Gasior v. Astrue

Filing 29

MEMORANDUM Opinion and Order. Signed by the Honorable Maria Valdez on 1/30/2015: Mailed notice (lp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NADINE A. GASIOR,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security, 1
Defendant.

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No. 12 C 7651
Magistrate Judge
Maria Valdez

MEMORANDUM OPINION AND ORDER
This action was brought under 42 U.S.C. § 405(g) to review the final decision
of the Commissioner of Social Security denying Plaintiff Nadine A. Gasior’s claims
for Disability Insurance Benefits and Supplemental Security Income. The parties
have consented to the jurisdiction of the United States Magistrate Judge pursuant
to 28 U.S.C. § 636(c). For the reasons that follow, Gasior’s motion for summary
judgment [Doc. No. 15] is granted in part and denied in part.
BACKGROUND
I.

PROCEDURAL HISTORY
On August 11, 2009, Gasior filed claims for both Disability Insurance

Benefits and Supplemental Security Income, alleging disability since February 1,
2009. The claim was denied initially and upon reconsideration, after which she
timely requested a hearing before an Administrative Law Judge (“ALJ”), which was

Carolyn W. Colvin is substituted for her predecessor, Michael J. Astrue, pursuant to
Federal Rule of Civil Procedure 25(d).

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held on February 11, 2011. Claimant personally appeared and testified at the
hearing and was represented by counsel. Vocational expert Glee Ann Kehr also
testified.
On April 14, 2011, the ALJ denied Gasior’s claims for both Disability
Insurance Benefits and Supplemental Security Income, finding her not disabled
under the Social Security Act. The Social Security Administration Appeals Council
then denied Claimant’s request for review, leaving the ALJ’s decision as the final
decision of the Commissioner and, therefore, reviewable by the District Court under
42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).
II.

FACTUAL BACKGROUND 2
A.

Background

Claimant was born on January 30, 1966 and was forty-five years old at the
time of the ALJ hearing. She alleges disability due to spinal impairments,
depression, chronic pain, and obesity. She has undergone a number of treatments
for her impairments, including physical therapy, epidural injections, medication,
and surgery. She also has received mental health treatment.
Gasior testified that pain limited her ability to perform many physical
activities, and she could only sit for fifteen to twenty minutes at a time, sit for one
and a half hours in a workday, and stand for forty-five minutes in a workday.
Gasior stated that her most comfortable position was propped up on the couch,
leaning on her side, with a pillow behind her back. She also claimed that her pain
and depression caused her to lack concentration and focus. Plaintiff testified that
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The following facts from the parties’ briefs are undisputed unless otherwise noted.

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she experiences several crying spells each week, for a few hours each time. Her
therapist, Dr. Theresa Finn, has opined that she is suicidal, hopeless, helpless,
distracted, and perseverative; experiences flights of ideas; has poorly organized
thoughts; and experiences auditory hallucinations.
B.

Vocational Expert Testimony

The ALJ asked Vocational Expert (“VE”) whether a hypothetical person with
the same age, education, and work experience as Plaintiff, and a residual functional
capacity (“RFC”) limiting her to sedentary work, with the ability to alternate sitting
and standing every fifteen minutes, with additional postural limitations as well as a
limitation on simple, unskilled work with a flexible pace that does not involve
quotas, could perform any types of work. 3 The VE said that available jobs included
order clerk (approximately 8,800 jobs in the statistical area), telephone clerks (4,700
jobs), and account clerks (3,900 jobs). According to the VE, the number of available
jobs was reduced by fifty percent in light of the need for a sit/stand option. The VE
acknowledged that the Dictionary of Occupational Titles does not address the
availability of jobs with the sit/stand option, and her conclusion that the total
number of positions would be reduced by half was based upon her experience. The
ALJ then asked if there would be any jobs available to the hypothetical person if
she needed one-hour naps approximately three times a day, and the VE replied that
all work would be precluded. The VE also stated that all competitive employment

The VE testified that even at the higher exertional level of light work, Plaintiff could not
perform her past relevant work as a teller and secretary.

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would be precluded if she was off task more than fifteen percent of a workday for
any reason.
D.

ALJ Decision

The ALJ found at step one that Gasior had not engaged in substantial gainful
activity since her onset date of February 1, 2009. At step two, the ALJ concluded
that Plaintiff had severe impairments of back problems, depression, pain, and
obesity. The ALJ concluded at step three that the impairments, alone or in
combination, do not meet or medically equal a Listing. The ALJ then determined
that Claimant retained the RFC to perform sedentary work, with additional
limitations of only occasionally climbing ladders, ropes, or scaffolds, or crawling;
alternating between sitting or standing every fifteen minutes for thirty minutes at a
time; 4 and moderate limitations on concentration and pace, specifically that the
work be simple and routine, not involve quotas, and be at a flexible pace. At step
five, based upon the VE's testimony and Claimant’s age, education, work experience
and RFC, the ALJ concluded that Gasior can perform jobs existing in significant
numbers in the national economy, leading to a finding that she is not disabled
under the Social Security Act.
DISCUSSION
I.

ALJ LEGAL STANDARD
Under the Social Security Act, a person is disabled if she has an “inability to

engage in any substantial gainful activity by reason of any medically determinable
Neither party addressed this seemingly paradoxical limitation, but it is not relevant to
this opinion.

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physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 423(d)(1)(a). In order to determine whether a claimant is
disabled, the ALJ considers the following five questions in order: (1) Is the claimant
presently unemployed? (2) Does the claimant have a severe impairment? (3) Does
the impairment meet or medically equal one of a list of specific impairments
enumerated in the regulations? (4) Is the claimant unable to perform her former
occupation? and (5) Is the claimant unable to perform any other work? 20 C.F.R. §
416.920(a)(4).
An affirmative answer at either step 3 or step 5 leads to a finding that the
claimant is disabled. Young v. Sec’y of Health & Human Servs., 957 F.2d 386, 389
(7th Cir. 1992). A negative answer at any step, other than at step 3, precludes a
finding of disability. Id. The claimant bears the burden of proof at steps 1–4. Id.
Once the claimant shows an inability to perform past work, the burden then shifts
to the Commissioner to show the claimant’s ability to engage in other work existing
in significant numbers in the national economy. Id.
II.

JUDICIAL REVIEW
Section 405(g) provides in relevant part that “[t]he findings of the

Commissioner of Social Security as to any fact, if supported by substantial evidence,
shall be conclusive.” 42 U.S.C. § 405(g). Judicial review of the ALJ’s decision is
limited to determining whether the ALJ’s findings are supported by substantial
evidence or based upon legal error. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir.

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2000); Stevenson v. Chater, 105 F.3d 1151, 1153 (7th Cir. 1997). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Skinner v.
Astrue, 478 F.3d 836, 841 (7th Cir. 2007). This Court may not substitute its
judgment for that of the Commissioner by reevaluating facts, reweighing evidence,
resolving conflicts in evidence, or deciding questions of credibility. Skinner, 478 F.3d
at 841; see also Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008) (holding that the
ALJ’s decision must be affirmed even if “’reasonable minds could differ’” as long as
“the decision is adequately supported”) (citation omitted).
The ALJ is not required to address “every piece of evidence or testimony in
the record, [but] the ALJ’s analysis must provide some glimpse into the reasoning
behind her decision to deny benefits.” Zurawski v. Halter, 245 F.3d 881, 889 (7th
Cir. 2001). In cases where the ALJ denies benefits to a claimant, “he must build an
accurate and logical bridge from the evidence to his conclusion.” Clifford, 227 F.3d
at 872. The ALJ must at least minimally articulate the “analysis of the evidence
with enough detail and clarity to permit meaningful appellate review.” Briscoe ex
rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005); Murphy v. Astrue, 496
F.3d 630, 634 (7th Cir. 2007) (“An ALJ has a duty to fully develop the record before
drawing any conclusions . . . and must adequately articulate his analysis so that we
can follow his reasoning . . . .”); see Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir.
2005).

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Where conflicting evidence would allow reasonable minds to differ, the
responsibility for determining whether a claimant is disabled falls upon the
Commissioner, not the court. See Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir.
1990). However, an ALJ may not “select and discuss only that evidence that favors
his ultimate conclusion,” but must instead consider all relevant evidence. Herron v.
Shalala, 19 F.3d 329, 333 (7th Cir. 1994).
III.

ANALYSIS
Gasior argues that the ALJ’s decision was in error because: (1) her credibility

finding was in error and resulted in an RFC that failed to include all of her
limitations; and (2) the VE’s testimony was not based upon reliable data.
A.

Credibility/RFC

Plaintiff argues that the ALJ’s credibility determination was flawed and
improperly discounted her subjective complaints of pain and depression, which she
claims make her unable to sit and stand throughout a work day or to remain on
task. The Commissioner responds that the ALJ properly considered Plaintiff’s
credibility in light of the record and her reported daily activities.
An ALJ=s credibility determination is granted substantial deference by a
reviewing court unless it is Apatently wrong@ and not supported by the record.
Schmidt v. Astrue, 496 F.3d 833, 843 (7th Cir. 2007); Powers v. Apfel, 207 F.3d 431,
435 (7th Cir. 2000); see also Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008)
(holding that in assessing the credibility finding, courts do not review the medical
evidence de novo but “merely examine whether the ALJ’s determination was

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reasoned and supported”). However, an ALJ must give specific reasons for
discrediting a claimant=s testimony, and A[t]hose reasons must be supported by
record evidence and must be >sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the adjudicator gave to the individual=s
statements and the reasons for that weight.=@ Lopez ex rel. Lopez v. Barnhart, 336
F.3d 535, 539-40 (7th Cir. 2003) (quoting Zurawski, 245 F.3d at 887-88); see SSR 967p, 1996 WL 374186, at *4 (S.S.A. 1996).
The lack of objective evidence is not by itself reason to find a claimant’s
testimony to be incredible. See Schmidt v. Barnhart, 395 F.3d 737, 746-47 (7th Cir.
2005). When evaluating a plaintiff’s credibility, the ALJ must also consider A(1) the
claimant=s daily activity; (2) the duration, frequency, and intensity of pain; (3) the
precipitating and aggravating factors; (4) dosage, effectiveness, and side effects of
medication; and (5) functional restrictions.@ See Scheck v. Barnhart, 357 F.3d 697,
703 (7th Cir. 2004); see SSR 96-7p at *3. When the claimant attends an
administrative hearing, the ALJ “may also consider his or her own recorded
observations of the individual as part of the overall evaluation of the credibility of
the individual=s statements.” SSR 96-7p at *5.
While the ALJ=s credibility determination relied in part on the language
sharply criticized by the Seventh Circuit in Bjornson v. Astrue, 671 F.3d 640, 645
(7th Cir. 2012), the decision went beyond the boilerplate by noting that her
allegations of pain and lack of concentration were not supported by the medical
record. Specifically, the ALJ noted that she was released from her doctor’s care post-

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spinal surgery in November 2009; and she admitted in a November 2010 physical
therapy report that her symptoms had decreased by fifty percent, and her lower
extremity soreness was caused by exercise, not pain. In addition, her treating
physician, Dr. Peter Dragisic, reported in September 2009 that Gasior’s capacity for
walking and sitting were only reduced by twenty to fifty percent; and she had no
limitations in her ability to perform activities of daily living and only a moderate
limitation in concentration, persistence, and pace. 5 The ALJ further noted that
Plaintiff’s complaints of disabling pain precluding sitting or standing for more than
very short periods of time was contradicted by other evidence, e.g., her testimony
that she drove herself to the hearing; she could meaningfully contribute throughout
the half-hour hearing without displaying any overt pain behavior; she was able to
function socially; her daily activities, which included preparing meals, doing
laundry, dusting, shopping, and attending church; as well as her ability to travel for
an overnight vacation to Wisconsin and a ten-day cruise in February 2009.
The fact that another adjudicator may have come to a different conclusion
based on the record is not a sufficient basis to overturn the ALJ’s credibility
determination. Gasior has not shown that the ALJ was unreasonable in giving
greater weight to the medical evidence, which failed to support her objective
complaints of pain and disabling depression, than it did to her testimony. The ALJ=s
credibility finding was specific, it was not patently wrong, and it will not be
disturbed by this Court.
Gasior makes no argument that the ALJ erred in assigning no weight to Dr. Dragisic’s
December 26, 2010 conclusory letter stating that in his opinion, Claimant is disabled.
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B.

Vocational Expert’s Opinion

Plaintiff next argues that the ALJ’s determination that jobs were available
for a person with her background and RFC was in error because it relied on
unsupported testimony by the VE. Specifically, Gasior alleges that the ALJ failed to
reconcile conflicts between the VE’s testimony and the Dictionary of Occupational
Titles (“DOT”).
The ALJ asked the VE whether her testimony was consistent with the DOT,
and she responded that it does not address some of the non-exertional limitations or
the sit/stand option. She testified that her conclusion that the sit/stand option
eliminated fifty percent of the available jobs was based upon her experience
analyzing jobs and placing workers since 1993. During questioning by Gasior’s
attorney, the VE further stated that she could not enumerate all instances in which
she had observed those positions. She stated that she could probably identify the
places she had seen those jobs but not the particular dates. The VE did not,
however, identify any places she had observed those positions, nor did she attempt
to explain whether or how her anecdotal observations could be extrapolated to
reliably establish the fifty percent reduction figure.
“It is the Commissioner’s burden at Step 5 establish the existence of a
significant number of jobs that the claimant can perform.” McKinnie v. Barnhart,
368 F.3d 907, 911 (7th Cir. 2004). If a vocational expert’s opinion about job
requirements is not contained in the DOT, “the adjudicator has an affirmative
responsibility to ask about any possible conflict” between the opinion and the DOT.

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Prochaska v. Barnhart, 454 F.3d 731, 735 (7th Cir. 2006) (emphasis in original); see
SSR 00-4p (“If the VE’s . . . evidence appears to conflict with the DOT, the
adjudicator will obtain a reasonable explanation for the apparent conflict.”).
Moreover, the data and reasoning underlying a conflicting opinion must be
“available on demand” in order to properly test the reliability of the expert’s
conclusions. See Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002). A VE’s
general experience alone is not sufficient to support a conclusion that conflicts with
the DOT. See McKinnie, 368 F.3d at 911 (noting that the VE “did not substantiate
her findings with a written report or other documentation to substantiate her
figures”); Smith v. Astrue, No. 09 C 2392, 2010 WL 3526655, at *17 (N.D. Ill. Sept.
1, 2010) (“At a minimum, a vocational expert relying on personal experience,
without any citation of objective reports or documents, must provide some
specificity concerning the facts, figures, or other data that form the basis of his
testimony.”); cf. Overman v. Astrue, 546 F.3d 456, 464 (7th Cir. 2008) (“An ALJ is
free to accept testimony from a VE that conflicts with the DOT when, for example,
the VE’s experience and knowledge in a given situation exceeds that of the DOT’s
authors, . . . or when the VE’s contrary testimony is based on information in ‘other
reliable publications.’”) (citations omitted).
The Court concludes that the VE’s opinion that the sit/stand option would
eliminate only fifty percent of the available jobs in the economy was not supported
by substantial evidence. This was not a harmless error, because there is currently
no competent evidence in the record that any of the jobs would remain available

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with the sit/stand limitation. Therefore, the case must be remanded for the sole
purpose of determining at step 5 whether Gasior could perform a significant
number of jobs in the regional economy based upon the RFC, with its limitations,
determined by the ALJ.
CONCLUSION
For the foregoing reasons, Plaintiff Nadine A. Gasior’s motion for summary
judgment [Doc. No. 15] is granted in part and denied in part. The Court finds that
this matter should be remanded to the Commissioner for further proceedings
consistent with this Order.

SO ORDERED.

ENTERED:

DATE:

___________________________
HON. MARIA VALDEZ
United States Magistrate Judge

January 30, 2015

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