Douglass v. Astrue

Filing 36

MEMORANDUM Opinion and Order. Signed by the Honorable Young B. Kim on 6/29/2010. (aac, )

UNITED STATES DISTRICT COURT N O R T H E R N DISTRICT OF ILLINOIS E A S T E R N DIVISION J A N IC E SUSAN DOUGLASS, P la in tif f , v. M IC H A E L J. ASTRUE, Commissioner o f Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) )

C a s e No. 09 C 855

M a g is tr a te Judge Young B. Kim J u n e 29, 2010

M E M O R A N D U M OPINION and ORDER B e f o re the court is the motion of plaintiff Janice Susan Douglass ("Douglass") for s u m m a ry judgment. Douglass seeks review of the final decision of the Commissioner of S o c ia l Security ("Commissioner") denying her application for a period of disability and D is a b ility Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U .S .C . § 423(d)(2), and Supplemental Security Income ("SSI") under Title XVI of the Act, 4 2 U.S.C. § 1382c(a)(3)(A). Douglass asks the court to reverse the Commissioner's decision a n d award benefits, or in the alternative, remand the decision for further proceedings. For th e following reasons, the motion is granted to the extent that the cause is remanded for f u rth e r proceedings consistent with this opinion. P r o c e d u r a l History D o u g la s s applied for DIB and SSI on July 22, 2005, alleging that she became disabled o n October 29, 2003, due to a back disorder, carpel tunnel syndrome, severe depression, and a n x ie ty. (Administrative Record ("A.R.") 51, 66-68, 631-33.) Her applications were denied

initially on November 25, 2005, and again on reconsideration on May 25, 2006. (Id. at 11, 4 9 -5 3 , 625-28.) Thereafter, Douglass filed a timely request for a hearing on July 3, 2006. (Id. at 47.) An administrative law judge ("ALJ") held a hearing on July 22, 2008. (A.R. 634-93.) Douglass appeared and testified at the hearing. (Id. at 636-84.) Dennis Gustafson

(" G u sta f so n " ), a vocational expert, and Kevin Spencer ("Spencer"), a witness for Douglass, a ls o appeared and testified at the hearing. (Id. at 684-92.) On August 25, 2008, the ALJ is su e d a decision finding Douglass not disabled. (Id. at 11-23.) In reaching his decision, the A L J relied on medical evidence showing that Douglass had no abnormal findings, but ig n o re d medical evidence that supported her disability claim. Douglass then filed a request for review of the ALJ's decision and, on November 26, 2 0 0 8 , the Appeals Council denied her request, making the ALJ's decision the final decision o f the Commissioner. (A.R. 4-6.) Pursuant to 42 U.S.C. § 405(g), Douglass initiated this c iv il action for judicial review on February 19, 2009, of the Commissioner's final decision.1

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Under 42 U.S.C. § 405(g), an individual who wishes to obtain judicial review of an adverse d e c is io n of the Commissioner must file a civil complaint within sixty days after the Appeals C o u n c il denies review. "The 60-day requirement is not jurisdictional, but rather constitutes a period of limitations." Bowen v. City of New York, 476 U.S. 467, 478 (1986) (citations o m itte d ). Here, Douglass filed an affidavit with the court testifying that she did not receive n o tic e of the Appeals Council letter until January 8, 2009. Thereafter, she filed a civil c o m p la in t on February 19, 2009. Because the Commissioner did not assert a statute of lim ita tio n s affirmative defense in its answer or in its responsive brief, that defense has been w a iv e d . Fed.R.Civ.P. 8(c) (requiring a defendant to plead a statute of limitations defense and a n y other affirmative defense in the answer to the complaint); Venters v. City of Delphi, 123 F .3 d 956, 968 (7th Cir. 1997) ("A claim that the statute of limitations bars a lawsuit is an 2

Facts D o u g la s s was born on March 29, 1959, and was 49-years old at the time of the a d m in is tra tiv e hearing. (A.R. 638.) She finished eighth grade, but never went to high school o r obtained a general equivalency diploma. (Id. at 642.) Douglass was most recently e m p lo ye d as a lead scale worker at Illinois Laundry. (Id. at 21, 86, 113, 415.) Her main d u tie s entailed pushing, pulling, and maneuvering large carts of laundry material weighing b e tw e e n 150 to 500 pounds onto large floor scales, and cataloging the contents of the carts. (Id. 218, 674-75.) She stopped working at the end of October 2003, because she was s u f f e rin g from back, hip, leg, and neck pain, bilateral carpal tunnel syndrome, depression, a n d anxiety. (Id. at 21, 113, 644.) A. P h y s ic a l Impairments 1. N e c k and Back Pain

T h e record establishes that Douglass initially sought treatment for neck, hip, leg, a b d o m e n , and lower back pain on October 29, 2003. (A.R. 185.) A November 3, 2003, xra y of Douglass's pelvis and left hip showed degenerative disease of the spine and the ra d io lo g is t incidentally noted that there were "severe degenerative changes at the L5-S1 le v e l." (Id. at 122.) The reviewing doctor noted that Douglass's pain emanated from the L5S 1 level and referred her to physical therapy. (Id.)

affirmative defense, and it must be pleaded or it will be considered waived.") (citations o m itte d ). 3

Two months later, Douglass was treated by Dr. William Olivero, a neurosurgeon.2 (A .R . 213.) Her physical examination showed her range of motion and reflexes were normal, b u t there was tenderness in her left groin. (Id.) The results of a magnetic resonance imaging (" M R I" ) scan of Douglass's pelvis, on January 22, 2004, showed no abnormalities. (Id. at 1 1 8 .) However, an MRI of Douglass's lumbar spine performed three weeks later showed c e n tra l canal stenosis at L2-L3 and marked narrowing of the left neural foramen at L3-L4. (Id . at 116.) In May 2004, Douglass had an initial pain management consultation with Dr. Maria P ila r-E s tilo , a pain specialist. (A.R. 376-77.) Treatment notes indicate Douglass reported s h e had continuous left flank and left lower abdominal pain, which started nine months e a rlie r with no specific triggering event. (Id. at 376.) Douglass told Dr. Pilar-Estilo that her s le e p was interrupted due to pain and that she took Tylenol #4 four to five times a day to re lie v e her pain. (Id.) Douglass also underwent two MRIs that month. The first, taken of D o u g la s s 's thoracic spine, showed an incidental finding of a moderate to large sized C5-C6 d is c protrusion with possible cord impingement, signifying a herniated disc and a smaller d is c protrusion at the C6-C7 level. (Id. at 373-74.) The second, of Douglass's cervical spine, s h o w e d a central to right posterolateral C5-C6 herniated disc, and partial left C5-C6 p o s ta rth ritic neuroforaminal stenosis secondary to osteoarthrosis. (Id. at 368.)

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Dr. Olivero performed lumbar spinal surgery on Douglass in 1992. (A.R. 475-76.) The s u rg e ry consisted of a lumbar laminectomy and diskectomy at L4-L5 on the left side. (Id.) 4

In June 2004, Douglass saw Dr. Pilar-Estilo for left hip pain and mild pain in her neck ra d ia tin g to the lateral aspect of her right arm. (A.R. 363-65.) Douglass's examination that d a y showed no abnormalities, but she continued to seek treatment with Dr. Pilar-Estilo for s e v e re neck, hip, and back pain on many occasions in 2004 and 2005. (Id. at 255, 257, 259, 2 6 1 , 263, 271, 303, 308, 310, 348, 359, 361.) During this period, Douglass had a series of lu m b a r epidural steroid injections (id. at 257-58, 259-60, 261-62, 359, 361, 362, 364), and w a s prescribed various medications, including Ultracet, Naproxen, and Darvocet for pain, a n d Effexor for depression (id. at 261-62, 303-04, 310, 359, 361, 362, 363, 364). Douglass a ls o engaged in a physical therapy program for her back pain. (Id. at 265-70, 273-79, 2838 5 , 289-91, 296-97, 301, 315-19, 321-23, 325-26, 328-31, 333-36, 342-45, 347, 351-58). The physical therapy included soft tissue mobilization, ultrasound therapy, electrical s tim u la tio n , traction, hot and cold packs, and therapeutic exercises. (Id.) Dr. Pilar-Estilo's d ia g n o s e s included acute posterior neck pain, chronic lower back pain, mid to lower thoracic spine degenerative joint disease, a moderately enlarged C5-C6 disc protrusion, lumbar central c a n a l stenosis at L2-L3, and depression. (Id. at 255, 257, 259, 261, 263, 271, 303, 308, 359, 3 6 1 , 363.) From June 2006 through April 2007, Douglass sought treatment for severe back pain f ro m Dr. Jyoti Karla, a pain specialist. (A.R. 463-68.) Dr. Karla prescribed intervertebral d if f e re n tia l dynamics ("IDD"), ultrasound, and transcutaneous electrical nerve stimulation (" T E N S " ) therapies for Douglass's back pain. (Id. at 458.) Dr. Karla also prescribed

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physical therapy, Vicoden, pain patches, and other medications for Douglass's back pain d u rin g this period. (Id. at 457, 463-68.) Douglass had another MRI of her lumbar spine in November 2006. (A.R. 243-44.) T h e results showed mild to moderate lumbar spondylosis without significant central canal s te n o s is , and narrowing of the L3-L4 and L4-L5 neuroforamen. (Id. at 244.) The MRI also re v e a le d post-operative changes of the L5-S1 intervertebral disc with anterior epidural s c a rrin g that encircles both S1 nerve roots. (Id.) There was no recurrent or residual disc p ro tru sio n . (Id.) On that same day, Douglass had an x-ray of her lumbar spine, which s h o w e d mild to moderate lumbar spondylosis with moderate to severe L5-S1 disc d e g e n e ra tio n . (Id. at 245.) The following month, Douglass sought emergency medical tre a tm e n t for pain on the left side of her neck and shoulder that had persisted for three to four d a ys . (A.R. 237-39.) Her treating physician diagnosed the problem as torticollis (twisted n e c k ) and prescribed medication for her treatment. (Id. at 237.) In March 2007, Douglass underwent another MRI and x-ray of her cervical spine. (A .R . 233-35.) The MRI revealed an overall stable appearance of a posterior disc bulge at th e C5-C6 level with narrowing of the spinal canal to 7.4 millimeters and flattening of the s p in a l cord. (Id. at 233.) A partial left neuroforaminal narrowing at the C5-C6 level was n o te d . (Id.) The x-ray showed a curvature, reversal lordosis, and degenerative changes as w e ll as longstanding calcification adjacent to the anterior inferior aspect anterior arch of C1. (Id . at 135.)

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2.

W r is t and Hand Pain

Douglass first sought treatment for her wrist pain on October 29, 2003. (A.R. 185.) A n electromyography ("EMG") and nerve conduction study of Douglass's hands performed in November 2003, showed "mildly abnormal" findings that were "most likely consistent w ith a mild distal right median nerve neuropathy at the wrist level, probably consistent with a mild right carpal tunnel syndrome." (Id. at 178.) The next month, Dr. Keith Rezin, an o rth o p e d ic surgeon, diagnosed Douglass with right carpal tunnel syndrome by history. (Id. a t 438.) Dr. Rezin opined that Douglass could be on light-duty work restrictions, and ordered p h ys ic a l therapy. (Id.) Douglass had an independent medical examination, in August 2004, with Dr. John Fernandez, an orthopedic specialist. (A.R. 216-28.) Douglass reported that she began having d is c o m f o rt in her hands and wrists in April 2003. (Id. at 216.) Douglass complained of n u m b n e s s and tingling affecting the thumb, index, and middle fingers, and her symptoms b e c a m e worse with any significant activity, including forceful gripping or grasping. (Id. at 2 1 7 .) She rated the severity of her symptoms as a seven out of ten. (Id.) An examination o f her hands showed paresthesias affecting the median nerve distribution on the hands with th e right being greater than the left, and irritability over the median nerve at the wrist on p e rc u s s io n and compression with positive Tinel and Phalen's tests. (Id. at 219.) There was a ls o tenderness along the carpal canal palmarly, but without significant instability or m e c h a n ic a l symptoms such as crepitus, locking, or triggering. (Id.) Dr. Fernandez diagnosed

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bilateral carpal tunnel syndrome, with the right wrist being worse than the left wrist. (Id.) H e restricted Douglass to light work entailing lifting twenty pounds occasionally, ten pounds f re q u e n tly, and negligible force constantly. (Id. at 223.) She was also limited to repetitive p u s h in g , pulling, twisting, gripping, and pinching occasionally, which meant she could p e rf o rm these tasks once every ten minutes and for a total of one to three hours. (Id.) In December 2004, Dr. Jason Franklin, an osteopathic doctor, evaluated Douglass for b ila te ra l hand pain and numbness. (A.R. 415.) She stated that a year and a half earlier, she n o tic e d problems with neck and shoulder pain, and pain in her hands and arms as well n u m b n e s s and tingling in her hands. (Id.) Douglass experienced pain that was aching, b u rn in g , or squeezing, in her neck, radiating into her arms. (Id.) Her pain was worse when s h e used her hands and she used anti-inflammatory and pain medications as well as splints. (Id .) Dr. Franklin diagnosed bilateral carpal tunnel syndrome and ordered an EMG of the left w ris t. (Id.) That same month, Douglass underwent right carpal tunnel syndrome release and rig h t trigger thumb release surgery. (Id. at 409-10.) Two months later, in February 2005, D o u g la s s underwent left carpal tunnel release and left trigger finger release surgery. (Id. at 3 9 6 - 9 7 .) In March 2005, Douglass told Dr. Rezin she was unable to return to work. (A.R. 391.) D r. Rezin examined Douglass and found she did not have any trigger thumb problems, but h a d little crepitants in the interphalangeal joint of both thumbs. (Id.) Her grip strength was f a ir and her range of motion was good. (Id.) Dr. Rezin recommended that Douglass continue

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physical therapy for another week and a half, after which, he would release her to light duty w o rk . (Id.) Douglass saw Dr. Rezin for a follow-up appointment regarding her bilateral c a rp a l tunnel surgeries in April 2005. (Id. at 385, 387.) Dr. Rezin noted that she was no lo n g e r having numbness and tingling in her hands, and had recently returned to work. (Id. a t 385.) Dr. Rezin indicated Douglass was capable of doing light duty work through May 1 , 2005, that she would reach maximal medical improvement by May 2, 2005, that she would re tu rn to full duty work with no restrictions, and that she would be released from his care and s e e n on an as needed basis. (Id.) B. M e n ta l Impairments In November 2004, Douglass initially sought treatment for depression with Dr. Yung C h u n g , a psychiatrist. (A.R. 153-58.) One month later, Douglass reported to Dr. Chung that s h e felt "overwhelmed and depressed." (Id. at 124.) Dr. Chung diagnosed Douglass as h a v in g a depressive disorder not otherwise specified, prescribed Remeron, and noted she was ta k in g Methadone for pain. (Id. at 124-25.) Douglass continued to be treated by Dr. Chung in 2005 and 2006, and also attended group therapy during this period. (Id. at 127-28, 1395 2 .) Douglass next sought psychiatric treatment at North Central Behavioral Health S ys te m s , Inc. ("NCBHS") in October 2006. (A.R. 498-533.) Dr. Sheth Atul, a psychiatrist, d ia g n o s e d Douglass with depression, post-traumatic stress disorder ("PTSD") and mood d is o rd e r not otherwise specified. (Id. at 499, 501, 505-06, 508.) At that time, Douglass

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reported having difficulty dealing with physical, financial, and family issues. (Id. at 506, 5 0 8 .) Dr. Atul recommended that Douglass attend individual therapy sessions. (Id. at 506.) S h e was taking Buspar for anxiety, Remeron, and Cymbalta for depression. (Id. at 507, 508.) D o u g la s s continued her treatment with NCBHS through August 2007, at which time h e r case was closed due to noncompliance. (A.R. 479-542, 594.) During that period, she had c o n tin u o u s individual therapy, group therapy, medication monitoring, and psychiatric s e rv ic e s . (Id.) Progress notes indicate Douglass had good and bad days, and had bouts of d e p re s s io n and sadness at times over certain events in her life, including her daughter's tragic d e a th in 2007. (Id. at 486.) Her treatment objectives included working on managing her d e p re s s io n , PTSD, anxiety, mood problems, and seeing the doctor for her medications. (Id. a t 479, 485.) She reported being in severe pain, running out of her pain medications, and lo s in g her medical card. (Id. at 535, 486.) In March 2008, Douglass once again sought treatment from NCBHS. (A.R. 577-95.) A t that time, she described a number of problems, including a depressed mood, crying spells, s o c ia l withdrawal, loss of energy, changes in sleep patterns, anxiety exacerbated by ongoing p h ys ic a l pain, and unresolved grief over the loss of her daughter. (Id. at 577-78.) Progress n o te s indicate Douglass had stopped participating in NCBHS treatment in 2007 because of tra n s p o rta tio n problems. (Id. at 578.) In May 2008, Douglass reported she was depressed and believed her depression had w o rs e n e d due to untreated physical pain and continuing difficulties over the loss of her

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daughter. (A.R. 605.) Treatment notes indicate she had stopped seeking treatment for her b a c k pain because she did not have any health insurance, and her severe pain seemed to u n d e rlie all of her current problems. (Id.) She was prescribed Trazodone and Citalopram f o r depression and sleep disturbances. (Id. at 615-16.) C. D o u g la s s 's Testimony A t the administrative hearing, Douglass testified that she stopped working at the end o f October 2003, due to carpal tunnel and trigger thumb syndrome, and neck, hip, leg, and b a c k pain. (A.R. 641, 644.) Douglass stated she collected benefits on a workers'

c o m p e n s a tio n claim for her carpal tunnel and trigger thumb syndrome. (Id. at 640-42.) She in d ic a te d she had not worked for quite a while due to her conditions and the last time she w o rk e d was for about a four or five week period in May 2005, until the company closed. (Id. a t 643.) When Douglass worked on a regular basis, she held a job as a lead scale worker at Illin o is Laundry. (A.R. 85, 113, 644.) Her duties entailed pushing, pulling, and maneuvering la rg e carts of laundry material onto large floor scales, and cataloging the contents of the carts. (Id . at 218, 674-75.) She stated an empty cart weighed approximately 150 to 160 pounds, a n d a full cart weighed 400 to 550 pounds. (Id.) Douglass estimated she maneuvered at least 7 5 carts per day. (Id. at 218.) Her duties also included shrink-wrapping items in plastic, w h ic h entailed bending over, pulling the plastic out of a container, wrapping the items, s e a lin g them, and weighing them. (Id. at 675.) While performing these duties, she

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experienced "extreme pain" in her neck, lower back, left leg, hip, and hands, and she also s u f f e re d from headaches. (Id. at 644.) When Douglass returned to work for a four to five w e e k period in May 2005, she performed different, fewer, and easier duties than she had in p re v io u s role as a lead scale worker. (Id. at 73.) D o u g la s s testified that she had not taken her medications, including Trazodone and C ita lo p ra m , for two weeks prior to the hearing because she did not have money to buy them a n d because she and her son no longer qualified for Medicaid. (A.R. 645-47.) Douglass s ta te d her son, who provided her with financial support, would sometimes purchase her m e d ic a tio n . (Id. at 645, 661.) She testified that she felt slightly better when she took the m e d ic a tio n . (Id. at 646-47.) She remembered taking pain medication prescribed by Drs. K a lra and Pilar-Estilo in either 2005 or 2006. (Id. at 647.) She further indicated that when s h e previously took her medication, it made her feel very drowsy in the morning and, as a re s u lt, she would need to take two to three naps during the day. (Id. at 648.) She explained that her carpal tunnel syndrome, neck and back pain, depression, PTSD, a n d anxiety caused certain limitations that precluded her from working. (A.R. 649-50.) She te s tif ie d she could not pull or push easily. (Id at 650.) For example, Douglass indicated she h a d difficulty with opening an outside storm door because it was hard for her to pull, but she w a s able to open a normal bathroom or bedroom door. (Id. at 650-51.) She also had d if f ic u lty opening office building doors, but could open a car door. (Id. at 651.)

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Next, Douglass stated that she was limited in what she could do because of her severe n e c k and back pain. (A.R. 652.) She indicated she could not stand in one spot for very long, a n d had to move around, sit down, or lay down. (Id.) Douglass testified, for example, that s h e could only stand for two or three minutes at a time. (Id.) She could only wash five or s ix dishes at a time because she has pain standing. (Id. at 653, 664.) It was hard for D o u g la s s to lift her arms above her shoulders to brush her hair because she felt a pulling s e n s a tio n along the top of her arms that caused pain. (Id. at 652-53.) Douglass, however, w a s able to use her hands and arms if they were positioned below her shoulders and waist a re a . (Id. at 654.) S h e testified that she had limitations in walking. (A.R. 655.) She had difficulty w a lk in g half a block due to lower back and buttock pain. (Id.) She was unable to lift a g a llo n of milk because of her neck and back pain, but could lift a half gallon of milk with tw o hands when required. (Id. at 656.) When bending over and picking something up, D o u g la s s testified she would need to lean on something and would have a lot of pain. (Id.) D o u g la s s further explained she had difficulty with personal hygiene and it took her o n e to two hours to take a bath. (A.R. 660.) She had back pain when getting into and out o f the bath tub, and when dressing herself. (Id. at 660-61.) Douglass stated she used to bathe tw ic e a week, but was only bathing once a week because of the extreme pain she had in her n e c k , back, and arms from lowering and lifting herself in and out of the bath tub. (Id. at 6 7 0 .)

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She testified she smoked about half a pack to a pack of cigarettes a day, when she had th e m . (A.R. 661, 670-71.) Her son, who provided her financial support, would buy her a " p a c k of cigarettes now and then." (Id. at 661-62.) She testified that, during the month b e f o re the hearing, her son bought her "[m]aybe six, seven" packs of cigarettes. (Id. at 671.) Douglass stated she was not able to perform household chores. (A.R. 663-64.) For e x a m p le , she could not make her bed, vacuum, grocery shop, or do laundry. (Id.) She stated h e r son and a family friend would do the grocery shopping, and her son did the laundry as s h e was unable to lift it. (Id.) Regarding meal preparation, she was only able to prepare s im p le meals using a microwave oven. (Id. at 663.) W ith regard to her social activities, Douglass indicated her friends visited her a p p ro x im a te ly twice a week, and she would visit her sister twice a year. (A.R. 664.) She, h o w e v e r, did not like being around other people because she was in pain all of the time. (Id. a t 666.) Douglass did not belong to any clubs or organizations and did not attend church. (Id . at 664-65.) She watched television about two to three hours each day, and read about f if te e n minutes once or twice a week. (Id. at 665.) Douglass last drove about a month before th e hearing when she went to her attorney's office. (Id. at 659-60.) Douglass testified she had difficulty with concentration, memory, and associating with o th e r people. (A.R. 658-59.) She explained that her problems with concentration and m e m o ry impacted her ability to keep appointments. (Id. at 672.) Sometimes, she arrived for a n appointment on the wrong day or at the wrong time. (Id.) Douglass's memory problems

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also caused her to let the water run in the sink causing it to overflow. (Id. at 671.) She stated s h e had anxiety and she once went to the emergency room because of chest pain and a racing h e a rt. (Id. at 673.) Furthermore, she explained she experienced PTSD as a result of her m o th e r's death in 2005, because it brought back memories of violence and abuse she endured a s a child, and because of her daughter's violent death in a car accident in 2007. (Id. at 667.) N e x t, she stated that she frequently cried and lacked energy because she suffered from d e p re s s io n . (A.R. 667-68.) Douglass would sometimes stay in bed for three to four days at a time and not take care of herself. (Id. at 668.) The last time she stayed in bed for that le n g th of time was about four months before the hearing. (Id.) Douglass testified her d e p re s s io n precluded her from attending to important matters. (Id.) She stated she was told b y her psychiatrist she had a condition called dysthymia (chronic mood disorder) which w o u ld likely lead to a diagnosis of bipolar disorder. (Id. at 669.) She explained that such a d ia g n o s is would explain why she would feel pretty good for a while and then a few hours la te r she would either need to lay down or would be moping around. (Id.) D o u g la s s stated that she still had numbness and tingling in her hands as well as p ro b le m s with trigger thumbs, which were her biggest problems. (A.R. 677.) Her thumbs h u rt and popped all of the time, and affected her ability to pick up or hold things. (Id.) D o u g la s s dropped things all the time, could not use a can opener, and had difficulty picking u p small things. (Id. at 677-78.) She explained she had neck pain everyday. (Id. at 679.)

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Her pain made the back of her shoulders and top of her arms sore, and she lost strength in her a rm s . (Id. at 680.) She also had at least one headache each day due to her neck pain. (Id.) F in a lly, Douglass testified that during a typical day, she would often lay down or sleep o n and off for four to five hours due to her pain, and use a heating pad. (A.R. 681.) Her o v e ra ll pain level was seven to nine out of ten on an average or bad day, and was five out of te n on a good day. (Id. at 683.) She only has about two or three good days in a month. (Id.) D. S p e n c e r 's Testimony S p e n c e r, a family friend, testified on behalf of Douglass. (A.R. 689-92.) He stated that he saw Douglass every day and corroborated that she was constantly in pain. (Id. at 6 8 9 .) Spencer saw Douglass try to wash dishes and noticed she would have to sit down after s ta n d in g for about ten minutes, or go into her bedroom to use a heating pad. (Id. at 689-90.) S p e n c e r testified that Douglass had difficulty lifting objects, sitting, and standing. (Id. at 6 9 0 .) He typically did the grocery shopping for Douglass. (Id.) If Douglass did go to the g ro c e ry store, Spencer would take her and do all of the reaching, grabbing, and carrying of th e groceries. (Id. at 690-91.) He indicated he noticed Douglass having problems with her h a n d s because she was always rubbing her thumbs, and was tearful due to her constant pain. (Id . at 691.) Spencer stated the heaviest object Douglass could lift was her purse and her p a in limited her to very basic cleaning of her house. (Id. at 691-92.)

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E.

G u s ta fs o n 's Testimony G u s t a f s o n , a VE, testified that Douglass could not perform her past work as it

in c lu d e d medium level work and involved more than occasional stooping. (A.R. 685.) The A L J asked Gustafson whether a hypothetical person of Douglass's age, education and work e x p e rie n c e , but who is limited to light exertional work, moderately complex or detailed tasks, o c c a s io n a l contact with the public, coworkers, and supervisors, and has limited overhead re a c h in g abilities and occasional postural activities could perform any work. (Id.) Gustafson a n s w e re d that such an individual could perform manufacturing and housekeeping cleaning jo b s . (Id.) There were about 14,000 light work jobs in the State of Illinois and examples of s u c h jobs included hotel room cleaners and office cleaners. (Id. at 685-86.) Gustafson also te s tif ie d that if the residual functional capacity ("RFC") was reduced to simple, routine work, th a t would not change the types of available jobs. (Id. at 686.) T h e ALJ next altered the hypothetical and asked Gustafson if there were any jobs the h yp o th e tic a l person could perform if the work entailed sedentary work, including lifting up to ten pounds occasionally; less than ten pounds frequently; negligible weight occasionally; s ittin g a total of eight hours in a day; standing for no more than two hours in a day; with m o d e ra te ly complex or detailed tasks; occasional contact with the public, coworkers, and s u p e rv is o rs ; occasional overhead reaching; and occasional postural activities. (A.R. 686.) G u s ta f s o n indicated that such an individual could perform manufacturing jobs. (Id. at 687.) Some examples of these jobs include packaging and filling machine operators (360 jobs),

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production inspection (470 jobs), production workers (1,800 jobs), and industrial laborer in m a te ria l handling (3,500 jobs). (Id.) Gustafson further testified that if the hypothetical posed b y the ALJ was altered for simple, routine work activity, none of these jobs would be e lim in a te d . (Id.) Finally, the ALJ asked Gustafson what would happen to the job base if fine hand m a n ip u la tio n was limited to frequent, and he responded that the number of jobs would be e lim in a te d by one-third. (A.R. 687-88.) However, Gustafson stated that if an individual was le s s than eighty percent productive on the job, that would rule out any job over time because th a t individual would eventually lose the job due to inadequate productivity. (Id. at 688.) F. T h e ALJ's Decision T h e ALJ issued a decision finding that Douglass was not disabled within the meaning o f the Act. (A.R. 23.) The ALJ found that Douglass had at least a high school education 3 a n d was defined as a younger individual because she was forty-four years old, as of the a lle g e d onset date of her disability, October 29, 2003. (Id. at 21.) The ALJ initially d e te rm in e d that Douglass had met the insured status requirements under the Act through

3

The ALJ incorrectly found that Douglass had at least a high school education. (A.R. 21.) A t the hearing, Douglass testified that she completed the eighth grade, but never obtained a g e n e ra l equivalency diploma. (Id. at 642.) In the responsive brief, the Commissioner points o u t that the ALJ's error is harmless because the application of Grid Rule 202.17, which refers to a person of limited education, produces a finding of "not disabled." Douglass does not d is p u te this in her reply brief. 18

December 31, 2008. (Id. at 13.) Next, the ALJ found that Douglass had not engaged in s u b s ta n tia l gainful activity since the alleged onset date of her disability. (Id.) T h e ALJ found that the medical evidence established Douglass suffered from severe im p a irm e n ts, including a back disorder, depression, and PTSD. (A.R. 13.) However, the A L J determined that Douglass did not have an impairment or combination of impairments lis te d in, or medically equal to one listed in 20 C.F.R. § 404, Subpt. P, App.1. (Id.) The ALJ th e n assessed Douglass's RFC to determine what work she could perform despite her lim ita tio n s . (Id. at 15-21.) The ALJ found that Douglass could perform light work limited to work activity involving only occasional overhead reaching, and only occasional postural a c tiv itie s . (Id. at 15.) The ALJ further found that, as a result of Douglass's depression and b ip o la r disorder, she was limited to moderately complex or detailed tasks, and limited to only o c c a s io n a l contact with the public, co-workers, or supervisors. (Id.) In reaching this conclusion, the ALJ discussed Douglass's extensive medical history a n d agreed that her impairments could reasonably be expected to cause the alleged s ym p to m s . (A.R. 16-21.) However, the ALJ decided Douglass lacked credibility with regard to her description of the intensity, persistence, and limiting effects of those symptoms. (Id. a t 16-17.) In the ALJ's view, Douglass lacked credibility because the medical record was " n o t wholly consistent" with her claims of disabling symptoms. Additionally, the ALJ found D o u g la s s 's claims of disabling symptoms not credible because she: (1) engaged in an array o f daily activities; (2) failed to comply with prescribed medical treatment, including taking

19

prescription medications; (3) purchased cigarettes rather than medication; (4) stopped w o rk in g in 2005, due to a business-related layoff (and produced no evidence that showed her c o n d i tio n had deteriorated since the layoff); and (5) was released to return to work by one o f her treating doctors. (Id. at 17.) The ALJ next found that Douglass was unable to perform her past relevant work. (A .R . 21.) He determined, however, notwithstanding Douglass's limitations, that a

s ig n if ic a n t number of jobs existed in the national economy that she could perform. (Id. at 2 2 .) Analysis D o u g la s s is entitled to a remand because the ALJ failed to explain how the medical e v id e n c e was inconsistent with her disabling condition, and the ALJ's reasons regarding her c re d ib ility are not supported by the record. A. S ta n d a r d of Review The applicable standard of review of the Commissioner's decision is a familiar one: th e court must affirm the decision if it is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means "such relevant evidence as a reasonable mind might a c c e p t as adequate to support a conclusion." Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2 0 0 8 ) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). The court may not re e v a lu a te the facts, reweigh the evidence, or substitute its judgment for that of the Social S e c u rity Administration. Binion on Behalf of Binion v. Chater, 108 F.3d 780, 782 (7th Cir.

20

1997). Where conflicting evidence would allow reasonable minds to differ as to whether a p la in tif f is disabled, the Commissioner has the responsibility for resolving those conflicts. Id . Conclusions of law are not entitled to such deference, however, so where the

C o m m is s io n e r commits an error of law, the court must reverse the decision regardless of the e v id e n c e supporting the factual findings. Id. W h ile the standard of review is deferential, the court "must do more than merely ru b b e r stamp" the Commissioner's decision. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2 0 0 2 ) (citations omitted). In order for the court to affirm a denial of benefits, the ALJ must h a v e "articulated" the reasons for the decision at "some minimum level." Dixon v.

M a s s a n a r i, 270 F.3d 1171, 1176 (7th Cir. 2001). This means that the ALJ "must build an a c c u ra te and logical bridge from the evidence to [the] conclusion." Id. Although an ALJ n e e d not address every piece of evidence, the ALJ cannot limit his decision to only that e v id e n c e that supports his ultimate conclusion. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1 9 9 4 ). The ALJ's decision must allow the court to assess the validity of his findings and a f f o rd the plaintiff a meaningful judicial review. Scott, 297 F.3d at 595. B. F iv e -S te p Inquiry T o qualify for DIB and SSI under Titles II and XVI, a claimant must establish that she h a s a "disability" within the meaning of the Act.4 42 U.S.C. §§ 423(a)(1)(D), 1382(a). An

4

The regulations governing the determination of disability for DIB are set forth at 20 C.F.R. § 404.1501 et seq. The SSI regulations, which are nearly identical to the DIB regulations, a re found at 20 C.F.R. § 416.901 et seq. 21

individual is "disabled" if she has an "inability to engage in any substantial gainful activity b y reason of any medically determinable physical or mental impairment which can be e x p e c te d to result in death or which has lasted or can be expected to last for a continuous p e rio d of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a); S k in n e r v. Astrue, 478 F.3d 836, 844 (7th Cir. 2007). The Social Security regulations set f o rth a five-step sequential inquiry for determining whether a claimant is disabled. The ALJ m u s t consider whether: (1 ) the claimant is presently [un]employed; (2) the claimant has a severe im p a irm e n t or combination of impairments; (3) the claimant's impairment m e e ts or equals any impairment listed in the regulations as being so severe as to preclude substantial gainful activity; (4) the claimant's residual functional c a p a c ity leaves [her] unable to perform [her] past relevant work; and (5) the c la im a n t is unable to perform any other work existing in significant numbers in the national economy. B ris c o e ex rel. Taylor v. Barnhart, 425 F.3d 345, 351-52 (7th Cir. 2005) (citing 20 C.F.R. § 404.1520). An affirmative answer to each step leads either to the next step or, at steps 3 and 5, to a finding that the claimant is disabled within the meaning of the Act. 20 C.F.R. § 404.1520; Briscoe, 425 F.3d at 352. A negative answer at any point, other than step 3, t e r m i n a te s the inquiry and leads to a determination that the claimant is not disabled. 20 C .F .R . § 404.1520; Stein v. Sullivan, 892 F.2d 43, 44 (7th Cir. 1989). The claimant bears the b u rd e n of proof through step four. Briscoe, 425 F.3d at 352. And, if all four steps are met, th e burden shifts to the Commissioner at step five. Id. The Commissioner must then

22

establish that the claimant -- in light of her age, education, job experience and RFC to work -- is capable of performing other work and that such work exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. § 404.1520(f). C. C r e d ib ility Finding D o u g la s s brings several challenges to the ALJ's decision that she was not disabled as o f October 29, 2003. She first contends that the record lacks substantial evidence to support th e ALJ's finding that her complaints and limitations pertaining to her pain and mental im p a irm e n ts are not credible. (Pl.'s Mem. at 8-12.) Douglass also contends that the ALJ's h yp o th e tic a l questions to the VE either support a finding of disability or were deficient.5 (Id. a t 12-13.) The Commissioner, on the other hand, contends that the ALJ's decision is s u p p o rte d by substantial evidence and that he correctly found that Douglass is capable of p e rf o rm in g light work with certain stated limitations. (Def.'s Mem. at 7-9.) The

C o m m is s io n e r also contends that the record contains two medical opinions that are consistent w ith the ALJ's RFC finding that Douglass is capable of performing light work. (Id.) T h e court agrees with Douglass that the ALJ erred in his credibility assessment of her te s tim o n y at the hearing and that a remand on this issue is required. An ALJ's credibility f in d in g will be afforded "considerable deference" and overturned only if it is "patently

5

In her memorandum and reply, Douglass failed to sufficiently develop this argument to a llo w for meaningful judicial review. Accordingly, the Court considers this argument w a iv e d . See United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) ("[P]erfunctory a n d undeveloped arguments, and arguments that are unsupported by pertinent authority, are w a iv e d ." ) 23

wrong." Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006) (citations omitted). "A c re d ib ility assessment is afforded special deference because an ALJ is in the best position to s e e and hear the witness and determine credibility." Shramek v. Apfel, 226 F.3d 809, 811 (7 th Cir. 2000) (citation omitted). However, where the credibility determination is based on o b je c tiv e factors rather than subjective considerations, an ALJ is in no better position than th e court and the court has greater freedom to review it. Craft v. Astrue, 539 F.3d 668, 678 (7 th Cir. 2008). Social Security Ruling ("SSR") 96-7p instructs that the ALJ's written d e c is io n "must contain specific reasons for the finding on credibility, supported by the e v id e n c e in the case record, and must be sufficiently specific to make clear to the individual a n d to any subsequent reviewers the weight the adjudicator gave to the individual's s ta te m e n ts and the reasons for that weight." SSR 96-7p, 1996 WL 374186, at *2; Brindisi v . Barnhart, 315 F.3d 783, 787 (7th Cir. 2003). In the context of assessing testimony of pain, once it is established that the claimant h a s a medically determinable impairment that could reasonably be expected to produce the a lle g e d disabling symptoms, an ALJ is required to evaluate the claimant's subjective c o m p la in ts of pain, by considering the objective medical evidence and any additional i n f o r m a t i o n provided by the claimant, physicians, or others. 20 C.F.R. § 404.1529. If a c la im a n t's allegations of pain are not supported by objective medical evidence, an ALJ must e v a lu a te pain by looking to a number of other factors to determine credibility, including d a ily activities, information and observations made by treating and examining physicians,

24

precipitating and aggravating factors, dosage and effectiveness of pain medication, functional re s tric tio n s , and other treatment for pain relief. Zurawski v. Halter, 245 F.3d 881, 887 (7th C ir. 2001) (citation omitted). Therefore, an ALJ may not "discredit the claimant's testimony a s to subjective symptoms merely because they are unsupported by objective [medical] e v id e n c e ." Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir. 2004) (citations omitted). Here, the ALJ found that Douglass's statements concerning the intensity, persistence, a n d limiting effects of her symptoms were not credible to the extent they conflicted with the m e d ic a l records and RFC determination. (A.R. 17-18.) Additionally, the ALJ viewed D o u g la s s 's allegations of disabling symptoms as not credible because she: (1) engaged in a n array of daily activities; (2) failed to comply with prescribed medical treatment, including ta k in g prescription medications; (3) purchased cigarettes rather than medication; (4) stopped w o rk in g in 2005, due to a business-related layoff (and produced no evidence that showed her c o n d itio n had deteriorated since the layoff); and (5) was released to return to work by one o f her treating doctors. 1. M e d ic a l History

T h e ALJ found Douglass not credible because "the medical record is not wholly c o n s is te n t with the claimant's allegations of disabling symptoms." (A.R. 17.) The ALJ then lis te d many of Douglass's medical records, but he failed to provide any insight into how he e v a lu a te d those records. The court's review of the record shows that the medical evidence s u p p o rts Douglass's pain allegations and establishes she suffers from a myriad of physical

25

and mental impairments. For example, Douglass's back pain is substantiated by objective m e d ic a l testing, which shows: (1) a central to right posterolateral C5-C6 herniated disc, and p a rtia l left C5-C6 postarthritic neuroforaminal stenosis secondary to osteoarthrosis (A.R. 18, 3 6 8 ); (2) right mid to lower thoracic spine degenerative joint disease with an incidental f in d in g of a moderate to large sized C5-C6 disc protrusion, with possible cord impingement, s ig n if yin g a herniated disc and a smaller disc protrusion at C6-C7 (id. at 19, 373-74); (3) mild to moderate lumbar spondylosis with moderate to severe L5-S1 disc degeneration (id. at 20, 2 4 5 ); (4) a posterior disc bulge at C5-C6 with narrowing of the spinal canal down to 7.4 m illim e te rs and flattening of the spinal cord, and partial left neuroforaminal narrowing at C5C 6 (id. at 20, 233-34); and (5) central canal stenosis at L2-L3, and marked narrowing of the le f t neural foramen at L3-L4 (id. at 116). Additionally, a November 3, 2003, handwritten n o te on an x-ray evaluation of Douglass's pelvis and left hip, states her pain is coming from th e L5-S1 level, where incidentally "severe degenerative changes at the L5-S1 level" are n o te d . (Id. at 122.) Furthermore, the medical record in this case establishes that Douglass sought e x te n s iv e treatment for her severe neck, back, and hip pain over a four-year period, which in c lu d e d diagnostic tests, lumbar epidural steroid injections, physical therapy, TENS and ID D therapy, and narcotic pain medications. (A.R. 116, 122, 185, 211, 213, 233-34, 235, 2 3 7 -3 9 , 255, 257-58, 259-60, 243-44, 245, 261-62, 263, 271, 303, 308, 310, 348, 357-58, 3 5 9 , 361, 363-65, 368, 373, 376-77, 456-57, 463-68, 546, 563, 565.) There is also ample

26

evidence in the medical record supporting Douglass's other physical pain and limitations a s s o c ia te d with her hands, which included bilateral carpal tunnel release and trigger thumb re le a s e surgery. (Id. at 178-82, 216-28, 280-81, 385, 387-88, 391, 401-03, 405, 408-10, 414, 4 1 5 , 417-18, 420, 430, 438.) Finally, there is sufficient record evidence demonstrating that Douglass suffered from depression, PTSD, and anxiety from 2004 through 2008. (A.R. 124-28, 139-52, 153-58, 4795 4 2 , 577-95, 605, 615-16.) Her treatment included individual therapy, group therapy, p s yc h ia tric care, and medication. (Id.) At the hearing, Douglass testified that her overall pain level was seven to nine out of te n on an average or bad day, and was five out of ten on a good day. (A.R. 683.) She only h a s about two or three good days in a month. (Id.) Douglass explained that during a typical d a y she would often lay down or sleep on and off for four to five hours due to pain, and also u s e d a heating pad. (Id. at 681.) She indicated she could not walk more than half a block, h a d difficulty with personal hygiene, and could not do household chores because of her s e v e re pain. (Id. at 655, 660, 663-64.) Douglass further testified that she suffered from d e p re s s io n and PTSD and had problems with concentration, memory, and associating with o th e r people. (Id. at 658-59, 667-68.) The ALJ overlooked ample evidence corroborating Douglass's claims of severe pain a n d mental limitations, and did not explain why the medical evidence was inconsistent with th e level of pain and limitation Douglass described. It is not enough for the ALJ to simply

27

recite the medical record in the case without any discussion of the weight he gave to the e v id e n c e . Accordingly, the ALJ's conclusory finding that the medical evidence was not " w h o lly consistent" with Douglass's allegations of disabling symptoms lacks the specificity n e e d e d to permit a meaningful review by a court. Zurawski, 245 F.3d 887-88; Clifford v. A p fe l, 227 F.3d 863, 870 (7th Cir. 2000) (an ALJ "must minimally articulate his reasons for c re d itin g or rejecting evidence of disability"); Carradine v. Barnhart, 360 F.3d 751, 753 (7th C ir. 2004) (an ALJ may not "discredit the claimant's testimony as to subjective symptoms m e re ly because they are unsupported by objective [medical] evidence"). 2. D a ily Activities

T h e ALJ found that Douglass lacked credibility because she is "able to engage in an a rra y of daily activities." (A.R. 14, 17.) The ALJ determined that Douglass is able to care f o r her own personal hygiene, prepare simple meals, make a pot of coffee, dust, wash dishes, d riv e to legal and medical appointments, watch television for two to three hours each day, re a d a few times a week, visit with family and friends, and grocery shop. (Id. at 14.) The ALJ's reliance on these daily activities is misplaced because he mischaracterized m o s t of Douglass's testimony regarding them. For example, while the ALJ found that D o u g la s s could grocery shop, she actually testified she could not grocery shop, and that her s o n and Spencer would do the grocery shopping for her. (A.R. 663-64.) Douglass further e x p la in e d that when she did go to the grocery store, Spencer would take her and do all of the re a c h in g , grabbing, and carrying of the groceries. (Id. at 690-91.) Next, the ALJ found that

28

Douglass was capable of caring for her own personal hygiene. (Id. at 14.) However, D o u g la s s testified that she has difficulty with personal hygiene and it took her one to two h o u rs just to take a bath. (Id. at 660.) She stated that she used to bathe twice a week, but was o n ly bathing once a week because of the extreme pain she had in her neck, back, and arms f ro m lowering and lifting herself in and out of the bath tub. (Id. at 660-61, 670.) Douglass a ls o explained that she had difficulty brushing her hair because she had to lift her arms above h e r shoulders, which caused a pulling sensation along the top of her arms causing pain. (Id. a t 652-53.) The ALJ further mischaracterized Douglass's testimony regarding her ability to p e rf o rm household chores, attend medical and legal appointments, and visit with family and f rie n d s . Douglass testified she was not able to do household chores; she could not make her b e d , vacuum, or do laundry. (A.R. 663-64.) She explained that her son did the laundry b e c a u s e she could not lift it. (Id.) Douglass stated she could only wash five or six dishes at a time because she has pain standing and could only stand for two or three minutes at a time. (Id . at 652-53, 664.) With respect to Douglass's ability to attend legal and medical

a p p o in tm e n ts , she testified that, due to her difficulty with concentration and memory, she o f te n missed appointments and arrived for an appointment on the wrong day or at the wrong tim e . (Id. at 672.) Finally, Douglass explained that while friends visited her approximately tw ic e per week, she did not like being around people because she was in pain all of the time. (Id. at 664, 666.)

29

Next, after mischaracterizing Douglass's testimony, the ALJ improperly determined th a t Douglass's ability to perform limited and restricted daily activities was consistent with h e r ability to perform work-related activities. In Zurawski, a claimant's ability to wash d is h e s , help children prepare for school, do laundry, and prepare dinner were "fairly re s tric te d " activities that did not necessarily undermine a claim of disabling pain. 245 F.3d a t 887. Similarly, in Clifford, the daily activities of a claimant who was able to perform h o u s e h o ld chores (lasting for two hours and punctuated by rest), cook simple meals, go g ro c e ry shopping three times per month, and sometimes carry groceries from her car to her a p a rtm e n t were characterized as minimal and were not inconsistent with her claims of d i s a b l in g pain. 227 F.3d at 872. Here, Douglass testified in detail about how her pain lim ite d her daily activities, and there is nothing contradicting her testimony. Furthermore, a s discussed supra, the objective medical evidence, in large part, substantiates her physical a n d mental limitations. 3. M e d ic a l Treatment

T h e ALJ found Douglass's allegations of disabling symptoms not credible because s h e "has not been entirely compliant in taking prescribed medications and following medical a d v ic e , which suggests that the symptoms may not have been as limiting as the claimant has a lle g e d in connection with this application." (A.R. 17.) In support of the ALJ's finding, the C o m m is s io n e r contends that the record is replete with Douglass's failure to follow through

30

on treatment recommendations. (Def.'s Resp. at 10.) The ALJ's finding is not supported by th e record. Regarding Douglass's medical treatment, SSR 96-7p provides in pertinent part: [ T ]h e adjudicator must not draw any inferences about an individual's s ym p to m s and their functional effects from a failure to seek or pursue regular m e d ic a l treatment without first considering any explanations that the in d iv id u a l may provide, or other information in the case record, that may e x p la in infrequent or irregular medical visits or failure to seek medical tre a tm e n t. The adjudicator may need to recontact the individual or question th e individual at the administrative hearing in order to determine whether there a re good reasons the individual does not seek medical treatment or does not p u rs u e treatment in a consistent manner. The explanations provided by the in d iv id u a l may provide insight into the individual's credibility. 1996 WL 374186, at *7. SSR 96-7p also sets forth examples for why a claimant may choose n o t to seek medical treatment, including the explanation that "the individual may be unable to afford treatment and may not have access to free or low-cost medical services." Id. at *8. Accordingly, even though a claimant's failure to seek medical treatment may be inconsistent w ith a claim of disabling impairments, an ALJ "must not draw any inferences about a c la im a n t's condition from this failure unless the ALJ has explored the claimant's e x p la n a tio n s as to the lack of medical care." Craft, 539 F.3d at 679. A s discussed supra, the medical evidence in this case establishes that Douglass sought e x te n s iv e treatment for her physical and mental impairments, including severe neck, leg, hip, a n d back pain, as well as depression, PTSD, and anxiety. While the ALJ correctly noted that D o u g la s s was "not entirely compliant in taking prescribed medications and following m e d ic a l advice," in the few instances where Douglass failed to follow through with 31

treatment, she offered explanations for her failure. For example, Douglass testified that she h a d been out of medication for a long time because she did not have medical insurance, m o n e y, or a state medical card. (A.R. 642, 646-47.) She also explained that when her son tu rn e d 19, they both lost coverage under Medicaid. (Id. at 647.) Therefore, at certain times, D o u g la s s was unable to afford her medication. It is impossible, however, to tell from the A L J 's decision whether he considered this explanation. Next, with respect to her mental health treatment, NCBHS medical records indicate D o u g la s s missed some of her appointments because she had problems with her 20-year old tru c k . (A.R. 578, 600, 605.) In fact, in August 2007, Douglass stopped her treatment with N C B H S because of problems with her truck. (Id. at 578, 605.) Even after she was able to re s u m e her mental health treatment with NCBHS, treatment notes indicate that she was a n x io u s about making medical appointments and struggled to keep them because of her o n g o in g transportation problem. (Id. at 600.) Once again, the ALJ failed to discuss this le g itim a te explanation for Douglass's missed appointments, and this court cannot tell w h e th e r he considered it at all. Furthermore, the ALJ failed to consider Douglass's mental impairments when e v a lu a tin g her lack of compliance with medical treatment. The Seventh Circuit has re c o g n iz e d that "mental illness in general and bipolar disorder in particular . . . may prevent th e sufferer from taking her prescribed medications or otherwise submitting to treatment." K a n g a il v. Barnhart, 454 F.3d 627, 630 (7th Cir. 2006) (citations omitted). Here, the ALJ

32

did not consider whether Douglass, who he found had been diagnosed with bipolar disorder, m a y not have been compliant with taking her medications and pursuing treatment due to her m e n ta l illness. See Wadsworth v. Astrue, No. 07-cv-0832, 2008 WL 2857326, at * 8 (S.D. In d . July 21, 2008) (credibility finding reversed where the ALJ concluded that "the claimant h a s not generally received the type of medical treatment one would expect for a totally d is a b le d individual"). 4. M e d ic a t io n s

The record does not support the ALJ's finding that Douglass lacked credibility b e c a u s e her son purchased cigarettes for her instead of medication. (A.R. 17.) In his d e c is io n , the ALJ stated: The claimant testified there have been long periods where she has gone w ith o u t medications due to lack of finances. Despite this, the claimant t e s tif ie d she has continued to smoke throughout the entire period at issue. D u rin g examination by the undersigned, the claimant testified she smokes oneh a lf pack to one pack of cigarettes per day. She testified her son buys her the c ig a re tte s . The undersigned finds this testimony without credibility where the f a m ily can afford cigarettes but not medications. Under cross-examination by h e r attorney, the claimant modified her testimony, and testified she only s m o k e s when she has cigarettes, and does not have cigarettes everyday. ( I d .) Here, the ALJ mischaracterizes Douglass's testimony when he found she continued to smoke instead of taking her medications. Douglass testified that she smokes about half a pack to a pack of cigarettes a day, when she has them, and her son would buy her a "pack o f cigarettes now and then." (A.R. 661-62, 670-71.) She further explained that, during the

33

month before the hearing, her son bought her "[m]aybe six, seven" packs of cigarettes. (Id. a t 671.) Therefore, the ALJ improperly linked the purchase of cigarettes with Douglass's c h o ic e not to take her medication. 5. L a y o ff

The ALJ further based his negative credibility finding on the fact that Douglass returned to work for about a four or five week period in May 2005. Shortly after Douglass re tu rn e d to work, she was laid off because the company closed. The ALJ stated: The claimant stopped working in 2005 due to a business-related layoff rather t h a n because of the alleged disabling impairments. Further, there is no e v id e n c e of a significant deterioration in the clamant's medical condition since th a t layoff. A reasonable inference, therefore, is that the claimant's im p a irm e n ts would not prevent the performance of that job, since it was being p e rf o rm e d adequately at the time of the layoff despite a similar medical c o n d itio n . (A.R. 17.) H o w e v e r, when Douglass returned to work, she had different, fewer, or easier duties. (A.R. 74.) Additionally, during that period, her hours varied from 20 to 37 hours each week. (Id. at 72.) While the ALJ properly found that Douglass stopped working in 2005 due to a la yo f f , he incorrectly evaluated her duties and assumed they remained unchanged from her p rio r work with the same company. Also, the record does not support the ALJ's finding that D o u g la s s was adequately performing her duties at the time she was laid off.

34

6.

W o r k Release

N e x t, the ALJ discredited Douglass's allegations of disabling pain because the record " c o n ta in s a statement from one of the claimant's doctors releasing the claimant to return to w o rk ." (A.R. 17.) The ALJ relied on an April 19, 2005, statement from Dr. Rezin, releasing D o u g la s s to return to light duty work, and then to full duty work, with no restrictions. (Id. a t 385.) The Commissioner avers Dr. Rezin is the only doctor who offered an opinion about D o u g la s s 's ability to work and "[s]ignificantly that opinion is consistent with the ALJ's RFC f in d in g ." (Def.'s Resp. at 11.) While the ALJ is correct that Dr. Rezin released Douglass to return to work, D r . Rezin's statement pertained only to her bilateral carpal tunnel syndrome and trigger th u m b problems. Dr. Rezin's statement did not take into account Douglass's neck, hip, leg, a n d back pain or her mental limitations. Dr. Rezin specifically noted that he would not be in v o lv e d in Douglass's neck and back issues. (A.R. 430.) Therefore, the ALJ improperly re lie d on Dr. Rezin's statement because it did not incorporate all of Douglass's limitations.

35

Conclusion F o r the foregoing reasons, Douglass's motion for summary judgment is granted and th i s case is remanded to the Commissioner for further proceedings consistent with this M e m o ra n d u m Opinion and Order.

ENTER:

_________________________________ Y o u n g B. Kim U n ite d States Magistrate Judge

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