IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

FRANK C.,1 ) ) Plaintiff, ) ) No. 21 C 4090 v. ) ) Magistrate Judge KILOLO KIJAKAZI, Acting ) Maria Valdez Commissioner of Social Security, ) ) Defendant. ) )

MEMORANDUM OPINION AND ORDER This action was brought under

(g) to review the final decision of the Commissioner of Social Security denying Plaintiff Frank C.’s claims for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to

(c). For the reasons that follow, Plaintiff’s motion to reverse the Commissioner’s decision [Doc. No. 14] is granted in part, and the Commissioner’s cross-motion for summary judgment [Doc. No. 18] is denied.

1 In accordance with Internal Operating Procedure 22 – Privacy in Social Security Opinions, the Court refers to Plaintiff only by his first name and the first initial of his last name. BACKGROUND I. PROCEDURAL HISTORY On June 28, 2019, Plaintiff filed claims for DIB and SSI, alleging disability

since November 1, 2015. The claims were denied initially and upon reconsideration, after which he timely requested a hearing before an Administrative Law Judge (“ALJ”). A telephonic hearing was held on September 25, 2020, and all participants attended the hearing by telephone. Plaintiff appeared and testified at the hearing and was represented by counsel. A vocational expert (“VE”) also testified. On December 7, 2020, the ALJ denied Plaintiff’s claims for benefits, finding

him not disabled under the Social Security Act. The Social Security Administration Appeals Council then denied Plaintiff’s request for review, leaving the ALJ’s decision as the final decision of the Commissioner and, therefore, reviewable by the District Court under

(g). See Haynes v. Barnhart,

(7th Cir. 2005). II. ALJ DECISION Plaintiff’s claims were analyzed in accordance with the five-step sequential

evaluation process established under the Social Security Act. See

(a)(4). The ALJ found at step one that Plaintiff had not engaged in substantial gainful activity since his alleged onset date of November 1, 2015. At step two, the ALJ concluded that Plaintiff had the following severe impairments: migraines; vestibular disorder; spine disorder; hearing loss; peripheral neuropathy; depression; and somatic disorder. The ALJ concluded at step three that Plaintiff’s impairments, alone or in combination, do not meet or medically equal any listed impairments. Before step four, the ALJ determined that Plaintiff retained the following

residual functional capacity (“RFC”): can lift and/or carry up to 20 pounds occasionally and 10 pounds frequently, and has no limitations in the total amount of time he is able to sit, stand, or walk throughout an 8-hour workday; needs to alternate his position between sitting, standing, and walking for no more than five minutes out of every hour, and, while doing so, would not need to be off task; can occasionally push or pull or reach overhead with either upper extremity; can

occasionally climb ramps and stairs, and can occasionally stoop, kneel, crouch and crawl, but can never balance or climb ladders, ropes, or scaffolds; can perform fine and gross manipulation frequently but not constantly, and is incapable of forceful grasping or torquing; should not be required to use vibrating hand tools; is limited to working in non-hazardous environments, i.e., no driving at work, operating moving machinery, working at unprotected heights, and should avoid concentrated exposure to unguarded hazardous machinery; is limited to simple, routine tasks,

work involving no more than simple decision-making, no more than occasional and minor changes in the work setting, and work requiring the exercise of only simple judgment; is not capable of multitasking, or work requiring considerable self- direction; can work at an average production pace, but not at a significantly above average or highly variable pace; is precluded from work involving direct public service, in person or over the phone, although can tolerate brief and superficial interaction with the public which is incidental to his primary job duties; is unable to work in crowded, hectic environments; and can tolerate brief and superficial interaction with supervisors and co-workers, but is not to engage in tandem tasks.

At step four, the ALJ concluded that Plaintiff would be unable to perform his past relevant work as a janitor, security guard, or cashier. However, at step five, based upon the VE’s testimony and Plaintiff’s age, education, work experience, and RFC, the ALJ found that Plaintiff can perform jobs existing in significant numbers in the national economy, leading to a finding that he is not disabled under the Social Security Act.

DISCUSSION I. ALJ LEGAL STANDARD Under the Social Security Act, a person is disabled if she has an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.”

(d)(1)(a). In order to determine whether a plaintiff is

disabled, the ALJ considers the following five questions in order: (1) Is the plaintiff presently unemployed? (2) Does the plaintiff have a severe impairment? (3) Does the impairment meet or medically equal one of a list of specific impairments enumerated in the regulations? (4) Is the plaintiff unable to perform her former occupation? and (5) Is the plaintiff unable to perform any other work?

(a)(4). An affirmative answer at either step three or step five leads to a finding that the plaintiff is disabled. Young v. Sec’y of Health & Human Servs.,

(7th Cir. 1992). A negative answer at any step, other than at step three,

precludes a finding of disability.

The plaintiff bears the burden of proof at steps one to four.

Once the plaintiff shows an inability to perform past work, the burden then shifts to the Commissioner to show the plaintiff’s ability to engage in other work existing in significant numbers in the national economy.

II. JUDICIAL REVIEW Section 405(g) provides in relevant part that “[t]he findings of the

Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.”

(g). Judicial review of the ALJ’s decision is thus limited to determining whether the ALJ’s findings are supported by substantial evidence or based upon legal error. Clifford v. Apfel,

(7th Cir. 2000); Stevenson v. Chater,

(7th Cir. 1997). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales,

(1971); Skinner v.

Astrue,

(7th Cir. 2007). An ALJ’s decision should be affirmed even in the absence of overwhelming evidence in support: “whatever the meaning of ‘substantial’ in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence is . . . ‘more than a mere scintilla.’ . . . It means – and means only – ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Biestek v. Berryhill,

, (2019) (citations omitted). This Court may not substitute its judgment for that of the Commissioner by reevaluating facts, reweighing evidence, resolving conflicts in evidence, or deciding questions of credibility. Skinner,

; see also

Elder v. Astrue,

(7th Cir. 2008) (holding that the ALJ’s decision must be affirmed even if “‘reasonable minds could differ’” as long as “the decision is adequately supported”) (citation omitted). However, even under this relatively lenient standard, an ALJ is not absolved of her duty to support the decision with record evidence. See Meuser v. Colvin,

(7th Cir. 2016) (“We will uphold an ALJ’s decision if it is supported by

substantial evidence, but that standard is not satisfied unless the ALJ has adequately supported his conclusions.”). The ALJ is not required to address “every piece of evidence or testimony in the record, [but] the ALJ’s analysis must provide some glimpse into the reasoning behind her decision to deny benefits.” Zurawski v. Halter,

(7th Cir. 2001). In cases where the ALJ denies benefits to a plaintiff, “he must build an accurate and logical bridge from the evidence to his conclusion.” Clifford,

. The ALJ must at least minimally articulate

the “analysis of the evidence with enough detail and clarity to permit meaningful appellate review.” Briscoe ex rel. Taylor v. Barnhart,

(7th Cir. 2005); Murphy v. Astrue,

(7th Cir. 2007) (“An ALJ has a duty to fully develop the record before drawing any conclusions . . . and must adequately articulate his analysis so that we can follow his reasoning . . . .”); see Boiles v. Barnhart,

(7th Cir. 2005). Where conflicting evidence would allow reasonable minds to differ, the responsibility for determining whether a plaintiff is disabled falls upon the Commissioner, not the court. See Herr v. Sullivan,

(7th Cir.

1990). However, an ALJ may not “select and discuss only that evidence that favors his ultimate conclusion,” but must instead consider all relevant evidence. Herron v. Shalala,

(7th Cir. 1994). III. ANALYSIS Plaintiff argues that the ALJ’s decision was in error for several reasons, including: (1) the ALJ erred in assessing Plaintiff’s RFC; (2) the ALJ erred in

evaluating Dr. Byrne’s medical opinion; and (3) the ALJ improperly relied on medical improvement and conservative treatment and did not properly address Plaintiff’s activities of daily living. Plaintiff also argues that the ALJ’s decision is constitutionally defective. In advancing his first argument, Plaintiff contends, inter alia, that the ALJ failed to adequately account for his expressed need to lie down during the day to alleviate pain and fatigue. (Pl.’s Br. at 6-7.) Pertinent to that topic, in his decision,

the ALJ noted Plaintiff’s testimony that he lies down “approximately 5-6 hours a day.” (R. 20) The ALJ further noted Plaintiff’s testimony that “he lies flat on the floor with no TV or lights on” to cope with his headaches and dizziness. (Id. at 19.) The ALJ also noted Plaintiff’s reports that “[a]fter standing for 30-60 minutes . . . he has pain, needs to move and will eventually go home to lie down.” (Id. at 20.) Beyond these notations, the ALJ’s decision does not address Plaintiff’s asserted need to lie down in any manner. “An ALJ errs when the RFC fails to account for a claimant’s allegation that

he needs to lie down.” Tincher v. Colvin, No. 13 C 8410,

, at *25 (N.D. Ill. July 14, 2015) (citation omitted). Accordingly, in completely failing to address Plaintiff’s allegations concerning his need to lie down during the day, the ALJ erred. See Eula M. v. Berryhill, No. 17 C 6669,

, at *23 (N.D. Ill. May 20, 2019) (“The ALJ was required to explain either (1) why plaintiff’s testimony could not be accepted or (2) why she could work on a full-

time basis despite her alleged need to lie down for three hours when she experienced migraines.”). The ALJ’s failure to account for Plaintiff’s asserted need to lie down requires that this matter be remanded. See Gibson-Jones v. Chater, No. 96-2626,

, at *13 (7th Cir. Apr. 14, 1997) (“We therefore . . . remand the case to the ALJ so that he may identify more specific medical evidence supporting his rejection of [the claimant’s] testimony that she needed to lie down daily. The ALJ must more specifically articulate his reasons for believing that

[the claimant’s] testimony is contradictory and inconsistent. If the ALJ is unable to articulate more specific reasons, he must award [the claimant] the relief she requests because, if she needs to lie down daily, she will be unable to perform even sedentary work with a sit/stand option.”); Wesolowski v. Colvin, No. 15 C 8830,

, at *11 (N.D. Ill. Oct. 18, 2016) (“The ALJ also failed to explain why he did not include Wesolowski’s need to lie down intermittently. On remand, the ALJ should expand the record if necessary in order to properly determine Wesolowsi’s RFC.”). Based on its conclusion that remand is necessary for the above reasons, the Court need not explore in detail the remaining errors claimed by Plaintiff. The Court emphasizes that the Commissioner should not assume these issues were omitted from the opinion because no error was found. Indeed, the Court admonishes the Commissioner that, on remand, special care should be taken to ensure that Plaintiffs residual functional capacity is properly derived, the medical opinion evidence is properly assessed, and Plaintiff's improvement, treatment, and daily activities are properly considered. The Court does not reach Plaintiff's constitutional argument. CONCLUSION For the foregoing reasons, Plaintiff's motion to reverse the Commissioner’s decision [Doc. No. 14] is granted in part, and the Commissioner’s cross-motion for summary judgment [Doc. No. 18] is denied. The Court finds that this matter should be remanded to the Commissioner for further proceedings consistent with this Order.

SO ORDERED. ENTERED:

DATE: February 6, 2023 □ HON. MARIA VALDEZ United States Magistrate Judge