United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER 
I. SCHENTCIER United States Magistrate Judge.
Anne Bereckis ("plaintiff or "Ms. Bereckis")
has filed a motion for summary judgment seeking reversal or
remand of the final decision of the Commissioner of Social
Security ("Commissioner") denying her claim for
Disability Insurance Benefits ("DIB") (doc. # 16:
Pl.'s Mem, in Support of Sum. J.). The Commissioner has
filed her own motion seeking affirmance of the decision
denying benefits (doc. # 23: Def.'s Mot. for Sum. J.).
For the following reasons, Ms. Bereckis' motion for
remand is granted and the Commissioner's motion is
March 7, 2013, Plaintiff filed a claim for DIB, claiming that
she became disabled on February 15, 2013 because of
pseudomeningocele,  sacral cysts, sacral erosion, coccydynia,
pelvic floor dysfunction, intermittent blurred vision,
degenerative disk disease, status post spinal surgery, left
hemifacial spasm, blepharospasm,  anxiety and depression (R.
39, 185, 212). Her claim was denied initially on August 9,
2013 and on appeal on March 24, 2014 (R. 49, 63). Ms.
Bereckis, represented by counsel, participated in a hearing
before an Administrative Law Judge ('ALJ") on
November 19, 2014; a vocational expert ("VE") also
testified (R. 16). On March 25, 2015, the ALJ issued an
opinion finding that plaintiff was not disabled (R. 81). The
Appeals Council upheld the ALJ's determination, making it
the final opinion of the Commission (R.l-3). See 20
C.F.R. § 404.981; Shauger v. Astrue, 675 F.3d
690, 695 (7th Cir. 2012).
makes four arguments in favor of remand: (1) the ALJ did not
identify an evidentiary basis for her residual functional
capacity ("RFC") determination; (2) the ALJ
wrongfully substituted her opinion for the medical opinion of
the state agency psychological consultant; (3) the Appeals
Council erred in failing to remand the case based on new and
material evidence submitted after the ALJ's decision; and
(4) the ALJ's credibility determination was flawed.
Because we remand on the ground that the ALJ did not provide
an adequate basis for her RFC, we will set forth only that
evidence of record that is relevant to that claim.
Bereckis is a college graduate who has an MBA in Information
Systems (R. 19). At the time of her alleged onset date, Ms.
Bereckis worked as a data processing manager, a sedentary job
(R. 35, 213), and had been telecommuting from home for at
least two years (R. 228). Ms. Berkeckis quit her job in
February 2013, citing severe back pain as the reason (R. 20).
than her alleged mental health impairments, the majority of
Ms. Bereckis' health issues - including the one
implicated by the ALJ's allegedly faulty RFC - concern
problems with her back and spine. Ms. Bereckis has had three
spinal surgeries, two in 2005 to repair a pseudomeningocele
and one in 2010 to fuse her spine in the cervical (C-5 and
C-6) region (R. 855-56). The medical record shows that
between 2005 and 2013, Ms. Bereckis regularly complained of
lumbar, cervical and sacral pain at medical appointments with
her spine surgeon, Edward Mkrdichian, M.D., and her
internist, David Labotka, M.D. (R. 341, 355, 369, 402, 405,
409, 856, 862, 867, 874). In 2011, Ms. Bereckis began
complaining to her doctors that her back and sacral pain was
so severe that she was no longer able to sit long enough to
do her job (R. 20, 228, 341, 461). Because of the pain she
experienced from sitting, Ms. Bereckis stood during parts of
her hearing, during some of her visits to her primary care
doctor, and during her interview with the DDS field office
she visited to apply for benefits (R. 22, 209, 439). At the
hearing, Ms. Bereckis testified that she lies down for one to
two hours every afternoon to get relief from back pain, and
that after her 2010 back surgery, she initially worked from a
supine position with a tilted computer desk, but that set-up
caused other problems with her back and so she had to
discontinue it (R. 24, 29).
medical evidence reflects Ms. Bereckis' complaints about
several different types of back pain, apparently stemming
from different causes. Specifically, in addition to
complaining of sacral, lumbar and sometimes cervical pain
caused by prolonged sitting and/or working at her computer,
Ms. Bereckis also reported to Dr. Labotka and Dr. Mkrdichian
at other appointments that she had pain in her upper back,
shoulders, and neck (R. 402, 872, 878). At times, these
various incidences of pain followed some sort of back yard
physical activity such as raking leaves, replanting, hedge
trimming, or sanding outdoor chairs (R. 26, 878).
Ms. Bereckis' final spinal surgery in 2010, both Dr.
Mkrdichian and Dr. Labotka recommended conservative treatment
for her pain, consisting primarily of prescription pain
medication (R. 861-62). Ms. Bereckis underwent an MRI in 2013
which Dr. Mkrdichian compared to her 2010 MRI, finding that
the 2013 MRI showed mild degenerative changes from 2010, but
that overall, it was grossly within normal limits
(Id.). A treatment note from Dr. Mkrdichian from
April 2013 stated that, although Ms. Bereckis' recent MRI
revealed several sacral cysts, he did not recommend surgery
at that time (R. 856).
found that Ms. Bereckis had the following severe impairments:
status post cervical spine surgery (2010), pseudomengocele
and surgery of the lumbar spine in 2005 and cyst of lumbar
spine, and hypertension with coronary artery disease (R. 70),
In her opinion, which followed the familiar five step process
for evaluating disability, the ALJ determined that Ms.
Bereckis had an RFC to perform sedentary work, except that
she could never climb ladders, ropes or scaffolding and no
more than occasional climbing of ramps and stairs, balancing,
stooping, bending, twisting, kneeling, crouching or crawling,
ALJ also added a "sit/stand" option to her RFC
determination, finding that Ms. Bereckis must be allowed to
stand for 1-2 minutes after sitting for 45 minutes. Finally,
Ms. Bereckis had to avoid concentrated exposure to work
hazards, such as unprotected heights and dangerous moving
machinery, and avoid concentrated exposure to uneven surfaces
making her RFC determination, the ALJ explained that she was
limiting Ms. Bereckis to sedentary work because Ms. Bereckis
consistently reported feeling pain after physical activity
such as yardwork and gardening (R. 79). The ALJ gave
"good weight" to the opinions of the two
non-examining DDS doctors, Drs. Wabner and Kim, who reviewed
the medical record (R. 80). Specifically, Dr. Wabner opined
that Ms. Bereckis could occasionally lift up to ten pounds,
could stand and/or walk for two hours in an eight hour day
and sit with normal breaks for six hours in an eight hour day
(R. 45-46). On reconsideration, Dr. Kim assessed Ms. Bereckis
as having the same RFC, including the ability to stand and/or
walk for two hours and sit for six hours in an eight hour day
(R. 59). In his RFC, Dr. Kim answered "yes" to the
question of whether there was a source opinion that was more
restrictive than the one he assessed, but did not complete
the portion of the form that asked how the two RFCs differed;
he also did not identify the source of the conflicting RFC,
but we assume he was referring to the opinion of Dr. Labotka,
as his is the only other medical opinion in the record that
opines as to Ms. Bereckis' RFC (R. 61).
crediting the opinions of the non-treating doctors, the ALJ
gave "little weight" to the RFC opinion of Dr.
Labotka, who opined on March 7, 2014 that Ms. Bereckis was
able to stand or walk for one to two hours and sit for less
than one hour in an eight hour work day, and to lift no more
than five pounds occasionally (R. 80, 107-110). In explaining
her rejection of Dr. Labotka's opinion, the ALJ stated
that "the course of treatment pursued by the doctor has
not been consistent with what one would expect if the
claimant were truly disabled, as the doctor has reported.
Treatment has consisted of medication. There is no evidence
of steroid injection or surgery" (R. 80). The ALJ also
noted that Dr. Labotka opined that Ms. Bereckis could sit for
less than an hour in an eight hour work day, but that
claimant herself testified that she could sit for up to one
hour (Id.). Finally, the ALJ stated that Dr.
Labotka's RFC was inconsistent not only with Ms.
Bereckis' yard work and other ...