United States District Court, N.D. Illinois, Eastern Division
July 26, 2004.
HELEN L. MONTGOMERY Plaintiff,
JO ANNE B. BARNHART, Acting Commissioner of Social Security Defendant.
The opinion of the court was delivered by: MICHAEL MASON, Magistrate Judge
REPORT AND RECOMMENDATION
Plaintiff, Helen L. Montgomery ("Montgomery" or "plaintiff"),
has brought a motion for summary judgment seeking judicial review
of the final decision of defendant Barnhart, who denied
Montgomery's claim for disability insurance benefits ("DIB") and
Supplemental Insurance Income ("SSI") under the Social Security
Act ("Act"), 42 U.S.C. § 216, 223, 1614(a)(3). Defendant
Barnhart has filed a cross motion for summary judgment asking
that we uphold the decision of the Administrative Law Judge
("ALJ"). We have jurisdiction to hear this matter pursuant to
42 U.S.C. § 405(g). The District Court has referred the matter to us
and for the following reasons, we recommend that the District
Court remand the case back to the ALJ for further proceedings
constant with this opinion.
On February 23, 1999, Montgomery filed concurrent applications
for DIB and SSI alleging a disability onset date of September 15,
1998. (R. 90-92, 351-35). The Social Security Administration
("SSA") initially denied Montgomery's applications on April 22,
1999 and Montgomery filed a timely request for a hearing. (R.
36-39, 355-58). Administrative Law Judge ("ALJ") Robert Karmgard
conducted a hearing on February 17, 2000. (R. 382-459). On
February 25, 2000, the ALJ ordered the case remanded to the SSA's state agency
for further development of Montgomery's mental impairment. (R.
32-34). On May 19, 2000, the state agency denied Montgomery's
applications. (R. 67-69, 364-66). A week later, Montgomery again
filed a timely request for a hearing. (R. 70). On December 29,
2000, following a de novo hearing, ALJ Karmgard denied
Montgomery's applications for disability benefits finding that
Montgomery was able to perform a limited range of light work and
was thus, not disabled. (R. 28.) See, 20 C.F.R. § 404.1567,
416.967. The Appeals Council denied Montgomery's request for
review of the ALJ's decision on July 24, 2002, making the ALJ's
decision the final decision of the Commissioner of Social
Security. See Zurawski v. Halter, 245 F.3d 881 (7th Cir. 2001);
Herron v. Shalada, 19 F.3d 329 (7th Cir. 1994).
Montgomery was 51 years-old at the time of the alleged
disability and 53 years-old when ALJ Karmgard rendered his
decision. At all relevant times, Montgomery was "approaching
advanced age." See 20 C.F.R. § 404.1563(d). Montgomery had a
tenth grade education and prior work experience in "picking and
packing" at a warehouse. (R. 127, 122). Montgomery also worked at
a variety of jobs through a temporary agency. (R. 396-403).
At the hearing, Montgomery testified that her disability
started on September 15, 1998, when she experienced her first
blackout. (R. 394-96). She stated that she still experiences
blackouts about twice a week. Id. Montgomery testified that she
believes the blackouts began after she fell down basement stairs
and injured her head. (R. 415). She stated that she experiences
headaches two to three times a week, each lasting between 40
minutes and an hour. (R. 478). Despite medication, Montgomery
experienced approximately 12 to 13 seizures in the past year,
which she says prevent her from going out alone. (R. 412). She also stated that she has daily back pain that
radiates down to her knee cap. Sometimes Montgomery has to
elevate her legs with two pillows to help alleviate the pain. (R.
Plaintiff's Medical Examinations
On March 25, 1999, Dr. Enacopol examined Montgomery at the
request of the SSA. (R. 162-66). Montgomery complained of back
pain, dizziness and shortness of breath with exercise, chest
pressure, headaches, and fainting spells. (R. 162). Examination
of Montgomery's muscoskeletal system revealed no evidence of
deformities, swelling, or redness. (R. 164). However, Montgomery
had limited motion in her lumbosacral spine, secondary to pain.
Id. Her motor power was normal on the right side, but
diminished to 4/5 on the left side, secondary to pain. (R. 165).
Dr. Enacopol diagnosed Montgomery as having osteoarthritis of the
back, uncontrolled hypertension, a history of heart arrhythmia,
and headaches. Id.
On April 13, a state agency physician reviewed Montgomery's
medical records and completed a physical Residual Functional
Capacity ("RFC") Assessment. (R. 169-76). The doctor concluded
that Montgomery could perform light work with occasional postural
activities such as climbing, stooping, kneeling, and crouching.
Id. Specifically, the doctor found that plaintiff could not
lift more than twenty pounds occasionally and ten pounds
frequently. She could only sit, stand and/or walk 6 hours in an
8-hour workday and her ability to push and/or pull was unlimited.
On April 28, Montgomery went to the Cook County Hospital
Emergency Room ("ER") complaining of daily headaches for the past
two months and two seizures the night before. (R. 180, 218-23).
One month later, Dr. Dean Thomas Velis examined Montgomery at the
request of the SSA. (R. 188-90). Montgomery told Dr. Velis that her seizures began in March, 1999
and that her most recent seizure occurred that morning. (R. 188).
Dr. Velis reported that Montgomery was overweight and her
symptoms were consistent with grand mal seizures. (R. 190).
However, examinations of Montgomery's back and muscoskeletal and
neurological systems were normal. (R. 189-90).
A second state agency physician reviewed Montgomery's medical
records and completed an RFC assessment on July 7, 1999. (R.
193-200). That doctor found that although Montgomery did not have
any exertional limitations, she could never climb ladders, ropes,
or scaffolds. (R. 195). The doctor also opined that due to
plaintiff's seizures, she should avoid hazards like machinery and
heights. The next day, Montgomery was treated in the ER for
seizure activity. (R. 224).
On August 20, Montgomery went to the neurology department of
the University of Illinois at Chicago ("UIC") complaining of
seven episodes of lightheadedness and a possible syncope with
convulsion. (R. 210-11). Montgomery admitted to head trauma as a
result of being hit by her husband (R. 210). The neurologist
reported mild facial asymmetry. Id.
A September 21 Electroencephalograph ("EEG") revealed a mild
slow wave abnormality on the left temporal area of the brain,
indicating a slight neurophysiological disturbance within that
region. (R. 212). However, no epileptiform discharges were
detected. Id. A physical exam one week later was normal, but a
final report from the UIC neurology department indicated epilepsy
with possible complex partial seizures. (R. 208). On September
30, Montgomery went to the UIC general medicine department
complaining of heart palpitations. (R. 239). The doctor indicated
that the pain was not likely related to any cardiac problems. (R.
On December 5, chiropractor Kevin J. Regan examined Montgomery.
(R. 228-30). Dr. Regan observed that Montgomery was obese with
restricted movements. (R. 228). He found sacroiliac disc
displacement, lumbosacral spondylolisthesis, and facet syndrome.
(R. 229). After treating Montgomery twice a week for a month, Dr.
Regan noted her poor prognosis. (R. 230). Dr. Regan's report
indicated that Montgomery's RFC was sub-sedentary and she
suffered from seizures, hypertension, and depression. (R.
On April 26, 2000, Dr. Margaret Stronska examined Montgomery at
the request of the SSA. (R. 253-55). Upon examination, Dr.
Stronska found no objective findings to explain Montgomery's pain
complaints and that she was not regularly taking her seizure
medication. (R. 254, 256).
On May 5, a third state agency physician completed a physical
RFC. The doctor did not find any exertional limitations, but did
note that plaintiff should never climb ladders, ropes or
scaffolds and should avoid concentrated exposure to hazards,
including machinery and heights.
One month later, Montgomery visited an orthopedic spine clinic
complaining of lower back and right knee pain. (R. 304-05). An
examination showed that Montgomery was neurovascularly intact,
had normal reflexes and strength in her lower extremities, and
had a limited range of motion in her lower back. (R. 304). X-rays
revealed mild degenerative changes in her right knee and mild to
moderate degenerative changes of her spine. (R. 305). Dr. Regan
recommended that Montgomery schedule both an MRI and additional
x-rays. Id. Montgomery's June 26 physical examination was
normal and Dr. Daniel Heir reported that her seizures were better
controlled. (R. 338).
On April 26, 2000, the same day Dr. Stronska conducted a
physical examination, Dr. Prieto performed a psychiatric
evaluation of Montgomery at the SSA's request. (R. 257-60).
Montgomery was well dressed, but complained of depression, nervousness, and forgetfulness. (R. 257). Montgomery
also reported that her boyfriend was physically and mentally
abusive, but "she [had] no place else to go." Id. Plaintiff
stated that sometimes she wishes she were dead, but she did not
have any suicidal or homicidal plans. Upon examination,
Montgomery was oriented and did fairly well with immediate memory
testing. (R. 259). Montgomery was diagnosed with mild reactive
depression, mild generalized anxiety disorder without panic
attacks, and severe marital problems. (R. 260). Dr. Prieto opined
that Montgomery's prognosis was fair with treatment. Id.
On May 8, a state agency psychologist reviewed Montgomery's
medical records and completed a mental RFC assessment. The
psychologist concluded that Montgomery had the mental capacity to
perform simple tasks, and had slight restrictions on her daily
living activities, slight difficulties in maintaining social
functioning, but seldom experienced deficiencies of
concentration, persistence, or pace. (R. 281).
Dr. Rosenthal, Montgomery's treating psychiatrist, saw her on
May 30 for a diagnostic evaluation. (R. 294-98). Montgomery
reported that over the past few months she experienced frequent
crying episodes and "a lot" of her emotional stress was related
to her abusive boyfriend. (R. 294). Upon examination, Montgomery
was well-groomed, cooperative, made good eye contact, and spoke
at a normal rate and tone. (R. 297). Montgomery displayed a
logical thought process and fair insight and judgment. Id. Dr.
Rosenthal diagnosed Montgomery with major depression, but found
that she showed improvement because of her medication and therapy
sessions. (R. 298, 314). On October 6, Dr. Rosenthal opined that
Montgomery would have difficulty working at a regular job on a
sustained basis. (R. 349). Elaborating, he stated that "[w]ith
the patient's current housing situation and finances, I think she
would have problems at a regular job. When she gets a stable housing
situation, then I think a sheltered workshop with a supportive
environment could help patient. Then she could be gradually
streamlined into [a] regular job and have the hours increased as
patient progresses."*fn1 Id.
Standard of Review
We must affirm the ALJ's decision if it is supported by
substantial evidence and free from legal error.
42 U.S.C. § 405(g); Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
Substantial evidence is more than a scintilla of evidence and is
"such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Diaz v. Chater, 55 F.3d 300,
305 (7th Cir. 1995) (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)). We must consider the entire administrative
record, but we will not "reweigh evidence, resolve conflicts,
decide questions of credibility, or substitute our own judgment
for that of the Commissioner." Lopez v. Barnhart, 336 F.3d 535,
539 (7th Cir. 2003) (quoting Clifford v. Apfel, 227 F.3d 863,
869 (7th Cir. 2000)). We will conduct a "critical review of
the evidence" and will not let the Commissioner's decision stand
"if it lacks evidentiary support or an adequate discussion of the
issues." Id. (quoting Steele, 290 F.3d at 940.). The ALJ
"must build an accurate and logical bridge from the evidence to
[his] conclusion," however he need not discuss every piece of
evidence in the record. Dixon v. Massanari, 270 F.3d 1171, 1176
(7th Cir. 2001).
A person is disabled under the Act if "he or she has an
inability to engage in any substantial gainful activity by reason
of a 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." 42 U.S.C. § 423(d)(1)(A). In determining
whether the claimant is disabled, the ALJ must consider the
following five-step inquiry set forth in
20 C.F.R. § 416.1920(a)-(f): "(1) whether the claimant is not currently
employed, (2) whether the claimant has a severe impairment, (3)
whether the claimant's impairment is one that the Commissioner
considers conclusively disabling, (4) if the claimant does not
have a conclusively disabling impairment, whether she can perform
her past relevant work, and (5) whether the claimant is capable
of performing any work in the national economy." Dixon, 270
F.3d at 1176. Under this evaluation, "an affirmative answer leads
either to the next step, or, on [s]teps 3 and 5, to a finding
that the claimant is disabled. A negative answer at any point,
other than [s]tep 3, ends the inquiry and leads to a
determination that the claimant is not disabled." Zurawski, 245
F.3d at 886. However, if the claimant reaches step 5, "the
burden shifts to the ALJ to establish that the claimant is
capable of performing work in the national economy." Id.
Steps 1 through 3 of the ALJ's analysis are not contested. ALJ
Karmgard found that plaintiff was not currently gainfully
employed; suffered from severe impairments including a seizure
disorder, degenerative disease of the right knee and lumbar spine
and depression; and that those conditions failed to meet or equal
any section of the listing of impairments. At step 4, the ALJ
found that Montgomery had the RFC:
to perform the requirements of work except for:
lifting/carrying up to 20 pounds more than
occasionally or 10 pounds more than frequently;
sitting, standing or walking, with normal breaks for
more than 6 hours each in an 8-hour day; performing
activities such as balancing, stooping, crouching,
kneeling, and crawling more than occasionally;
climbing ropes, scaffolds, and ladders; working in
settings containing any respiratory irritants at
concentrated levels; working with or near exposed
unprotected moving parts or dangerous moving
machinery; working near unprotected heights or
excavations; operating a moving or motorized vehicle;
understanding, remembering, and/or carrying out
detailed and complex work instructions and/or tasks;
and will be involuntarily offtask for as long as 15 minutes on an average of 2
unscheduled occasions per month. (R. 28).
ALJ Karmgard concluded that with the RFC outlined above,
Montgomery could perform limited light work. He also determined
that she could not perform her past relevant work, requiring him
to proceed to step 5 analysis.
In evaluating plaintiff's claim at step 5, the ALJ considered
the testimony of VE Radke, who opined that based on the
hypotheticals the ALJ posed to him concerning plaintiff's
impairments, she could perform a significant number of jobs
currently existing in the economy. Specially, the VE found that
plaintiff could work as a grader/sorter, maid, stock clerk or in
First, plaintiff argues that the ALJ's RFC determination is not
supported by substantial evidence. We agree. As stated above, the
ALJ must "build an accurate and logical bridge from the
evidence to [his] conclusion. . . ." Blakes ex rel Wolfe v.
Barnhart, 331 F.3d 565, 569 (7th Cir. 2003) (emphasis added). He
must "sufficiently articulate his assessment of the evidence to
`assure us that [he] considered the important evidence . . . [and
to enable] us to trace the path of [his] reasoning.'" Carlson v.
Shalala, 999 F.2d 180, 181 (7th Cir. 1993) (per curium) (quoting
Stephens v. Heckler, 776 F.2d 284, 287 (7th Cir. 1985).
Accordingly, the record must contain evidence to support the
ALJ's findings and the ALJ must articulate the basis for his
findings. Steele, 290 F.3d at 941.
ALJ's Stated Limitations
At step 2, ALJ Karmgard found that plaintiff suffered from,
inter alia, the severe impairments of depression and a seizure
disorder. Then, as part of his RFC determination at step 4, he
concluded that plaintiff required an accommodation to be
"involuntarily off-task for as long as 15 minutes on an average
of 2 unscheduled occasions per month," and that she could not
understand, remember, and/or carry out "detailed and complex work
instructions and/or tasks." (R. 21). However, the ALJ failed to specify
whether these limitations were due to plaintiff's seizure
disorder, a physical impairment, or her depression, a mental
The ALJ also failed to articulate the basis for his findings.
Specifically, the ALJ did not cite to any evidence in the record,
medical or otherwise, that supports his conclusion that plaintiff
would be involuntarily off-task twice a month for up to 15
minutes. The ALJ did provide a brief synopsis of plaintiff's
hearing testimony and outlined some of the medical evidence in
the administrative record. However, he failed to specifically
articulate the basis for his off-task conclusion. The ALJ stated
that neurologist notes from September, 1999, through April, 2000
reflect reported seizures at a maximum of twice a month and that
a consultative examiner noted complaints of seizures twice a
month. However, he failed to build a bridge from that evidence to
his conclusion. The ALJ never stated that his off-task
accommodation was based on plaintiff's seizure disorder. There is
also evidence in the record to support a finding that plaintiff
suffers from head-aches, blackouts and dizzy spells, all of which
could cause her to be off-task at work. Furthermore, the ALJ
found that plaintiff was depressed, which could lead to her being
off-task. We cannot guess which ailment or combination of
ailments the ALJ believed would cause plaintiff to be off-task.
See Embry v. Barnhart, 2003 WL 21704425, *8 (N.D.Ill. July 18,
2003) (if the court cannot identify the evidence the ALJ relied
upon to reach his RFC determination or the reasons behind it, the
ALJ has failed to build the requisite logical bridge).
The ALJ also failed to provide support for this finding that
plaintiff's off-task occasions would last no more than 15
minutes. A review of his opinion does not reveal any evidence to
support such a durational finding, and we cannot speculate as to
the basis for that determination. Furthermore, the ALJ did not provide support for his finding that Montgomery could not
understand, remember, and/or carry out "detailed and complex work
instructions and/or tasks." The record does contain a mental RFC
assessment from an SSA doctor in which the doctor finds that
Montgomery would be moderately limited in her ability to
understand, remember and carry out detailed instructions.
However, the ALJ failed to reference that RFC in his opinion.
Accordingly, the case must be remanded to the ALJ for further
elaboration as to the basis for his findings regarding
plaintiff's off-task occasions and the limitations on the types
of tasks or instructions she can carry out. The ALJ must specify
whether these limitations are due to plaintiff's physical or
mental impairments, and provide a basis for his findings as to
the length and frequency of her off-task occasions.
Dr. Rosenthal's Findings
Next, plaintiff argues that the ALJ mischaracterized and
impermissibly dismissed the findings of Dr. Rosenthal,
plaintiff's treating physician. Dr. Rosenthal began treating
plaintiff on a weekly basis in late May of 2000. On October 6,
2000, he completed a mental impairment questionnaire. In the
questionnaire, Dr. Rosenthal found that plaintiff would have a
difficult time working at a regular job on a sustained basis. (R.
349). Specifically, he opined:
[w]ith the patient's current housing situation and
finances, I think she would have problems at a
regular job. When she gets a stable housing
situation, then I think a sheltered workshop with a
supportive environment could help patient. Then she
could be gradually streamlined into [a] regular job
and have the hours increased as patient
In his opinion, ALJ Karmgard misstated Dr. Rosenthal's findings.
The ALJ concluded "[t]hough [Dr. Rosenthal] opines as to
potential difficulty sustaining a regular job and that a
sheltered work environment would help the claimant, these
opinions appear to be proffered in association with the
claimant's reported domestic, housing and financial circumstances." (R. 25). The ALJ
apparently concluded that the work limitations Dr. Rosenthal
found, namely plaintiff's need for a sheltered work environment
and a gradual streamline into a regular job based on her
progress, were based on her domestic, housing and financial
circumstances and, therefore, not related to her depression.
The ALJ's characterization of Dr. Rosenthal's findings is not
accurate. As stated above, the ALJ must not only build a logical
bridge from the evidence to his conclusion, but that bridge must
also be accurate. If the factual basis for the ALJ's conclusion
is not an accurate representation of the record, the conclusion
cannot be sustained. See Embry, 2003 WL 21704425, *7 (N.D.Ill.
July 18, 2003). The ALJ's conclusion that Dr. Rosenthal's
limitations were based, even in part, on plaintiff's housing
situation is a misstatement. Dr. Rosenthal opined that even
after plaintiff finds a stable housing situation, a sheltered
workshop could help. He also concluded that after she finds a
stable housing situation she could be gradually streamlined into
a regular job, based on her progress. Accordingly, contrary to
the ALJ's conclusion, Dr. Rosenthal's limitation could not
possibly be based on plaintiff's housing situation.
Additionally, Dr. Rosenthal did not address, one way or the
other, whether these limitations were related to plaintiff's
mental impairments. He did specifically mention plaintiff's
current housing and financial situation while omitting any
mention of her depression. However, alone, that statement is not
sufficient evidence for the ALJ to conclude that the doctor's
findings were not based, at least in part, on plaintiff's mental
impairment. See Jarmon v. Barnhart, 2004 WL 742080, *8
(N.D.Ill. Apr. 1, 2004) (remanding the case because the ALJ did
not address plaintiff's history of psychological problems, but
merely dismissed them as being secondary to his addiction
disorders) (citing Myers v. Charter, 1997 WL116805, *13 (N.D.
Ill. 1997) ("remanding the case because the ALJ did not provide an explanation for dismissing the claimant's
mental impairment claim, which, according to the district court,
meant that the ALJ made an impermissible medical determination").
Further, "[m]ore weight is generally given to the opinion of a
treating physician because of his greater familiarity with the
claimant's condition and circumstances." Clifford v. Apfel,
227 F.3d 863, 870 (7th Cir. 2000). The ALJ cannot simply disregard
the findings of plaintiff's treating physician by concluding that
they are a result of her domestic, housing and financial
situation, rather than her mental impairments. The ALJ correctly
noted that Dr. Rosenthal found Montgomery's functional
limitations to be relatively slight, noting that the restrictions
on Montgomery's daily activities and her ability to maintain
social functioning were slight and that she would seldom have
deficiencies in concentration, persistence and pace. However,
those functional limitation findings do not provide sufficient
support for disregarding Dr. Rosenthal's conclusion that
Montgomery would have a difficult time working at a regular job
on a sustained basis and would benefit from a sheltered workshop.
According to the VE, had the ALJ concluded that based on
plaintiff's functional limitations she required a sheltered
workshop, she could not work as a grader/sorter, maid, stock
clerk or in food preparation, the jobs the ALJ ultimately found
that she could perform at step 5 of his analysis. In fact, the VE
found that a sheltered workshop requirement would essentially
eliminate the entire unskilled, competitive work base. Because,
if adopted, the findings of plaintiff's treating physician could
affect the ALJ's ultimate conclusion that plaintiff was not
disabled under the Act, on remand the ALJ should better
articulate the basis for his decision to disregard Dr.
Rosenthal's finding that plaintiff could benefit from a sheltered
In addition to finding that plaintiff would have difficulty
working at a regular job, Dr. Rosenthal also found that Montgomery suffered from sleep
and mood disturbances, emotional liability, pervasive loss of
interests, feelings of guilt/worthlessness, difficulty thinking
or concentrating, oddities of thought and perception, perceptual
disturbances, decreased energy, and pathological dependence or
passivity. Further, contrary to the ALJ's finding, Dr. Rosenthal
noted Montgomery experienced recurrent panic attacks. (R. 347)
Based on this evidence, the ALJ did not adequately support his
decision to disregard parts of the mental impairment
questionnaire Dr. Rosenthal completed and his finding that
"significant and debilitating limitations [did] not appear to
arise out of [plaintiff's] mental impairment itself." On remand,
the ALJ must better articulate the basis for his findings
regarding the functional limitations, if any, arising from
plaintiff's mental impairments.
Medical Expert Consultation
Plaintiff also argues that the ALJ committed legal error in
failing to obtain the opinion of a medical expert to aid in
evaluating the evidence in the record. Montgomery contends that
in a complex case such as this, with a number of impairments, a
medical expert's testimony is necessary. She further argues that
because the ALJ failed to obtain such testimony, he was relying
on his own opinion and playing amateur doctor, which constitutes
legal error. As stated above, the ALJ did not provide a logical
bridge from the evidence in the record to his conclusion that
plaintiff's impairments would result in her being off-task no
more than fifteen minutes twice a month. Now, plaintiff argues
that in order to build that bridge, the ALJ needed the assistance
of a medical expert, and without such assistance, his findings
amount to a "hunch" and "rank conjecture." See Wilder v.
Chater, 64 F.3d 335, 338 (7th Cir. 1995).
We agree with plaintiff that this is a complex case, and based
on the evidence in the record, the ALJ could have benefitted from
the testimony of a medical expert. See Green v. Apfel, 204 F.3d 780, 781 (7th Cir.
2000). The ALJ found that plaintiff had both physical and mental
impairments that limited her ability to work. However, there was
no medical evidence in the record addressing the relationship of
those impairments and their combined effect on plaintiff's
ability to work. Additionally, the ALJ disregarded some of the
findings of plaintiff's treating physician, Dr. Rosenthal. Then,
on his own, the ALJ concluded that plaintiff's mental and
physical impairments would not cause her to be off-task more than
15 minutes twice a month. This is a hunch and conjecture, which
is not allowed and necessitates a remand On remand, the ALJ
should consult a medical expert to ascertain what functional
limitations plaintiff's combined impairments impose.
Finally, in her reply brief, plaintiff agues that the ALJ
failed to adequately support his finding that plaintiff's hearing
testimony was not "fully credible." We need not address
plaintiff's credibility argument because it was raised for the
first time in her reply brief. Arguments raised for the first
time in a reply brief are waived. See Campbell v. Shalala,
988 F.2d 741, 745 n. 3 (7th Cir. 1993), see also Reynolds v. East
Dyer development Co., 882 F.2d 1249, 1253 n. 2 (7th Cir. 1989).
Because the ALJ failed to articulate the basis for his
findings, the court cannot provide a meaningful review of the
ALJ's ultimate conclusion that Montgomery is not disabled.
Accordingly, we recommend that the District Court GRANT
plaintiff's motion for summary judgment and DENY defendant's
motion, remanding the case to the ALJ for further proceedings
consistent with this opinion. Having said that, it is also
important to note that, at the end of the day the ALJ may be
correct about the extent of plaintiff's disability and she may
not be entitled to benefits. However, we cannot sustain that
conclusion based on the record before us.
Specific written objections to this report and recommendation
may be served and filed within 10 business days from the date
that this order is served. Failure to file objections with the
District Court within the specified time will result in a waiver
of the right to appeal all findings, factual and legal, made by
this Court in the report and recommendation. Lorentzen v.
Anderson Pest Control, 64 F.3d 327, 330 (7th Cir. 1995).