaintiff requests that the Court reverse and remand for an award of benefits or, in the

alternative, for a new hearing. “Courts have the statutory power to affirm, reverse, or modify the

Social Security Administration’s decision, with or without remanding the case for further

proceedings.” Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011) (citing 42 U.S.C. § 405(g)).

Nonetheless, “[a]n award of benefits is appropriate . . . only if all factual issues involved in the

entitlement determination have been resolved and the resulting record supports only one

conclusion—that the applicant qualifies for disability benefits.” Id. at 415. Remand for further

proceedings, not an award of benefits, is required in this matter, as it is not clear on the current

record that an award of benefits is required.

CONCLUSION

Based on the foregoing, the Court hereby GRANTS the alternative relief sought in

Plaintiff’s Opening Brief [DE 20], REVERSES the final decision of the Commissioner of Social

Security, and REMANDS this matter for further proceedings consistent with this Opinion and

Order. The Court DIRECTS the Clerk of Court to ENTER JUDGMENT in favor of Plaintiff and

against Defendant.

So ORDERED this 31st day of March, 2020.

s/ Joshua P. Kolar

MAGISTRATE JUDGE JOSHUA P. KOLAR

UNITED STATES DISTRICT COURT