Shewmake v. Astrue
Filing
31
MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 6/12/2014. (ma,)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES SHEWMAKE,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,1
Defendant.
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No. 12 CV 6339
Magistrate Judge Young B. Kim
June 12, 2014
MEMORANDUM OPINION and ORDER
James Shewmake seeks disability insurance benefits (“DIB”), see 42 U.S.C.
§§ 416(i), 423, claiming that he is unable to work because of his diabetes, Crohn’s
disease, Hepatitis C, and anxiety. After the Commissioner of the Social Security
Administration denied his application, Shewmake filed this suit seeking judicial
review. See 42 U.S.C. § 405(g). Before the court are the parties’ cross-motions for
summary judgment. For the following reasons, Shewmake’s motion is granted to
the extent that the case is remanded for further proceedings and the
Commissioner’s motion is denied:
Procedural History
Shewmake applied for DIB on May 12, 2010, claiming he became unable to
work as of June 1, 2009. (Administrative Record (“A.R.”) 35.) After his claims were
Pursuant to Federal Rule of Civil Procedure 25(d), Carolyn W. Colvin—who
became the Acting Commissioner of Social Security on February 14, 2013—is
automatically substituted as the named defendant.
1
denied initially and upon reconsideration, (id. at 108, 122), Shewmake sought and
was granted a hearing before an administrative law judge (“ALJ”), (id. at 137-38).
The ALJ held a hearing on September 27, 2011, at which Shewmake and a
vocational expert provided testimony. (Id. at 54.) On November 7, 2011, the ALJ
issued a decision finding that Shewmake is not disabled within the meaning of the
Social Security Act and denying his DIB claim. (Id. at 32-51.) When the Appeals
Council denied Shewmake’s request for review, (id. at 1-4), the ALJ’s denial of
benefits became the final decision of the Commissioner, see O’Connor-Spinner v.
Astrue, 627 F.3d 614, 618 (7th Cir. 2010). On August 10, 2012, Shewmake filed the
current suit seeking judicial review of the Commissioner’s decision. See 42 U.S.C.
§ 405(g); (R. 3). The parties have consented to the jurisdiction of this court. See 28
U.S.C. § 636(c); (R. 8).
Facts
Shewmake contracted Hepatitis C while serving in the Navy over 20 years
ago, (A.R. 465), was diagnosed with diabetes more than 10 years ago, (id. at 57), and
has suffered from anxiety disorder since at least July 2009, (id.).
He was also
diagnosed with Crohn’s disease during the summer of 2009. (Id. at 359.) A high
school graduate, Shewmake was a construction worker for nearly 20 years until he
was let go from his job in November 2008. (Id. at 248, 268, 332.) He was 44 years
old when he stopped working, is currently unemployed, and lives with his wife and
their two children. (Id. at 60-61.) Shewmake presented both documentary and
testimonial evidence in support of his claim.
2
A.
Medical Evidence – Physical Health
The relevant medical record begins in July 2009 when Shewmake sought
treatment at Primary Care Joliet (“PCJ”). (A.R. 468.) Shewmake initially was seen
by Laura Neilsen, a physician’s assistant, and during later visits was treated by
Linda Hushaw, a nurse practitioner (“NP”). (See, e.g., id. at 457, 585.) Dr. Yatin
Shah, an internal medicine doctor at PCJ, sometimes co-signed Shewmake’s
medical notes.
(See, e.g., id.)
When Shewmake visited PCJ in July 2009, he
reported having severe and frequent diarrhea ever since going on a camping trip a
couple weeks earlier.
(Id. at 352.) He was given antidiarrheal medications, (id.),
but ended up in the emergency room at Provena Saint Joseph Medical Center a
week later with bloody diarrhea and renal failure, (id. at 349). At that time he
reported having four bowel movements a day, abdominal cramping, and weight loss
of 32 pounds over the previous two weeks. (Id. at 353.) A colonoscopy and biopsy
confirmed that Shewmake had pancolitis (a severe form of ulcerative colitis) and
Crohn’s disease. (Id. at 359.)
During a follow-up visit to PCJ in early August 2009, Shewmake reported
that his diarrhea had ceased. (Id. at 465.) However, during subsequent visits in
October and November 2009, he reported having diarrhea again and was referred to
a gastroenterologist.
Shewmake
saw
Dr.
(Id. at 457, 461.)
Kamran
In December 2009 and February 2010,
Ayub
at
Southwest
Gastroenterology,
who
recommended an inflammatory bowel disease (“IBD”) panel and capsule
3
enterography testing. (Id. at 396-97.) The capsule endoscopy report noted “[f]ew
small erosions only.” (Id. at 392.)
Meanwhile Shewmake continued to visit PCJ from January through June
2010 on a monthly basis. Shewmake complained of diarrhea, fatigue, and weight
loss from January to April 2010. (Id. at 443, 446, 449, 453.) During an April 2010
visit NP Hushaw noted that Shewmake experienced a recent flare-up in his
ulcerative colitis symptoms after eating peanuts and deviled eggs, and that he ate
pancakes with syrup and sweetened iced tea the day of his visit. (Id. at 442-44.)
NP Hushaw recommended that he aim to exercise for 30 minutes three to five days
per week, and that he cut back on sodium, fast food, and foods high in protein. (Id.
at 444.)
Shewmake went to the emergency room at Silver Cross Hospital in May 2010
complaining of persistent diarrhea. (Id. at 404.) He was given steroids, which
improved his symptoms, and was discharged in stable condition.
(Id.)
But he
continued to report diarrhea, fatigue, and weight loss through June 2010, and NP
Hushaw again recommended that he stick to a healthy diet and cut back on foods
high in calories, fat, and sugar. (Id. at 429, 432, 436.) Shewmake went back to PCJ
for a follow-up visit in August 2010, during which he reported having recently gone
swimming in a lake. (Id. at 590.) He also complained of diarrhea, fatigue, and
weight loss. (Id. at 591.)
Later that August, Dr. Sarat Yalamanchili conducted a 40-minute
examination of Shewmake at the request of the Illinois Bureau of Disability
4
Determination Services (“DDS”).
(Id. at 537-40.)
Dr. Yalamanchili noted that
Shewmake had a history of diarrhea from Crohn’s disease as well as a history of
Hepatitis C and poorly controlled blood-sugar levels. (Id. at 538, 540.) He observed
that Shewmake was in no acute distress, his abdomen was “soft, nontender without
organomegaly [abnormal enlargement] or masses palpable[,]” and his bowel sounds
were “normoactive.”
(Id.)
Dr. Yalamanchili noted that Shewmake had some
difficulty with squatting and arising, and that his symptoms included “inability to
work because of his recurrent diarrhea.”
(Id. at 539-40.)
A few days later in
September 2010, Shewmake saw Dr. Mary DeGroot, a podiatrist at DeGroot Foot
and Ankle Clinic, for diabetic foot care and reported having gone on a “pretty
rugged” camping trip which left two of his toenails discolored. (Id. at 507.)
Later that September, Dr. Francis Vincent, a medical consultant, completed a
Physical Residual Functional Capacity (“RFC”) Assessment. (Id. at 529-36.) He
opined that Shewmake could lift 20 pounds occasionally and 10 pounds frequently,
stand or walk for about six hours in an eight-hour workday, sit for about six hours
in an eight-hour workday, and perform unlimited pushing and pulling. (Id. at 530.)
Dr. Vincent noted that Shewmake could frequently climb ramps or stairs and
balance, but because of low-back pain could only occasionally climb ladders, ropes,
or scaffolds, stoop, kneel, crouch, and crawl. (Id. at 531.) Dr. Vincent concluded
that Shewmake had no manipulative, visual, communicative, or environmental
limitations, except that he should avoid concentrated exposure to hazards. (Id. at
532-33.) He believed Shewmake’s statements were only “partially credible in light
5
of the overall evidence” and that his claimed limitations “exceed[ed] that supported
by the objective medical findings[.]” (Id. at 536.)
From September 2010 through September 2011, Shewmake continued to
make monthly visits to PCJ and had several appointments with various specialists.
During a September 2010 visit to PCJ he reported no exacerbations in Crohn’s
symptoms and denied having diarrhea. (Id. at 716-17.) Then in October 2010,
Shewmake saw Dr. Ayub for a Crohn’s flare-up and reported having diarrhea five to
ten times per day. (Id. at 556.) Dr. Ayub wrote a note stating that Shewmake “at
times requires frequent episodes to [the] bathroom” and recommended that he get a
colonoscopy.
(Id. at 550, 557.)
The next day Shewmake again went to the
emergency room at Silver Cross Hospital complaining of abdominal pain. (Id. at
565.) He also reported that he was constipated. (Id. at 567.) X-rays showed large
amounts of retained fecal debris, but without any evidence of bowel obstruction.
(Id. at 565.)
The following week in October 2010, Shewmake visited PCJ and NP Hushaw
noted that Shewmake wanted a “second opinion since he does not want to have
recommended surgery[,]” presumably to address his Crohn’s.
(Id. at 583-84.)
NP Hushaw’s notes contain no mention of diarrhea for that day, or for his following
appointment on November 15, 2010. (See id. at 583-85.) On November 16, 2010,
Shewmake had a colonoscopy and was treated by Dr. Nikhil Bhargava, a
gastroenterologist, on November 29, 2010. (Id. at 619-21.) The colonoscopy showed
active proctitis, or inflammation of the rectum’s lining, and extraintestinal
6
manifestations of IBD.
(Id. at 622.)
Dr. Bhargava noted that Shewmake was
experiencing “approximately 3 to 10 bowel movements per day” and had “three
flares in the last two years[.]” (Id. at 621.) He also reported that Shewmake was
drinking two to three cups of iced tea per day. (Id.) Dr. Bhargava observed that
Shewmake’s abdomen was non-tender and non-distended, and that his bowel
sounds were positive. (Id.)
From December 2010 through April 2011, Shewmake denied having or made
no mention of diarrhea during his visits to PCJ. (Id. at 695, 697, 701, 704, 707.) In
that time period Shewmake was examined further by state consultants and his own
medical providers. In January 2011, Dr. David Mack completed an Illinois Request
for Medical Advice form affirming Dr. Vincent’s September 2010 Physical RFC
Assessment.
(Id. at 623-25.)
According to the form, Shewmake alleged his
condition had worsened since the initial assessment in that his bowel movements
and abdominal cramps became more frequent.
(Id. at 625.)
After listing the
additional records he considered on review, Dr. Mack concluded that Shewmake’s
claims were still only “partially credible” and that “objective medical evidence” did
not support the severity of his statements. (Id.)
In a February 2011 letter, Dr. Bhargava wrote that Shewmake was “still
having three to five bowel movements per day” but denied having weight loss. (Id.
at 673.) A physical examination revealed no acute distress and a non-tender, nondistended abdomen with positive bowel sounds. (Id.) Shewmake’s labs showed his
small bowel follow-through was “unremarkable.” (Id.) Dr. Bhargava noted that
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Shewmake’s diarrhea could be the result of Crohn’s exacerbation, irritable bowel
syndrome (“IBS”), or narcotic-related bowel issues. (Id.)
In March 2011, NP Hushaw completed a Functional Capacity Questionnaire
and a Medical Source Statement (“MSS”) in which she stated that Shewmake
suffers from “recurrent/persistent diarrhea,” abdominal pain, weight loss, and bowel
incontinence. (Id. at 627.) She opined that he could sit for three hours and stand or
walk for three hours in an eight-hour workday, (id. at 633), but that he could only
sit for 30 minutes at a time and stand for 15 minutes at a time in a competitive
work situation, (id. at 628). She stated that he was “[i]ncapable of even low stress
jobs” because of frequent flare-ups and hospitalization and that his pain would
frequently be severe enough to interfere with the attention and concentration
needed to perform simple work tasks. (Id. at 628, 633.) NP Hushaw opined that
Shewmake would need to take eight unscheduled breaks throughout the day
because of pain, fatigue, and diarrhea, and could not work an eight-hour workday.
(Id. at 629.) She further concluded that he would miss more than four days of work
per month because of his impairments. (Id. at 630.)
Later in March 2011, Dr. Bhargava performed another colonoscopy on
Shewmake and noted symptoms of Crohn’s disease and pseudopolyps, but he found
ulcerative colitis “very unlikely.” (Id. at 667.) He noted that Shewmake had three
to four non-bloody bowel movements per day, and that his abdominal pain was
“reasonably well controlled.” (Id. at 672.) He observed that Shewmake’s abdomen
8
was non-tender, non-distended, and produced positive bowel sounds.
(Id.)
Dr. Bhargava suspected Shewmake might have IBS along with IBD. (Id.)
In May 2011 Shewmake complained of diarrhea and abdominal pain during a
visit to PCJ, (id. at 692), but in the months that followed his symptoms appeared to
lessen or become milder. In June 2011, Dr. Bhargava wrote a letter reporting that
Shewmake had three to five non-bloody bowel movements per day. (Id. at 671.)
Dr. Bhargava observed that Shewmake’s abdomen appeared normal and concluded
that his Crohn’s disease had only “mild symptoms.” (Id.) Shewmake denied or
made no mention of having diarrhea in June and July 2011 visits to PCJ. (Id. at
685, 689.) Dr. Nancy Reau, a gastroenterologist in Dr. Bhargava’s group, wrote in a
July 2011 letter that Shewmake’s Crohn’s disease was “quiescent.” (Id. at 758.)
Dr. Wassim Harake, an endocrinologist, reported in July 2011 and August 2011
that diarrhea was “not present” when reviewing Shewmake’s gastrointestinal
system. (Id. at 776, 779.)
Shewmake also denied or made no mention of having diarrhea during August
and September 2011 visits to PCJ and reported both times that he exercises two to
three times per week. (Id. at 679, 683.) In August 2011, Dr. Bhargava wrote that
Shewmake had three to five “well-formed bowel movements.”
(Id. at 756.)
Dr. Bhargava also suspected that Shewmake’s Crohn’s disease was “secondary to
diabetes,” and that his frequent bowel movements were actually due to diabetes
because “endoscopically he appeared mild to moderate.” (Id.)
9
In September 2011, Dr. Shah signed an MSS stating that Shewmake could
only sit and stand or walk for less than two hours a day. (Id. at 766.) He concluded
that Shewmake was capable of tolerating only a low level of work stress because his
“diarrhea causes anxiety and pain,” and that a higher level of stress “would
exacerbate these symptoms.” (Id. at 767.) According to Dr. Shah, Shewmake would
miss work more than three times per month. (Id. at 768.)
B.
Medical Evidence – Mental Health
Shewmake has never sought psychiatric treatment, but records from PCJ
note he has a history of anxiety. (See, e.g., A.R. 432, 465, 471, 717.) During many
visits NP Hushaw indicated Shewmake had decreased concentration or a depressed
mood. (See, e.g., id. at 429, 436, 454.) NP Hushaw also wrote on several occasions
that medications such as Xanax and Ativan provided adequate relief for his chronic
stress and anxiety. (Id. at 449, 678, 683, 686, 689, 701, 704.)
In August 2010, Dr. Erwin Baukus completed a Psychological Mental Status
Examination of Shewmake on behalf of DDS.
(Id. at 544-48.)
During the
examination Shewmake reported, among other symptoms, decreased energy,
difficulty concentrating and thinking, and generalized persistent anxiety. (Id. at
546.) Dr. Baukus noted that Shewmake independently takes care of daily activities
like “toileting, washing, shaving, and personal hygiene needs[,]” and watches his
children when he is not hospitalized. (Id.) He drives and takes care of light chores
at home, but his wife does the grocery shopping. (Id.) Dr. Baukus observed that
Shewmake maintained appropriate social behavior during the examination, but
10
that his mood was mildly depressed.
(Id. at 546-47.)
Dr. Baukus ultimately
diagnosed him with “Mood Disorder Due to Multiple General Medical Conditions.”
(Id. at 548.)
In September 2010, Dr. Kirk Boyenga completed a Psychiatric Review
Technique and a Mental RFC Assessment in which he noted a diagnosis of affective
disorder and generalized anxiety disorder.
(Id. at 518, 520.)
He found that
Shewmake had no significant limitations on understanding and memory and was
moderately limited in his ability to maintain attention and concentration for
extended periods of time.
(Id. at 511.)
He also found that Shewmake was
moderately limited in his ability to complete a normal workday and workweek
without interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods. (Id. at
512.)
In his functional capacity assessment, Dr. Boyenga reported that Shewmake
was free of thought disorder or serious memory problems during the examination
and that he had mild limitations in activities of daily living. (Id. at 512, 525.)
Dr. Boyenga noted that Shewmake could perform simple tasks, and demonstrated
no serious limitation of social skills. (Id. at 512.) He opined that Shewmake could
follow directions despite limitations in adaptation abilities and found no evidence of
decompensation. (Id. at 512, 525.) Dr. Boyenga further concluded that Shewmake’s
statements were “partially credible in light of the overall evidence” and that his
11
claimed restrictions exceeded “that supported by the objective medical findings[.]”
(Id. at 527.)
In January 2011, Dr. Russell Taylor completed an Illinois Request for
Medical Advice form affirming Dr. Boyenga’s September 2010 Psychiatric Review
Technique and Mental RFC Assessment. (Id. at 623-25.) According to the form,
Shewmake alleged his condition had worsened since the initial assessment in that
his bowel movements and abdominal cramps became more frequent. (Id. at 625.)
Dr. Taylor concluded that the “medical evidence obtained at the reconsideration
level supports the findings of the initial decision.”
(Id.)
He also noted that
Shewmake’s claims were only “partially credible” and that “objective medical
evidence” did not support the severity of his statements. (Id.)
In March 2011, NP Hushaw completed a Functional Capacity Questionnaire
and MSS in which she stated that in addition to physical impairments, Shewmake
also suffers from depression and anxiety. (Id. at 628, 633.) She noted that he has
difficulty concentrating and that during a typical workday, he would frequently
experience symptoms severe enough to interfere with the attention and
concentration needed to perform even simple tasks. (Id. at 627-28.)
C.
Shewmake’s Testimony
During the hearing on September 27, 2011, Shewmake described his past
occupation as a construction worker. (A.R. 57.) He testified that he was a union
laborer for approximately 21 years, but eventually had to leave his last job because
of his Crohn’s disease and diabetes.
(Id.)
12
He said that although his previous
employer created a “made-up job” for him that involved watching other employees
to ensure safety during their use of lifts, he was let go because his frequent trips to
the bathroom halted operations and he kept missing days due to his illnesses. (Id.
at 57-58, 71.)
Shewmake also testified about the limiting effects of his Crohn’s disease,
diabetes, and anxiety. He described a good day as having to get up twice in the
middle of the night to go to the bathroom and making six trips to the bathroom
during the day. (Id. at 79.) He said that on a bad day the pain is so intense it
makes him want to vomit, and that he has bad days two to three times a month
lasting about three days each time. (Id. at 79-81.) He takes medication on bad days
which usually takes 24 to 48 hours to relieve his symptoms, after which he said the
symptoms subside but do not completely go away. (Id. at 80.) He reported that the
morning of the hearing he took Asacol and Asacol suppositories, Xanax, Lisinopril,
and other medications.
(Id. at 58-59.)
He added that when he is hospitalized
during flare-ups of Crohn’s symptoms, he is given Prednisone and another
intravenous medication. (Id. 59-60.) During “mild flare-ups,” he takes Norco. (Id.
at 82.)
He testified that his anxiety can worsen his Crohn’s flare-ups, and that flareups also make his diabetes worse because they increase his insulin levels. (Id. at
73-75.) He discussed the possibility of taking Humira with Dr. Bhargava to address
his Crohn’s flare-ups, but was told that he had to get his diabetes “under control”
first before he could try Humira. (Id. at 72-73.) He said that his blood-sugar level
13
fluctuated between 60 and 390 during the previous three months, but that it is
normally between 250 and 300. (Id. at 71-72.) A couple months before the hearing
he began seeing Dr. Harake, who prescribed Januvia for his diabetes. (Id. at 64-65.)
Shewmake said that he also visits Dr. DeGroot for diabetic footcare, and that the
last time he saw her was in September 2010. (Id. at 70.)
He initially testified that his doctors told him to eat a fiber-free diet with no
raw vegetables, raw fruit, or deep-fried, greasy foods. (Id. at 59.) However, upon reexamination by the ALJ, he corrected himself and said that his doctors recommend
a high-fiber diet. (Id. at 85.) He denied ever smoking or using any street drugs, and
testified that “it’s been years” since he last had an alcoholic drink. (Id. at 62.)
He further testified that he has problems sitting because his abdomen swells,
which leads to back pain. (Id. at 77-78, 82.) He said that he positions himself on his
side in a reclining chair with pillows during the day, but that he cannot sit in that
position for too long. (Id. at 78-79.) He explained that he can only stand or walk for
30 minutes before he has to either take medication or sit down to relieve his back
pain. (Id. at 82-83.) He also wears an adult diaper when he is more than a short
distance away from home because of incontinence, and he indicated that lifting too
much or standing up from a crouched position could also cause incontinence. (Id. at
78, 83, 86.)
With respect to daily activities, Shewmake testified that his wife works fulltime outside of the home and that they have two children, ages 12 and 9. (Id. at 60.)
He usually attends their soccer and baseball games because they live just across the
14
street from their school. (Id. at 61.) According to Shewmake his wife “pretty much
does everything” around the house, including chores and yard work. (Id.) Although
he has a driver’s license, he stopped driving in recent years because he believes his
fluctuating blood-sugar levels make driving unsafe. (Id.) He watches television and
does some bird-watching during the day, and his mother visits him at least once a
week. (Id. at 63-64.) He said that five years ago he and his wife used to do a variety
of outdoor activities such as camping, biking, and fishing, but that they can no
longer do those things. (Id. at 76.)
D.
Vocational Expert’s Testimony
Vocational Expert (“VE”) Grace Gianforte answered the ALJ’s questions
regarding the kinds of jobs someone with certain hypothetical limitations could
perform. (A.R. 88-94.) The VE first confirmed that Shewmake’s previous job as a
construction worker is a semi-skilled position which he performed at the very heavy
level of exertion. (Id. at 90.) The ALJ then asked the VE about a hypothetical
individual of Shewmake’s age, education, and work experience who could frequently
balance and climb ramps and stairs, and occasionally climb ladders, ropes or
scaffolds and stoop, kneel, crouch, and crawl. (Id.) This hypothetical individual
would need to avoid concentrated exposure to hazards such as moving machinery or
unprotected heights, and could perform unskilled work tasks that could be learned
by demonstration or in 30 days or less.
(Id.)
The VE testified that such an
individual could work at the light level of exertion as a bench worker, bakery
worker, or inspector/packer. (Id. at 90-91.)
15
The ALJ asked for examples of sedentary positions that would fit the
hypothetical, and the VE’s response included waxer, hand polisher, and hand
painter. (Id. at 91.) The ALJ further limited her hypothetical to unskilled work
tasks that would involve occasional decision-making, occasional changes in the work
setting, and would not be considered as fast-paced or having strict production
quotas. (Id. at 91-92.) The VE responded that these additional limitations would
have no effect on her previous response. (Id. at 92.) The ALJ then asked about an
individual who could sit for no more than two hours of an eight-hour workday, stand
and walk for no more than two hours, and occasionally lift and carry up to 10
pounds, but was unable to stoop, push, pull, kneel, or bend, and would likely miss
work more than three times per month.
(Id.)
The VE testified that such an
individual would be unable to sustain competitive employment even if missed work
were removed as a limitation. (Id. at 92, 94.)
Finally, the ALJ asked if someone capable of a low stress job could perform
the jobs that the VE previously identified, and the VE responded that the individual
could. (Id.) The VE further explained that the customary tolerance for unexcused
or unscheduled absences in a competitive work environment is 1.3 days per month
in the private sector and 1.6 days per month in the public sector. (Id. at 93.) As for
rest or break periods, the VE testified that the customary tolerance is anywhere
from 10 to 20 minutes during the morning and afternoon, and a mid-shift break of
30 minutes for a seven-hour workday or 45 minutes for an eight-hour workday.
(Id.) The VE confirmed that an individual who was likely to exceed those customary
16
tolerances could not sustain competitive employment.
(Id.)
When asked by
Shewmake’s attorney about a hypothetical individual who would be off task 15
percent or more of the day due to lack of concentration, the VE testified that all the
jobs she previously listed would be precluded for that individual. (Id. at 94.)
E.
Post-Hearing Medical Evidence
After the September 2011 hearing before the ALJ, Shewmake visited
Dr. Bhargava who reported that Shewmake was having “anywhere between 5-10
bowel movements per day” with “occasional scant rectal bleeding” and some
abdominal bloating. (A.R. 785.) Dr. Bhargava noted no acute distress and a normal
abdomen upon physical examination. (Id.) He wrote that he suspected Shewmake’s
diarrhea was related to IBS or diabetes because Shewmake was “endoscopically
mild.”
(Id.)
Shewmake also submitted an October 2011 letter from Dr. Shah
stating that he supervises NP Hushaw at PCJ. (Id. at 787.)
F.
The ALJ’s Decision
The ALJ concluded that Shewmake is not disabled under sections 216(i) and
223(d) of the Social Security Act. (A.R. 36.) In so finding, the ALJ applied the
standard five-step sequence, see 20 C.F.R. § 404.1520(a)(4), which requires her to
analyze:
(1) whether the claimant is currently employed; (2) whether the
claimant has a severe impairment; (3) whether the claimant’s
impairment is one that the Commissioner considers conclusively
disabling; (4) if the claimant does not have a conclusively disabling
impairment, whether he can perform his past relevant work; and (5)
whether the claimant is capable of performing any work in the
national economy.
17
Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012).
If at step three of this
framework the ALJ finds that the claimant has a severe impairment that does not
meet or equal one of the listings set forth by the Commissioner, she must “assess
and make a finding about [the claimant’s RFC] based on all the relevant medical
and other evidence.”
20 C.F.R. § 404.1520(e).
The ALJ then uses the RFC to
determine at steps four and five whether the claimant can return to his past work
or to different available work. Id. § 404.1520(f),(g).
Here, the ALJ determined at steps one and two of the analysis that
Shewmake has not engaged in substantial gainful activity since June 1, 2009, and
that his diabetes, Crohn’s disease, Hepatitis C, and depression and anxiety
constitute severe impairments. (A.R. 37.) At step three the ALJ determined that
since the onset date of disability, Shewmake’s impairments or combination of
impairments neither meets nor medically equals any of the listings in 20 C.F.R.
404, Subpart P, Appendix 1. (Id. at 37-38.)
Proceeding to the next stage of the analysis, the ALJ concluded that
Shewmake has the RFC to perform light work, except that he can frequently
balance and climb ramps and stairs, occasionally climb ladders, ropes, or scaffolds
and stoop, kneel, crouch, and crawl, and must avoid concentrated exposure to
hazards such as moving machinery or unprotected heights. (Id. at 39.) The ALJ
also limited him to unskilled work tasks that can be learned by demonstration or in
30 days or less. (Id.) At steps four and five, the ALJ found that Shewmake is
18
unable to return to his previous work as a construction worker, but that he can
perform other jobs that exist in the national economy. (Id. at 44-45.)
Analysis
In his motion for summary judgment, Shewmake argues that the ALJ
committed reversible errors in determining his RFC, weighing the medical evidence,
and assessing his credibility. (R. 18, Pl.’s Mem. at 1.) This court’s role in disability
cases is limited to reviewing whether the ALJ’s decision is supported by substantial
evidence and free of legal error. See Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir.
2004).
Substantial evidence is that which “a reasonable mind might accept as
adequate to support a conclusion.” McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir.
2011) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The substantial
evidence standard requires the ALJ to build a logical bridge between the evidence
and her conclusion, but not necessarily to provide a thorough written evaluation of
every piece of evidence in the record. See Pepper v. Colvin, 712 F.3d 351, 362 (7th
Cir. 2013). In asking whether the ALJ’s decision has adequate support, this court
will not reweigh the evidence or substitute its own judgment for the ALJ’s. Shideler
v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012).
A.
Credibility Analysis
The court first addresses Shewmake’s credibility argument because the need
for remand turns primarily on the deficiencies in the ALJ’s credibility assessment.
Although Shewmake notes in passing that the ALJ used oft-criticized boilerplate
language in her credibility finding, his main contention is that the ALJ failed to
19
support her finding with sufficient evidence.
(See R. 18, Pl.’s Mem. at 14.)
Shewmake has a particularly high hurdle to overcome in challenging the ALJ’s
credibility determination because this court may only overturn an ALJ’s credibility
assessment if it is “patently wrong.” See Skarbek, 390 F.3d at 504-05. This court
will not substitute its judgment regarding the claimant’s credibility for the ALJ’s,
and Shewmake “must do more than point to a different conclusion that the ALJ
could have reached.” Jones v. Astrue, 623 F.3d 1155, 1162 (7th Cir. 2010). Put
simply, this court will not disturb the ALJ’s credibility determination unless it is
“unreasonable or unsupported.” See Getch v. Astrue, 539 F.3d 473, 483 (7th Cir.
2008).
The court finds that the ALJ did not adequately support her credibility
determination because the reasons she gave for her decision, though several, were
each deficient.
First, the ALJ wrote that the post-hearing evidence showed no
complaints about gastrointestinal symptoms, but she ignored Dr. Bhargava’s
September 30, 2011 letter noting that Shewmake complained of having five to ten
bowel movements per day.
(A.R. 42, 785.)
The ALJ made another error in
concluding that it was “not entirely clear from the record” whether Shewmake
“stopped working for medical reasons or other factors.” (Id. at 42.) She cited to a
letter, presumably from Shewmake’s former employer, stating that Shewmake has
not worked since November 2008 “due to his health condition.” (Id. at 332.) But the
ALJ failed to explain how this letter, or any other evidence in the record, led her to
conclude that Shewmake may have stopped working because of factors unrelated to
20
medical reasons.
If anything, the letter supports Shewmake’s claims that his
illnesses prevented him from staying at his previous job.
The ALJ also pointed to the fact that Shewmake went camping and
swimming despite allegations of disability. (Id. at 42.) A claimant’s statements
about his non-work activities can weigh against credibility if those activities are
inconsistent with his claimed limitations. See Berger v. Astrue, 516 F.3d 539, 546
(7th Cir. 2008). However, the ALJ did not explain how camping and swimming are
inconsistent with Shewmake’s claims of recurrent diarrhea.
Perhaps the ALJ
intended to highlight that Shewmake denied being able to go camping at the
hearing, or that he claimed he could only stand and walk for 30 minutes before
having to sit, and yet went on a rugged camping trip anyway well after he applied
for disability. (See A.R. 42, 76, 82-83, 507.) If so, she should clarify on remand or
otherwise explain why she believes his non-work activities are incompatible with
his complaints of disability.2
Next, the ALJ referred to the fact that Shewmake was instructed to engage
in regular exercise. (Id. at 42.) But aside from stating that Shewmake was told to
exercise three to five times a week for 30 minutes, the ALJ provided no explanation
for why this made his complaints less credible. Perhaps the ALJ intended to note
The ALJ should also consider Shewmake’s testimony regarding his alcohol,
tobacco, and drug use, and address how it bears on his credibility. Shewmake
testified at the hearing that he never smoked and that it had been years since the
last time he had a drink. (A.R. 62.) He also said he never used any street drugs.
(Id.) Yet the record shows that Shewmake admitted to smoking, (see, e.g., id. at
442, 738), tobacco use, (see, e.g., id. at 429, 587, 686), and drinking alcohol socially,
(see, e.g., id. at 429, 587, 686), during doctors’ visits in 2010 and 2011. And
according to Dr. Bhargava, Shewmake has used drugs in the past. (Id. at 621.)
2
21
that doing the recommended exercise would be inconsistent with Shewmake’s
testimony that he cannot lift much weight or stand from a crouched position. (See
id. at 78, 83, 86.) Even so, the ALJ did not point to evidence regarding the nature of
Shewmake’s actual exercise habits.
In the absence of further explanation, this
court finds that Shewmake’s prescribed exercise regimen is an unreliable basis on
which to rest a credibility determination. See Shramek, 226 F.3d at 813.
The ALJ’s reliance on Shewmake’s dietary decisions is likewise erroneous,
albeit by a narrower margin. She referred to his “failure to comply with his diabetic
treatment regimen” and noted that on at least a few occasions, Shewmake deviated
from prescribed dietary restrictions. (Id. at 40, 42.) The ALJ did not take the step,
however, of finding that adhering to his prescribed diet would improve Shewmake’s
ability to work. See Shramek v. Apfel, 226 F.3d 809, 813 (7th Cir. 2000) (ALJ erred
in relying on claimant’s failure to quit smoking as evidence of non-compliance and
as a basis to find her incredible because ALJ made no finding that quitting would
restore her ability to work, and no medical evidence directly linked claimant’s
limitations to smoking). The ALJ connected Shewmake’s dietary restrictions to his
diabetes treatment and mentioned that one Crohn’s flare-up occurred after he ate
peanuts and deviled eggs, but she did not cite to medical evidence explaining how
following a certain diet would restore or increase his work capacity. (A.R. 40, 42);
see also Rousey v. Heckler, 771 F.2d 1065, 1070 (7th Cir. 1985) (“None of the medical
evidence linked her chest pain directly to the smoking of cigarettes and it was not
proper for the ALJ to independently construct that link.”).
22
Finally, the ALJ referred to differences in Shewmake’s “complaints to
treating doctors” as compared to “those made to his medical providers,” concluding
that “[o]verall, there is no objective diagnostic support for his symptoms.” (A.R. 42.)
Not only is it unclear what differences in complaints the ALJ was referring to, the
absence of objective medical evidence supporting subjective complaints is only one
factor of many to be considered in the credibility determination. See Scheck v.
Barnhart, 357 F.3d 697, 703 (7th Cir. 2004). Given the deficiencies in the ALJ’s
other reasons for finding Shewmake less credible, in this instance the ALJ’s
statement that Shewmake’s complaints lack objective support is inadequate on its
own to prevent remand.
In some cases, the Seventh Circuit has affirmed the ALJ’s decision despite
the presence of flaws in reasoning when the ALJ’s other reasons are valid, Halsell v.
Astrue, 357 F. Appx. 717, 722 (7th Cir. 2009) (“[n]ot all of the ALJ's reasons must be
valid as long as enough of them are” (emphasis in original)), or when the evidence
supporting the ALJ’s decision is overwhelming, McKinzey v. Astrue, 641 F.3d 884,
893-94 (7th Cir. 2011). Neither of those situations exists here. The cumulative
effect of the errors in the ALJ’s credibility determination leave this court “without
confidence that the ALJ’s decision builds a ‘logical bridge’ between the evidence and
. . . conclusion,” Myles v. Astrue, 582 F.3d 672, 674 (7th Cir. 2009), thus requiring
remand.
23
B.
RFC Assessment
1.
Physical RFC
Although the court need not address in detail Shewmake’s remaining
challenges given that remand is necessary on the basis of the ALJ’s credibility
analysis, the court will address them in the interest of thoroughness. Shewmake
argues that the ALJ failed to account for his diarrhea from Crohn’s in determining
that he is capable of light work. (R. 18, Pl.’s Mem. at 8.) Specifically, Shewmake
takes issue with the ALJ’s interpretation of “mild” and “quiescent” Crohn’s disease
in the medical record, arguing that even in its mild form Crohn’s can still cause
frequent diarrhea and abdominal pain. (R. 27, Pl.’s Reply at 3.) He also argues that
the ALJ’s RFC assessment “did not mention bathroom breaks or off-task time.”
(See R. 18, Pl.’s Mem. at 9-10.)
Contrary to what Shewmake contends, the ALJ did not overlook his
complaints of recurrent diarrhea and abdominal pain, nor did she fail to explain her
conclusion that Shewmake is capable of performing light work. For example, the
ALJ noted that Shewmake reported having diarrhea three to four times a day and
between three and ten bowel movements a day on various occasions in 2010 and
2011. (A.R. 41.) She also acknowledged that he experienced three Crohn’s flare-ups
which required hospitalization. (Id.) But the ALJ ultimately concluded based on
the medical record that Shewmake’s Crohn’s was not severe enough to justify
further RFC limitations.
(See id. at 41.)
She noted that Dr. Bhargava
characterized Shewmake’s Crohn’s disease as “mild” in March and June 2011;
24
Dr. Reau described it as “quiescent” in August 2011; Dr. Harake noted no diarrhea
during an examination that same month; and NP Hushaw recorded no
gastrointestinal complaints from Shewmake during several visits to PCJ. (See id.
at 41, 43.) The ALJ also found support for her conclusion in Dr. Vincent’s report,
confirmed by Dr. Mack, which stated that Shewmake is capable of light work with
certain postural limitations. (Id. 43.)
In asking whether the ALJ’s decision has adequate support, this court will
not substitute its own judgment for the ALJ’s. See Shideler v. Astrue, 688 F.3d 306,
310 (7th Cir. 2012).
Just because Shewmake disagrees with the ALJ’s
interpretation of the words “mild” and “quiescent” in the medical record does not
mean that the ALJ failed to adequately support her decision. Because the ALJ both
confronted contradictory evidence and explained why she rejected it, the court finds
no basis for remand in the ALJ’s conclusions based on the medical record. See
Thomas v. Colvin, 534 Fed. Appx. 546, 550 (7th Cir. 2013).
The court reaches a similar conclusion regarding Shewmake’s argument that
the ALJ’s RFC assessment “did not mention bathroom breaks or off-task time.”
(See R. 18, Pl.’s Mem. at 9-10.) Contrary to what Shewmake alleges, the ALJ did
address Dr. Ayub’s note that Shewmake “at times requires frequent episodes to the
bathroom[.]”
(Id. at 10.)
As discussed further below, the ALJ stated that the
“nature and extent of the treatment record, particularly with regard to the
claimant’s gastrointestinal conditions,” led her to afford less weight to Dr. Ayub’s
statement. (A.R. 43.) Furthermore, Dr. Ayub’s vague note does not explain what
25
“at times” and “frequent episodes” means, and his other notes do not provide
clarification.
Finally,
Shewmake
points
out
that
the
ALJ
failed
to
mention
Dr. Yalamanchili’s August 2010 note that Shewmake’s symptomology included
“inability to work because of his recurrent diarrhea.” (R. 27, Pl.’s Reply at 4; see
A.R. 540.) The ALJ may have disregarded that statement because it was based on
Shewmake’s subjective reports, which the ALJ found to be less than credible; or
perhaps the ALJ was content to rely on Dr. Yalamanchili’s note that Shewmake
complained of having diarrhea three to four times a day. (See id. at 41.) And
although the ALJ did not make this point in her decision, it is the Commissioner
who determines whether a claimant is able to work, not his physicians. See 20
C.F.R. § 404.1527(e)(1); Dixon v. Massanari, 270 F.3d 1171, 1177 (7th Cir. 2001).
This error alone is insufficient to justify reversing the ALJ’s decision, but because
the court is already remanding on the basis of the ALJ’s credibility finding, the ALJ
should explain what weight she gave to Dr. Yalamanchili’s note regarding
Shewmake’s inability to work, and why.
2.
Mental RFC
Shewmake also argues that the ALJ inadequately accommodated his
difficulty concentrating due to mental impairments by limiting him to unskilled
work. (R. 18, Pl.’s Mem. at 10-11.) He cites to O’Connor-Spinner, 627 F.3d at 620,
which rejected the Commissioner’s “broad proposition that an ALJ may account
generally for moderate limitations on concentration, persistence or pace by
26
restricting the hypothetical [posed to the VE] to unskilled work.” In O’ConnorSpinner, the Seventh Circuit explained that when an ALJ does not explicitly
mention “concentration, persistence and pace” in her hypothetical, the hypothetical
will stand if either of two exceptions applies. First, a court will sometimes assume a
VE’s familiarity with the claimant’s limitations “when the record shows that the VE
independently reviewed the medical record or heard testimony directly addressing
those limitations.” O’Connor-Spinner, 627 F.3d at 619. Second, a hypothetical will
also stand if the ALJ’s alternative phrasing specifically excluded tasks that
someone with the claimant’s limitations would be unable to perform. Id.
Regarding the first exception, although the hearing transcript indicates the
VE was present during the entire hearing, (A.R. 54-55, 89), the ALJ did not
expressly ask whether the VE heard or considered Shewmake’s testimony regarding
his mental limitations. The VE only testified to reviewing Shewmake’s prior work
and vocational background with no mention of his medical record. (Id. at 89.) The
ALJ also did not mention Shewmake’s anxiety or depression in questioning the VE.
Furthermore, the court is reluctant to afford latitude where, as here, the ALJ posed
“a series of increasingly restrictive hypotheticals to the VE,” such that the VE’s
attention was likely focused on the hypotheticals and not on the record.
See
O’Connor-Spinner, 627 F.3d at 619 (citing Simila, 573 F.3d at 521; Young v.
Barnhart, 362 F.3d 995, 1003 (7th Cir. 2004)).
under O’Connor-Spinner does not apply.
27
Accordingly, the first exception
Whether the second exception applies is a closer call because it is unclear
whether the ALJ sufficiently excluded tasks that Shewmake could not perform
because of his mental limitations. This is not a case where the ALJ “described all of
[the claimant’s] credible impairments, physical and mental” before linking his
complaints of pain to the restriction of unskilled work. See Simila, 573 F.3d at 521.
But the ALJ did restrict her hypotheticals to tasks involving occasional changes in
work settings, work environments without “strict production quotas” that are not
“fast-paced” or stressful. (A.R. 90-92); see Murphy v. Astrue, No. 11 CV 831, 2011
WL 4036136, at *12 (N.D. Ill. Sept. 12, 2011) (ALJ adequately accounted for
limitations from anxiety and depression where hypothetical was restricted to jobs
without strict quotas that are not fast-paced, are not regarded as very stressful, and
only require occasional interaction with people).
The Seventh Circuit has
acknowledged that “there is uncertainty in the law regarding the formulation of
hypothetical questions accounting for mental limitations.” Kusilek v. Barnhart, 175
Fed. Appx. 68, 71, 2006 WL 925033, *3 (7th Cir. 2006); see also Dawson v. Colvin,
No. 11 CV 6671, 2014 WL 1392974, at *11 (N.D. Ill. Apr. 10, 2014) (noting that
determining whether a hypothetical adequately incorporates mental limitations is
no “simple, routine task”). Because the court is remanding for a further discussion
of the ALJ’s credibility determination, the ALJ should take the opportunity to
explicitly address Shewmake’s concentration, persistence, and pace limitations with
the VE on remand.
28
C.
Medical Opinions
Shewmake next argues that the ALJ improperly discounted the opinions of
NP Hushaw and Drs. Shah and Ayub. (R. 18, Pl.’s Mem. at 12.) Before evaluating
whether the ALJ adequately supported her decision to give those sources less
weight, the court must first determine each provider’s “medical source” category.
See Simila, 573 F.3d at 514.
A “treating source” refers to a claimant’s own
physician, psychologist, or other acceptable medical source who provides or has
provided the claimant with medical treatment or evaluation and who has or had an
ongoing treatment relationship with him. 20 C.F.R. § 404.1502. A nontreating
source is “a physician, psychologist, or other acceptable medical source who has
examined [the claimant] but does not have, or did not have, an ongoing treatment
relationship” with him. Id.
If a physician is deemed a “treating source,” then the regulations require that
the ALJ give his opinions controlling weight, as long as they are supported by
medical findings and consistent with substantial evidence in the record. See 20
C.F.R. § 404.1527(d)(2). However, if the physician is deemed a “nontreating source,”
the ALJ is not required to assign his opinion controlling weight, and instead may
evaluate the opinion in light of other factors. See White v. Barnhart, 415 F.3d 654,
658 (7th Cir. 2005); see also 20 C.F.R. § 404.1527(d)(2)-(6).
Both Drs. Shah and Ayub fall within the definition of nontreating sources.
Although Dr. Shah submitted an MSS and a letter stating that he supervises NP
Hushaw, it is unclear from the record whether he ever examined or treated
29
Shewmake himself during any of Shewmake’s monthly visits to PCJ. (See A.R.
787.) Furthermore, it appears that Shewmake only sought the MSS and letter from
Dr. Shah to obtain support of his claim for disability, which weighs against finding
that Dr. Shah is a treating source. See 20 C.F.R. § 416.902 (“We will not consider
an acceptable medical source to be your treating source if your relationship with the
source is not based on your medical need for treatment or evaluation, but solely on
your need to obtain a report in support of your claim for disability.”)
As for Dr. Ayub, he only saw Shewmake on a few occasions, and nothing in
the record suggests they had an “ongoing” relationship. (See A.R. 396-97, 556.) The
regulations state that an ongoing treatment relationship generally means that a
claimant sees or has seen the source “with a frequency consistent with accepted
medical practice for the type of treatment and/or evaluation required for [the
claimant’s] medical condition(s).” 20 C.F.R. § 404.1502. While seeing a doctor only
a couple of times a year can constitute a treating relationship if the patient “intends
to keep visiting the physician on an ongoing basis,” Lewis v. Comm’r of Soc. Sec., No.
12 CV 241, 2013 WL 4670202, at *4 (N.D. Ind. Aug. 30, 2013) (emphasis in original
and citations omitted), the record does not show Shewmake intended to continue
visiting Dr. Ayub. After a visit in 2009 and two visits in 2010, Shewmake did not
see Dr. Ayub again and instead sought treatment from Dr. Bhargava, another
gastroenterologist, who he visited on at least eight occasions in 2010 and 2011.
(See, e.g., id. at 603, 621, 651, 671-73, 756, 785.)
30
This treatment history is
consistent with finding that Shewmake did not have an ongoing relationship with
Dr. Ayub.
Accordingly, Dr. Shah’s and Dr. Ayub’s opinions were not entitled to
controlling weight, and the ALJ could determine how much weight to give them
based on how well-supported and explained the opinions were, whether they were
consistent with the record, whether Drs. Shah and Ayub were specialists in
Shewmake’s disorders, and any other factors of which the ALJ was aware. See 20
C.F.R. § 404.1527(d)(3)-(6); White, 415 F.3d at 658.
The ALJ properly used these factors to discount Dr. Shah’s and Dr. Ayub’s
opinions. The ALJ concluded that Dr. Shah’s MSS was not supported by the record
and was inconsistent with NP Hushaw’s notes indicating Shewmake’s Crohn’s
symptoms stabilized for long stretches at a time.
(A.R. 43.)
The ALJ further
explained that Dr. Shah’s opinion was contradicted by Drs. Reau and Bhargava,
gastrointestinal specialists, who characterized Shewmake’s Crohn’s disease as mild
and “quiescent.” (Id.) As for Dr. Ayub, the ALJ decided for similar reasons that his
cursory note stating Shewmake “requires frequent episodes to the bathroom” lacked
objective support in the record. (Id.) The ALJ also cited to “the nature and extent
of the treatment record” as part of the reason why she discounted Dr. Ayub’s
opinion.
(Id.)
The record shows that Dr. Ayub saw Shewmake on only a few
occasions, and there is no evidence that Dr. Ayub acquired extensive knowledge of
Shewmake’s impairments. Given the above, this court finds that the ALJ gave
sufficient reasons for rejecting the opinions of Drs. Shah and Ayub.
31
Regarding NP Hushaw, as the ALJ correctly pointed out, a nurse-practitioner
is not an “acceptable treating source.”
(A.R. 43); see 20 C.F.R. § 416.913(d)(1)
(listing nurse-practitioner among occupations that are not “acceptable medical
sources”). Only acceptable medical sources may give medical opinions “that reflect
judgments about the nature and severity of [the claimant’s] impairment(s),”
including symptoms, diagnoses and prognosis, what the individual can still do
despite the impairment(s), and physical and mental restrictions. 20 C.F.R.
§§ 404.1527(a)(2), 416.927(a)(2). An ALJ may still consider a nurse-practitioner’s
opinions, but the weight they will be given will depend on a number of factors,
including the degree to which they are supported by objective evidence. See Pierce
v. Colvin, 739 F.3d 1046, 1051 (7th Cir. 2014).
The ALJ concluded that there was “little support for [NP Hushaw’s]
conclusions in the record” because her own treatment notes were inconsistent with
what she reported in her Functional Capacity Questionnaire and MSS. (Id. at 43.)
Specifically, the ALJ found that NP Hushaw’s notes “describe[d] [Shewmake’s]
disease process as ‘mild’ and more importantly fail[ed] to reflect reports of
significant symptoms or complaints from the claimant.” (Id.)
The record supports the ALJ’s finding. NP Hushaw opined that Shewmake
was “[i]ncapable of even low stress jobs” due to frequent flare-ups and
hospitalization, that he would need to take eight unscheduled breaks to rest
throughout the day, and that he could not work an eight-hour workday. (Id. at 62833.) She further concluded that Shewmake would miss more than four days of work
32
per month due to his impairments. (Id. at 630.) However, the record shows that
Shewmake only had three flare-ups requiring hospitalization over a period of two
years.
(Id. at 621.)
For several months Shewmake denied having or made no
mention of diarrhea during visits to PCJ. (Id. at 679, 683, 685, 689, 695, 697, 701,
704, 707.) It is unclear on what basis NP Hushaw opined that Shewmake would
need as many as eight unscheduled breaks during an average workday. Finally, the
ALJ noted that NP Hushaw’s opinions were inconsistent with evaluations done by
Shewmake’s gastroenterologists. (Id.) Accordingly, the court is satisfied that the
ALJ complied with regulatory guidelines in discounting NP Hushaw’s opinions.
Ultimately remand is still necessary because the ALJ’s flawed credibility
assessment cannot be deemed harmless. An erroneous credibility finding requires
remand unless the claimant’s testimony is incredible on its face or the ALJ explains
that the decision did not depend on the credibility finding. Pierce, 739 F.3d at 1051
(citing Allord v. Barnhart, 455 F.3d 818, 821 (7th Cir. 2006)). Neither of those
conditions applies here, and the court cannot say with certainty that the ALJ would
have reached the same conclusion about Shewmake’s credibility despite her errors.
See McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011).
In reviewing her
credibility determination on remand, the ALJ should also address the gaps
identified by this court in Shewmake’s RFC assessment.
33
Conclusion
For the foregoing reasons, Shewmake’s motion for summary judgment is
granted to the extent that the case is remanded for further proceedings and the
Commissioner’s motion is denied.
ENTER:
____________________________________
Young B. Kim
United States Magistrate Judge
34
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