Hetman v. Commissioner of Social Security
Filing
24
ORDER and OPINION entered by Magistrate Judge Jonathan E. Hawley on 06/01/2016. For the foregoing reasons, the Plaintiff's Motion for Summary Judgment 16 is GRANTED, the Defendant's Motion for Summary Affirmance 21 is DENIED, and this matter is REMANDED pursuant to Sentence Four of 42 U.S.C. § 405(g) for the ALJ to properly assess the Plaintiff's credibility pursuant to the relevant authority. See full written Order.(JS, ilcd)
E-FILED
Wednesday, 01 June, 2016 03:36:39 PM
Clerk, U.S. District Court, ILCD
IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
PAUL HETMAN,
Plaintiff,
v.
Case No. 1:15-cv-01199-JEH
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Order and Opinion
Now before the Court is the Plaintiff Paul Hetman’s Motion for Summary
Judgment (Doc. 16), the Commissioner’s Motion for Summary Affirmance (Doc.
21), and the Plaintiff’s Reply (Doc. 23). For the reasons stated herein, the Court
GRANTS the Plaintiff’s Motion for Summary Judgment, DENIES the
Commissioner’s Motion for Summary Affirmance, and REMANDS this matter
for proceedings consistent with this opinion. 1
I
On June 19, 2012, Hetman filed an application for disability insurance
benefits (DIB) alleging disability beginning on November 2, 2011. His claim was
denied initially on August 24, 2012 and was denied upon reconsideration on
December 31, 2012. On January 3, 2013, Hetman filed a request for hearing
concerning his application for DIB. A hearing was held before the Honorable
Susan Sarsfield (ALJ) on November 7, 2013, and at that time Hetman was
References to the pages within the Administrative Record will be identified by AR [page number]. The
Administrative Record appears as (Doc. 12) on the docket.
1
1
accompanied by Marianne Dergham, an attorney, 2 and a Vocational Expert (VE)
testified. Following the hearing, Hetman’s claim was denied on January 21, 2014.
His request for review by the Appeals Council was denied on March 16, 2015,
making the ALJ’s Decision the final decision of the Commissioner. Hetman filed
the instant civil action seeking review of the ALJ’s Decision on May 18, 2015.
II
At the time he applied for DIB, Hetman was 50 years old living in Chenoa,
Illinois. On his Form SSA-3368, Hetman indicated that the physical conditions
that limited his ability to work included “Disc disor [sic], displa [sic] lumbar,
arthopat multi [sic], spinal, thora [sic]; Disc Disorder; Displaced Lumbar;
Arthropathy Multi Sites; Spinal Stenosis; and Thoracic Lumber [sic] Neuritis.”
AR 146. He reported that his conditions caused him pain or other symptoms.
He also indicated on that form that he stopped working on November 2, 2011
due to his condition. On January 25, 2012, Hetman underwent lumbar surgery
which
included
a
posterior
interbody
fusion
with
a
decompression
hemilaminotomy at L5-S1 on the right and a separate decompression
transfacetectomy decompression/hemilaminotomy on the left.
At the hearing before the ALJ on November 7, 2013, Hetman testified that
he lived in his home with one son and was receiving disability temporarily
through the VA and temporary long term disability through a private insurance
company. Hetman explained that he consistently drove before November 2,
2011, and after that it was easy for him to find a ride from his brother, his son, or
his friend. He testified that he previously worked in telephone collections and a
as a field service technician.
In her Decision, the ALJ provided that Hetman was represented by Rita Alboher and Marianne
Dergham, both of whom were non-attorneys. However, the transcript indicates that Ms. Dergham is an
attorney, and the Commissioner’s Motion for Summary Affirmance states that Hetman was represented
by an attorney at the hearing before the ALJ.
2
2
Hetman also testified that he felt that he could not work anymore because
of his constant back pain which prevented him from concentrating and feeling
comfortable. He stated that he had an appointment the week after the hearing to
find out if there was anything the doctors could do for his continuing back
issues, and he anticipated that he would be sent to Indianapolis (where he was
sent previously for treatment) to meet with an orthopedic surgeon to find out if
“they [could] fix it.” AR 44. Hetman testified that his general practitioner told
him that there was scar tissue pressing on the nerves in his back following his
fusion surgery.
Hetman further testified that he had done physical therapy twice
previously and planned to do it again the week following the hearing. He stated
that he had MRIs taken, CT scans taken, and x-rays taken in the past. He also
stated that he received three epidurals in 2013, after his surgery, which did
nothing for him. Hetman next testified that he took gabapentin, hydrocodone,
and naproxen for pain and took up to four hydrocodone pills per day. He
explained that he hated taking the medication he was already prescribed, so he
did not want to try anything else though his pain was reaching a point where he
believed he would need to tell his doctor. He testified to drowsiness as a side
effect of his pain medications.
In an attempt to control his back pain during episodes when it escalated to
an 8 on a scale of 1 to 10 (about once every two weeks), Hetman testified that he
would take two pain pills and would try to find a place to lay down for at least a
couple of hours. He said the location of his pain was in the center of his back at
the beltline and traveled out into both of his hips and then down both of his legs.
He stated that sitting and standing were equally bad for him because both put
pressure on his lower back, and he would be able to sit for only a half hour to 45
minutes at one time while still able to pay attention.
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After that, Hetman
explained that he would then go lay down if he were at home. As for pain
treatments, Hetman testified that he used a TENS unit daily and would leave it
on continuously or until he would get tired of it. He also put heat on his back in
an attempt to alleviate the pain. Hetman rated his back pain, on average, as a 5
or 6 with medication. He added that if he could find a comfortable place to sit or
lay down, his pain would possibly be a bit less, and then he rated his pain as a 6
to 7 on average generally. Hetman described his back pain as both sharp and
dull.
With regard to his daily activities, Hetman testified that he used the
handicapped bathroom in his home to shower, and could cook quick meals and
do his dishes because there were not many to do. He testified that his son did
most of the house work, but Hetman took care of his own room and bathroom
and would work on those rooms until his back began to hurt and he would have
to lay down. He said that he would sometimes clean by sitting on the floor and
“just kind of scoot around” to do it. AR 52. Hetman additionally testified that he
could grocery shop for not much more than a half hour and then his pain would
get to the point where he would have to leave the store. He used a cart when
grocery shopping and stated that he could not last long without one. Hetman
next testified that he began using a cane before his back surgery and used it for
the first time after he fell down. He stated that he had fallen since his surgery.
When asked by the ALJ whether he would be able to go back to his
previous work as a collections person, Hetman testified that there was no way he
would be able to do so because of his back pain and the option to stand up
during the day would not relieve his back pain.
Upon examination by his attorney, Hetman testified that he could
concentrate on the TV shows he watched if he were laying down because if he
were sitting or standing for a long time, the pain would get to a certain point
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where it would be hard for him to concentrate. He stated that he laid down for
most of the day on a daily basis. He then testified that he no longer engaged in
his previous hobbies of hunting and fishing, and the last time Hetman did yard
work was before his back became worse.
Finally, the ALJ elicited testimony from the VE.
III
In her January 21, 2014 Decision, the ALJ determined that Hetman had the
following severe impairments: degenerative disc disease, cardiomyopathy, and
obesity. The ALJ then made the following Residual Functional Capacity (RFC)
finding:
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) except he can
never climb ladders, ropes, or scaffolds, but can occasionally climb
ramps and stairs, and can occasionally balance, stoop, kneel, crouch
and crawl.
AR 21. In reaching that finding, the ALJ explained that Hetman’s statements
concerning the intensity, persistence, and limiting effects of his alleged
symptoms were not entirely credible for the reasons explained in the Decision.
The ALJ then went on to discuss Hetman’s obesity, noting that the possible
effects of obesity on a person with impairments such as Hetman’s at the various
sequential steps were taken into consideration to reach her conclusions. The ALJ
stated that no treating or examining medical source had specifically attributed
additional or cumulative limitations to Hetman’s obesity and that the medically
determinable evidence supported her RFC finding. The ALJ next stated that
Hetman’s degenerative back disorder and cardiomyopathy had been established
as severe impairments by the objective medical record.
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The ALJ next identified the evidence of record pertaining to Hetman’s
lower back issues as of November 2011, including evidence of decreased range of
motion in the lumbar spine with strength and gait that remained normal. The
ALJ discussed the results of testing done of Hetman’s back between November
2011 and March 2013 via MRI, CT scan, x-ray, and physical examination. The
ALJ identified Hetman’s treatment records dated after his January 2012 back
surgery and specifically noted where his treatment records indicated how he
ambulated and whether he used an assistive device to do so. The ALJ also
repeated Hetman’s reports to his doctors regarding his pain and where he
continued to feel numbness after his surgery. The ALJ also noted that Hetman
participated in physical therapy and increased his activity status post-surgery.
The ALJ observed, “[E]xcept for limited range of motion in the lumbar
spine, the claimant’s physical examinations demonstrated mild symptomology.”
AR 23. She went on, “The claimant’s gait was slow and mildly antalgic and his
straight leg raise test (SLR) was negative in September, and his SLR was only
mildly positive in November of 2012.” AR 23. The ALJ then noted that Hetman
tried epidural injections and physical therapy in the summer and fall of 2012 and
injections again in the summer of 2013, all of which reportedly brought him no
relief for his back pain.
Medical records indicated limited range of lumbar
motion in May 2013 and then very poor range of lumbar motion in all planes by
August 2013. The ALJ discussed the medical notes that indicated Hetman used a
cane for support, though he was observed to be steady as he performed exam
maneuvers.
She noted Hetman’s diagnosis of chronic back pain related to
lumbar facet osteoarthritis, lumbar radiculopathy, and a deconditioned back and
that he was recommended for physical therapy and also for conservative use of
opiates, if used at all.
6
The ALJ next discussed the State’s Department of Disability Services (DDS)
physicians’ and evaluators’ opinions which provided that Hetman was capable
of light exertional work. The ALJ gave those opinions “significant weight” after
finding that “the DDS assessments [were] consistent with the objective record.”
AR 24. Next, the ALJ – repeatedly referencing the objective medical evidence –
stated her conclusion that Hetman’s allegation of complete and total disability
could not be fully accepted. The ALJ articulated that, in assessing Hetman’s
RFC, she determined that “the degree of symptoms and limitations alleged by
the claimant due to pain [were] not consistent with the objective medical
evidence regarding [his] impairments, as discussed at length above [in the
Decision].”
AR 24.
The ALJ then briefly referenced Hetman’s most recent
(August 2013) examination notes which indicated he was independent in
activities of daily living, as he told his pain clinic doctor that he frequently rode
around in the car with his brother and that he wanted to try to ride his bicycle for
exercise.
Lastly, the ALJ addressed the VE’s testimony and explained why she
determined that Hetman was capable of performing his past relevant work as a
collection clerk.
IV
Hetman argues that the ALJ erred by: 1) improperly assessing Hetman’s
credibility; and 2) improperly assessing Hetman’s RFC.
The Court's function on review is not to try the case de novo or to supplant
the ALJ's findings with the Court's own assessment of the evidence. See Schmidt
v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000); Pugh v. Bowen, 870 F.2d 1271 (7th Cir.
1989). Indeed, "[t]he findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g).
Although great deference is afforded to the determination made by the ALJ, the
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Court does not "merely rubber stamp the ALJ's decision." Scott v. Barnhart, 297
F.3d 589, 593 (7th Cir. 2002). The Court's function is to determine whether the
ALJ's findings were supported by substantial evidence and whether the proper
legal standards were applied. Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir. 1986).
Substantial evidence is defined as such relevant evidence as a reasonable mind
might accept as adequate to support the decision. Richardson v. Perales, 402 U.S.
389, 390 (1971), Henderson v. Apfel, 179 F.3d 507, 512 (7th Cir. 1999).
In order to qualify for disability insurance benefits, an individual must
show that his inability to work is medical in nature and that he is totally
disabled. Economic conditions, personal factors, financial considerations, and
attitudes of the employer are irrelevant in determining whether a plaintiff is
eligible for disability. See 20 C.F.R. § 404.1566 (1986). The establishment of
disability under the Act is a two-step process.
First, the plaintiff must be suffering from a medically determinable
physical or mental impairment, or combination of impairments, 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 12 months. 42 U.S.C. § 423(d)(1)(A). Second,
there must be a factual determination that the impairment renders the plaintiff
unable to engage in any substantial gainful employment. McNeil v. Califano, 614
F.2d 142, 143 (7th Cir. 1980). The factual determination is made by using a fivestep test. See 20 C.F.R. § 404.1520. In the following order, the ALJ must evaluate
whether the claimant:
1)
currently performs or, during the relevant time period, did
perform any substantial gainful activity;
2)
suffers from an impairment that is severe or whether a
combination of her impairments is severe;
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3)
suffers from an impairment which meets or equals any
impairment listed in the appendix and which meets the
duration requirement;
4)
is unable to perform her past relevant work which includes an
assessment of the claimant’s residual functional capacity; and
5)
is unable to perform any other work existing in significant
numbers in the national economy.
Id. An affirmative answer at any step leads either to the next step of the test, or at
steps 3 and 5, to a finding that the plaintiff is disabled. A negative answer at any
point, other than at step 3, stops the inquiry and leads to a determination that the
plaintiff is not disabled. Garfield v. Schweiker, 732 F.2d 605 (7th Cir. 1984).
The plaintiff has the burdens of production and persuasion on steps 1
through 4. However, once the plaintiff shows an inability to perform past work,
the burden shifts to the Commissioner to show ability to engage in some other
type of substantial gainful employment. Tom v. Heckler, 779 F.2d 1250 (7th Cir.
1985); Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984).
In the instant case, Hetman claims error on the ALJ’s part at Step Four.
A
Hetman first argues that the ALJ erred in failing to articulate her
assessment of the credibility of his allegations with a level of detail that
permitted meaningful judicial review. Hetman argues that discrete parts of the
ALJ’s Decision fell short of the ALJ’s duty to assess his credibility including the
failure to analyze his pain pursuant to SSR 96-7p, the failure to consider his use
of a cane, and the failure to consider the full scope of his activities of daily living.
The Commissioner counters that the ALJ’s Decision did not rely on mere
boilerplate, and instead reflects that she considered multiple factors in assessing
the credibility of Hetman’s subjective complaints and explained the basis for her
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adverse credibility finding. The Commissioner further argues that Hetman fails
to appreciate that RFC determinations are inherently intertwined with matters of
credibility, and so the ALJ’s RFC finding of a reduced range of light work made
clear how the ALJ credited Hetman’s allegations of disability. In his Reply,
Hetman argues that an ALJ may not imply her analysis of a claimant’s credibility
in her decision and an ALJ may not rely on a lack of objective evidence to
discredit the claimant.
Determinations of credibility made by the ALJ will not be overturned
unless the findings are patently wrong. Shideler v. Astrue, 688 F.3d 306, 310-11
(7th Cir. 2012). SSR 96–7p instructs that when “determining the credibility of the
individual's statements, the adjudicator must consider the entire case record,”
and that a credibility determination “must contain specific reasons for the
finding on credibility, supported by the evidence in the case record.” An ALJ
must provide “enough detail and clarity to permit meaningful review.” An ALJ
should consider elements such as objective medical evidence of the claimant's
impairments, the daily activities, allegations of pain and other aggravating
factors, “functional limitations,” and treatment (including medication). Scheck v.
Barnhart, 357 F.3d 697, 703 (7th Cir. 2004); Rice v. Barnhart, 384 F.3d 363, 371 (7th
Cir. 2004). A credibility finding “must be supported by the evidence and must
be specific enough to enable the claimant and a reviewing body to understand
the reasoning.” Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008).
Here, although the ALJ did not fail to provide enough clarity to permit
meaningful review of her assessment of Hetman’s credibility by the Court, the
clarity the ALJ provided reveals that the ALJ failed to consider the necessary
factors and thus, committed legal error. See Clifford v. Apfel, 227 F.3d 863, 869 (7th
Cir. 2000) (explaining that the Commissioner’s findings will be reversed only if
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they are not supported by substantial evidence or if the Commissioner applied
an erroneous legal standard). SSR 96-7p states in relevant part:
In recognition of the fact that an individual's symptoms can
sometimes suggest a greater level of severity of impairment than can
be shown by the objective medical evidence alone, 20 CFR
404.1529(c) and 416.929(c) describe the kinds of evidence, including
the factors below, that the adjudicator must consider in addition to
the objective medical evidence when assessing the credibility of an
individual's statements:
1. The individual's daily activities;
2. The location, duration, frequency, and intensity of the individual's
pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication
the individual takes or has taken to alleviate pain or other
symptoms;
5. Treatment, other than medication, the individual receives or has
received for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has
used to relieve pain or other symptoms (e.g., lying flat on his or her
back, standing for 15 to 20 minutes every hour, or sleeping on a
board); and
7. Any other factors concerning the individual's functional
limitations and restrictions due to pain or other symptoms.
Here, the ALJ concluded that “the claimant’s allegation of complete and total
disability cannot be fully accepted.” AR 24. The ALJ then went on to discuss
how the objective medical evidence contradicted Hetman’s allegations of
disability where: the record did not demonstrate clearly that he had the muscle
spasms, muscle atrophy, motor weakness, sensation loss, difficulty ambulating,
or reflect abnormalities which are associated with intense and disabling pain; the
clinical evidence persistently demonstrated that Hetman’s strength was always
intact everywhere and he always had full-range of motion in his extremities; the
examinations Hetman underwent showed no apparent distress; and the objective
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medical evidence demonstrated a good result from surgery with an ample
recovery and virtually no change in his condition to support the alleged increase
in pain and symptoms after August 2012. AR 24. The ALJ also stated, “The
mild, post-surgical changes reflected in the July 30, 2012 CT scan and the March
25, 2013 MRI of the lumbar spine underscore the lack of objective medical
evidence to support that his lumbar spine condition is disabling.” AR 24.
It is clear that the ALJ placed an undue amount of weight on the lack of
objective medical evidence to support Hetman’s allegations of disability.
Missing from her assessment was a consideration of aggravating factors,
treatment Hetman received for his back pain, and functional limitations Hetman
experienced. With regard to any functional limitations caused by pain, the ALJ
noted that the evidence showed that Hetman consistently used a cane to
ambulate after November 2012, but she then rejected such evidence because
there was no prescription for it or suggestion for such by any of his doctors.
Once again, the ALJ’s discussion reveals that she rejected Hetman’s use of a cane
(and therefore another indication of his alleged pain) because identifiable
medical evidence did not indicate his need for one. With regard to the treatment
Hetman sought for his back pain, the ALJ only recited the treatment he received
and the results. The ALJ entirely failed to note, however, that Hetman testified
to taking hydrocodone, gabapentin, and naproxen pain medications. The ALJ
did not, as Hetman argues, explain how she considered the treatments Hetman
received or why the consistent receipt of treatments failed to make Hetman’s
allegations of debilitating pain more rather than less credible. In other words,
the ALJ did not minimally articulate her reasons for rejecting evidence of
Hetman’s ongoing pain. See Scivally v. Sullivan, 966 F.2d 1070, 1076 (7th Cir.
1992) (“The ALJ must minimally articulate [her] reasons for crediting or rejecting
evidence of disability”).
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To the extent that the ALJ was convinced that Hetman was incredible
regarding his pain and limitations due to his back impairment because objective
medical evidence was lacking to support his allegations, the Seventh Circuit has
made clear that, “An ALJ may not discount a claimant’s credibility just because
[his] claims of pain are unsupported by significant physical and diagnostic
examination results.” Pierce v. Colvin, 739 F.3d 1046, 1049-50 (7th Cir. 2014). The
glimpse into her reasoning that the ALJ provided shows that she improperly
assessed Hetman’s credibility by not sufficiently addressing the factors under
SSR 96-7p and to the extent she did address the relevant factors, she rejected
them merely because the objective evidence fell short.
In fact, the ALJ’s
discussion of Hetman’s testimony at the hearing was essentially non-existent in
her Decision. Hetman’s hearing testimony notably post-dated the August 2013
medical records which the ALJ specifically cited for the reports that Hetman was
“independent in activities of daily living” and “frequently rode around in the car
with his brother.” AR 25. Hetman’s testimony provided more detail about his
activities of daily living, his pain, and his attempts to alleviate his pain
(testimony that went directly to the factors the ALJ was required to consider
under SSR 96-7p). Still, the ALJ provided no discussion of how she perceived
Hetman’s reports during treatment in light of his elaboration during the hearing.
Moreover, the ALJ included no discussion of why the later-dated medical
evidence which did include more definitive objective signs of limitations directly
related to his back condition were insufficient.
The ALJ’s over-reliance upon the lack of objective medical evidence to
substantiate Hetman’s pain allegations is even more suspect in light of the
weight she gave the State’s DDS physicians’ and evaluators’ assessments. She
gave those evaluators’ assessments “significant weight.” AR 24. Yet those two
separate evaluators indicated “Yes” to the question of whether “the individual’s
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statements about the intensity, persistence, and functionally limiting effects of
the symptoms [were] substantiated by the objective medical evidence alone[.]”
AR 69, 78. The ALJ included no discussion as to the discrepancy in her Decision
between giving “significant weight” to the evaluators’ assessments and finding
Hetman’s allegations less than credible based upon a lack of objective medical
evidence. In this regard, the ALJ’s credibility discussion is at odds with the
statement in SSR 96-7p that:
[I]f the case record includes a finding by a State agency medical or
psychological consultant or other program physician or psychologist
on the credibility of the individual’s statements about the limitations
or restrictions due to symptoms, the adjudicator at the
administrative law judge . . . level of administrative review must
consider and weigh this opinion of a nonexamining source under
the applicable rules in 20 CFR 404.1527 and 416.927 and must
explain the weight given to the opinion in the decision.
SSR 96-7p, 1996 WL 374186, at *8. Thus, the ALJ failed to build a logical bridge
between the evidence and her conclusions. See Terry v. Astrue, 580 F.3d 471, 475
(7th Cir. 2009).
The errors this ALJ committed in assessing Hetman’s credibility compel
remand.
B
Because the Court has determined that the ALJ’s credibility assessment
was legally erroneous which alone necessitates remand, the Court will not
address Hetman’s second argument that the ALJ improperly assessed his RFC.
Nevertheless, the ALJ must necessarily re-visit her RFC finding to ensure that it
is compatible with her analysis of Hetman’s credibility on remand.
V
For the foregoing reasons, the Plaintiff’s Motion for Summary Judgment
(Doc. 16) is GRANTED, the Defendant’s Motion for Summary Affirmance (Doc.
14
21) is DENIED, and this matter is REMANDED pursuant to Sentence Four of 42
U.S.C. § 405(g) for the ALJ to properly assess the Plaintiff’s credibility pursuant
to the relevant authority.
It is so ordered.
Entered on June 1, 2016.
s/Jonathan E. Hawley
U.S. MAGISTRATE JUDGE
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