United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER 
I. SCHENKIER, UNITED STATES MAGISTRATE JUDGE
Social Security appeal, plaintiff, Dragan Kaplarevic, has
filed a motion seeking reversal and remand of the final
decision of the Commissioner of Social Security
("Commissioner") denying his application for
disability benefits (doc. # 9). The Commissioner has filed a
cross-motion asking the Court to affirm the decision (doc. #
18). For the reasons set forth below, we grant Mr,
Kaplarevic's motion to remand and deny the
Commissioner's motion to affirm.
December 14, 2012, Mr. Kaplarevic filed his application for
benefits, alleging an onset date of August 1, 2012. His date
last insured was December 31, 2014 (R. 13). The claim was
denied initially and on reconsideration. Mr. Kaplarevic
requested and received a hearing before an Administrative Law
Judge ("ALJ"), and on August 13, 2014, the ALJ
issued a written opinion denying him benefits (R. 11-21). The
Appeals Council upheld the ALJ's determination, making it
the final opinion of the Commissioner (R. 1-5). See
20 C.F.R. § 404.981; Shauger v. Astrue, 675
F.3d 690, 695 (7th Cir. 2012).
Kaplarevic presents only two grounds for remand: (1) that the
ALJ improperly gave "too little weight to Mr.
Kaplarevic's medical records at Union Health Services,
" which showed that Mr. Kaplarevic had degenerative disc
disease and back pain with related functional limitations;
and (2) that the ALJ erred in ignoring the hearing testimony
of the vocational expert ("VE") that Mr. Kaplarevic
would not be able to work if he was off task 30 percent of
the time, because his back pain would keep him off task at
least that often (doc. # 9: PL's Mot. at 3-4). Because
Mr. Kaplarevic contests only the ALJ's determination with
regard to his back impairment, we limit our review to the
facts related to that issue.
Kaplarevic received medical treatment primarily from
physicians at Union Health Services ("Union"). At
his March 14, 2013 physical, Mr. Kaplarevic complained of
left sciatica pain, pain when standing up or sitting down,
tenderness in the lower lumbar area and back pain (R.
521-22). His straight leg raise test was positive
bilaterally,  and the doctor diagnosed him with
"low back syndrome" (R. 522-23). In this and most
other doctors' reports in the record, Mr. Kaplarevic was
described as obese and weight loss was recommended (R. 523).
March 26, 2013, Debbie Weiss, M.D., performed an internal
medicine consultative examination on Mr. Kaplarevic for the
Bureau of Disability Determination Services
("DDS"). Mr. Kaplarevic told Dr. Weiss that he had
pain radiating from his low back to his right foot which
reached a level of 10 out of 10 and made it difficult for him
to sit or stand for more than 10 to 15 minutes or do
household chores that involved bending (R. 484). Massage
therapy and hydrocodone helped alleviate his pain
(Id.). Dr. Weiss observed that Mr. Kaplarevic had
decreased range of motion of the lumbosacral spine and
positive straight leg raising bilaterally due to pain, but no
limitation in the range of motion of any upper or lower
extremity (R. 485-87). She further noted that Mr. Kaplarevic
walked with a slight limp, bearing most of his weight on the
right lower extremity, and he had pain and spasm in his left
ankle and decreased sensation in both lower extremities to
mid-shin (R. 485-86). He could not balance on one leg, but
Mr. Kaplarevic had no difficulty getting on and off the
examination table, heel and toe walking, and doing the tandem
gait (Id.). An x-ray of Mr. Kaplarevic's lumbar
spine ordered the next day by DDS revealed degenerative disc
disease at ¶ 4-L5 and L5-S1 levels (R. 490).
15, 2013, Mr. Kaplarevic reported "episodic back pain,
pain into his legs, [and] calf pain" to a Union
physician; an examination revealed that Mr. Kaplarevic had a
slow gait, moderately diminished range of motion of the
lumbosacral spine in all directions and positive straight leg
raising (R. 720). The physician opined that Mr. Kaplarevic
had a herniated disc or lumbar spinal stenosis and
significant degenerative disc disease (Id.). The
doctor noted that Mr. Kaplarevic was "not a big
complainer" and "has had no real treatment, "
and prescribed physical therapy (Id.). Physical
therapy helped alleviate Mr. Kaplarevic's back pain, but
he still had back pain and tenderness and positive straight
leg raising tests in July 2013 (R. 508-10). In August 2013,
Mr. Kaplarevic asked for and received a referral for
additional physical therapy (R. 712).
hearing on June 30, 2014, Mr. Kaplarevic testified that he
suffered from severe pain in his back, ankle and calf, which
made it hard for him to get dressed and put his socks on (R.
37). His doctor prescribed pain medication, but he did not
take it for fear of addiction (R. 37-38). Mr. Kaplarevic
explained that he was sitting sideways at the hearing to take
pressure off his back (R. 45). He could stand up to 15
minutes, but needed to move about to keep the pressure off
his back (Id.).
presented a hypothetical to the VE of an individual who could
perform light work, needed to alternate between sitting and
standing for one to two minutes approximately every 30
minutes, could frequently balance, kneel and crouch, could
frequently or occasionally climb ramps and stairs,
could occasionally stoop and crawl; and needed to avoid
concentrated exposure to environmental and other hazards,
including unprotected heights, moving machinery and night
driving (R. 47-49). The VE testified that the individual
could not perform Mr. Kaplarevic's past relevant work in
construction or as a mechanic, but other jobs would be
available (R. 48-49). However, if the individual needed to
recline 80 percent of the work day, or would be off-task up
to one-third of the work day, no jobs would be available (R.
August 13, 2014, the ALJ issued a written opinion following
the familiar five-step process for determining disability, 20
C.F.R. § 404.1520(a)(4). At Step 1, the ALJ stated that
Mr. Kaplarevic has not engaged in substantial gainful
activity since August 1, 2012, his alleged onset date (R.
13). At Step 2, the ALJ concluded that Mr. Kaplarevic had
severe impairments which included degenerative disc disease
and obesity. At Step 3, the ALJ found that Mr.
Kaplarevic's impairments, singly or in combination, did
not meet or exceed a listed impairment, including Listings
1.02 and 1.04 for degenerative disc disease (R. 14-15). In
addition, the ALJ stated that Mr. Kaplarevic's obesity
did not significantly impair any of his other functions (R.
determined that Mr. Kaplarevic retained the RFC to perform
light work (R. 15). The ALJ wrote both that Mr. Kaplarevic
"frequently can climb ramps and stairs, " and that
he "cannot climb ladders, ropes or stairs"
(Id.). In addition, the ALJ stated that Mr.
Kaplarevic could frequently balance, kneel, and crouch and
occasionally stoop and crawl; and should avoid concentrated
exposure to extreme heat, humidity, vibration, dust fumes,
odors, gases, poor ventilation, unprotected heights,
dangerous moving machinery, and night driving (R, 15-16).
Moreover, the ALJ found that Mr. Kaplarevic could "sit
or stand for at least 30 ...