Herring v. Astrue
Filing
27
MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 5/20/2014. (ma,)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GENE HERRING,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,1
Defendant.
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No. 12 CV 8447
Magistrate Judge Young B. Kim
May 20, 2014
MEMORANDUM OPINION and ORDER
Gene Herring seeks disability insurance benefits (“DIB”), 42 U.S.C. §§ 416(i),
423, and supplemental security income (“SSI”), id. §§ 1382, 1382c(a)(3)(A), based on
his claim that he is disabled by a combination of avascular necrosis in his hips and
a hearing deficit. After the Appeals Council declined to review an administrative
law judge’s (“ALJ”) decision denying his applications, Herring filed this suit seeking
judicial review. See 42 U.S.C. § 405(g). Before the court are the parties’ crossmotions for summary judgment. For the following reasons, Herring’s motion for
summary judgment is granted and the government’s motion is denied:
Procedural History
In 2008 Herring protectively filed applications for a period of disability and
DIB and for SSI, claiming a disability onset date of October 30, 2007.
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
(Administrative Record (“A.R.”) 157, 165.) After his claims were denied initially
and upon reconsideration, (id. at 73-76), Herring requested and was granted a
hearing before an ALJ. That hearing took place via videoconference on July 27,
2010. (Id. at 42-72.) On September 2, 2010, the assigned ALJ denied Herring’s
applications for DIB and SSI. (Id. at 34.) When the Appeals Council denied review,
(id. at 1-7), the ALJ’s decision became the final decision of the Commissioner, see
Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013). Herring filed the current suit
seeking judicial review of the Commissioner’s final decision. See 42 U.S.C. § 405(g).
According to Herring’s complaint, the Commissioner found him disabled as of
September 2010 based on a separate application for benefits not at issue here. (R.
1, Compl. ¶ 8.) Herring is currently seeking review of the denial of his claim from
his alleged onset date of “October 30, 2007, to the present.” (Id. ¶ 9.) The parties
have consented to this court’s jurisdiction. See 28 U.S.C. § 636(c).
Facts
In March 2004 Herring was diagnosed with an erosive lesion compressing his
brain stem. (A.R. 559.) He underwent brain surgery, after which he experienced
facial nerve weakness, recurrent headaches, and hearing loss in his left ear. (Id. at
562-63.)
In 2007 Herring also began experiencing hip pain resulting from a
degenerative disease called avascular necrosis, which involves the death of cells
because of deficient blood supply. See STEDMAN’S MEDICAL DICTIONARY (27th ed.
2000). Herring claims that the combination of his partial deafness and his hip pain
2
became disabling in October 2007.
At his hearing before the ALJ, Herring
presented both documentary and testimonial evidence in support of his claims.
A.
Medical Evidence
Following his October 2004 brain surgery, the neurologist monitoring
Herring’s recovery recommended that he stay off of work until November 2006.
(A.R. 259, 566.) In May 2007 Herring was evaluated by an ear, nose, and throat
specialist, Dr. Dwight Grady, who observed that Herring had “[p]rofound left
sensorineural hearing loss across all frequencies.” (Id. at 306.) Dr. Grady opined
that Herring’s hearing loss would be permanent and that he could not benefit from
amplification. (Id.) He recommended that Herring “strictly protect his right ear
from noise exposure.” (Id.)
In September 2007 Herring reported to an emergency room complaining of
sharp pain in his right hip that became worse with weight-bearing, lifting, and
bending. (Id. at 309.) Based on his review of an x-ray of Herring’s right hip, the
attending physician suspected avascular necrosis and referred Herring for a followup MRI. (Id. at 310.) That MRI confirmed the doctor’s suspicion, showing bilateral
avascular necrosis of Herring’s femoral heads, more progressive in the right hip,
with associated joint effusion, edema, sclerosis, and subchondral mild collapse. (Id.
at 319.)
Herring’s main doctor in 2008 and 2009 was Dr. Robert Blair, who monitored
Herring’s hip pain and treated him with pain medication. (Id. at 332.) Although
Dr. Blair noted that Herring’s condition might eventually require bilateral hip
3
replacement surgery, he described him in April 2008 as “doing fairly well with his
hips.” (Id. at 333-34.) He noted that Herring showed a full range of motion and no
pain on a Patrick’s exam, a flexion and extension test designed to evaluate hip
pathology.
(Id.)
Although he characterized Herring as being in “minimal
discomfort,” he strongly advised him against work that requires standing, walking,
and lifting, noting that he “really would do better with a more sedentary type
activity.” (Id. at 350.) In the months that followed, Dr. Blair’s notes reflect that
when Herring was taking a pain medication called Naproxen he did well, but he
frequently could not afford to buy the medicine and would end up in the emergency
room with significant pain.
(See, e.g., id. at 332-33, 467.)
At those ER visits
Herring was prescribed pain medications including Percocet, Darvocet, and Vicodin.
(Id. at 474-80, 502-06, 515-20, 524-27.)
Herring reported to more than one ER
doctor that the Naproxen did not fully relieve his pain. (Id. at 536, 544.) Herring
also reported that he experiences intense pain when he overexerts himself. (Id. at
536.)
Even when Herring’s pain was controlled by medication, Dr. Blair expressed
ambivalence about his ability to work. In October 2008 he described Herring as
being “disabled from any sort of significant physical activity,” but noted that “the
possibility of sedentary work might be reasonable in the future but certainly not at
this point.” (Id. at 333.) In December 2008 Dr. Blair characterized Herring as
being “disabled from any significant standing, walking, lifting, or any type of heavy
work.”
(Id. at 332.)
He reiterated that point in a February 2009 letter, but
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recommended that Herring train for a sedentary job. (Id. at 451.) In his most
recent notes, dated June 2009, Dr. Blair noted that Herring “does fairly well as long
as he’s on his medicine” but again opined that he is “disabled for most types of work
and probably anything that he’s trained for.” (Id. at 467-68.)
The medical record also includes two residual functional capacity (“RFC”)
assessments performed by consulting state physicians.
(Id. at 322, 353.)
In
November 2008 medical consultant Dr. Perry White reviewed Herring’s file and
opined that he could sit, stand, or walk for about six hours in an eight-hour day and
frequently lift ten pounds.
(Id. at 323, 331.)
Dr. White noted that Herring’s
allegations are credible and supported by medical records, but opined that he can
perform light work because Herring himself reported “that he is asymptomatic.”
(Id. at 329.) Two months later medical consultant Dr. Melvin Clayton concurred
that Herring could perform light work. (Id. at 354, 360.) Dr. Clayton acknowledged
Dr. Blair’s opinion that Herring could not perform significant physical activity or
standing, but Dr. Clayton discounted those opinions as being reserved for the
Commissioner and contradicting reports that Herring walks without a limp. (Id. at
359.)
Dr. Clayton also described Herring’s allegations as being only “partially
credible,” because in his opinion Herring’s physical examinations demonstrated his
ability to perform light work. (Id. at 360.)
B.
Vocational Evidence
In May 2008 Herring was referred for an evaluation with state vocational
evaluator Skip Dougherty. (A.R. 261-66.) Herring reported to Dougherty that he
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was “a little sore” but said that he was “in pretty good health.”
(Id. at 262.)
Dougherty wrote that it would be appropriate for Herring to attend community
college to train for a job at the sedentary level, but noted that he would need to
acquire computer skills and improve his math skills to succeed. (Id. at 263.) He
noted that in his opinion Herring “could probably perform some jobs in the light
strength range if he could receive an accommodation of alternating between sitting
and standing.” (Id.) Dougherty also wrote that Herring “would probably need to
work in an environment where the usual noise level is rather low” to accommodate
his partial deafness. (Id.) Based on the results of an oral directions test, Dougherty
noted that Herring “would probably be able to correctly learn and perform simple,
one to three step directions and tasks if he is just presented the directions or tasks
orally,” and wrote that he would probably need a visual demonstration and handson practice to learn more complex tasks. (Id. at 266.)
C.
Herring’s Hearing Testimony
At his July 2010 hearing before an ALJ, Herring testified that his primary
disabling condition is the pain he experiences in both hips and his lower back. (A.R.
52.) He testified that his pain medications make him drowsy and “pretty much out
of it” all of the time. (Id. at 52, 58.) He also testified that since his brain surgery he
has had crushing headaches and blurry vision up to three times a week, but he
takes the same pain medications he takes for his hips and back to treat his
headaches. (Id. at 54.) He testified that he is “fighting pain pretty much all day”
and that the pain keeps him from sleeping for more than three or four hours at
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night. (Id. at 58.) Herring testified that because of his intense pain he is unable to
bend or to walk for more than a half mile and can stand or sit for only 40 minutes.
(Id. at 58-59.)
Herring also described his daily activities, noting that he lives with his
girlfriend and he depends on her to drive him distances longer than 10 miles. (Id.
at 46-47.) As far as chores Herring said that he is unable to help with laundry or
take out the trash, but can help put dinner plates on the table and fold towels. (Id.
at 59-60.) Herring testified that he has been trying to take college classes, but it is
difficult because of his pain. (Id. at 61.) He said that he makes it work because he
is able to get up and move around and he often takes breaks because he is unable to
sit for long periods. (Id.) Herring also reported that he struggles to pay attention to
computer screens because of his pain and because of his medication’s side effects.
(Id. at 62.) He takes “maybe 10 credits” at a time and has a 2.75 GPA, but testified
that he was not taking any classes that were “too hard.” (Id. at 67.)
D.
Vocational Expert’s Hearing Testimony
The ALJ also elicited testimony from Vocational Expert (“VE”) Julie Little,
who described the kinds of work that a hypothetical individual with various
limitations could perform.
When asked to assume a person with Herring’s age,
education, and work background who can perform sedentary work that did not
involve exposure to hazards, the VE testified that he could work as an order clerk,
food checker, or charge account clerk, all jobs that exist in significant numbers in
the state and national economies. (A.R. 69.) She testified that the hypothetical
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individual could perform those jobs even if he would have to alternate between
sitting and standing throughout the day, never being in either position for more
than 30 minutes at a time. (Id. at 70.) When the ALJ asked if the ability to
perform those jobs would be impacted by a limitation to avoid extensive oral
communication and noisy environments, she answered that they would not. (Id.)
However, the VE also testified that if all of Herring’s allegations about his pain
were true, he would not be able to engage in any work. (Id.)
E.
The ALJ’s Decision
The ALJ concluded that Herring is not disabled within the meaning of the
Social Security Act. (A.R. 34.) In so finding, the ALJ applied the standard five-step
sequence, requiring him 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.
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, he 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).
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Here, at steps one and two of the analysis the ALJ found that Herring had
not engaged in substantial gainful activity since October 30, 2007, and that he has
severe impairments consisting of degenerative joint disease of the hip and a hearing
deficit. (A.R. 30.) The ALJ concluded at step three that none of these impairments
are of listings-level severity before turning to the question of Herring’s RFC. (Id. at
30-31.) The ALJ determined that Herring has the RFC to perform sedentary work
except that he cannot work around hazards, must be able to alternate between
sitting and standing at 30-minute intervals, and must “avoid extensive oral
communication.” (Id. at 31.) The ALJ wrote that he found Herring’s testimony
“only partially credible” and said that “the treating and examining opinions agree
that the claimant is capable of performing sedentary work.” (Id. at 31-32.) At step
four the ALJ concluded that Herring’s RFC precludes him from performing his past
work, but at step five he determined that Herring could work as an order clerk, food
checker, or charge account clerk. (Id. at 32-33.) Accordingly, the ALJ concluded
that Herring is not disabled and denied his applications. (Id. at 34.)
Analysis
This court reviews the ALJ’s decision only to ensure that it is free of legal
error and supported by substantial evidence. Nelms v. Astrue, 553 F.3d 1093, 1097
(7th Cir. 2009). Substantial evidence is that which “a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (citation and quotation omitted). Although this court will neither reweigh
the evidence nor substitute its own judgment for that of the ALJ, it will reverse
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where the ALJ fails to develop the required “logical bridge” between the evidence
and his conclusions. See Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009).
In challenging the ALJ’s decision Herring argued in his opening brief that the
ALJ made reversible errors in assessing his credibility, crafting his RFC, and failing
to rule on his request to amend his alleged disability onset date to June 2004. But
Herring withdrew the third argument in his reply brief, conceding that “the ALJ
made no error with respect to this issue,” because “more than four years elapsed
between the 2004 denial and the ALJ’s 2010 decision.”
(R. 23, Reply at 6.)
Herring’s choice to withdraw this argument leaves open only the debates
surrounding the ALJ’s credibility and RFC determinations.
A.
The Credibility Determination
Herring argues that the ALJ’s finding that he is “only partially credible”
should be reversed because, according to him, the ALJ improperly relied on
boilerplate language and neglected to evaluate his pain allegations in compliance
with the factors set forth in agency regulations. As Herring points out, the ALJ’s
credibility finding here is “sparse,” resting in part on the following boilerplate
language: “the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible to the extent they are
inconsistent with the above residual functional capacity assessment.” (A.R. 31.) As
the Seventh Circuit has repeatedly pointed out, this “hackneyed” language not only
is unhelpful in providing the reviewing court any insight into the reasons driving
the ALJ’s decision to discredit a claimant, but gets things backwards by suggesting
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that the claimant’s credibility was accounted for only after the RFC was
determined.
Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012); Bjornson v.
Astrue, 671 F.3d 640, 644-45 (7th Cir. 2012). But as unhelpful as this language
might be, its use only amounts to reversible error in a situation where the ALJ fails
to provide any additional, supported reasons to back up the credibility finding. See
Schomas, 732 F.3d at 708; Shideler v. Astrue, 688 F.3d 306, 311-12 (7th Cir. 2012).
The ALJ’s decision in this case presents that situation.
The only explicit reason the ALJ provided—beyond the useless boilerplate—
to explain his decision to discount Herring’s testimony is that “his subjective
complaints of the inability to perform any substantial activity are belied by his
other actions and activities.” (A.R. 31.) The only “action and activity” the ALJ
identifies is Herring’s ability to “attend educational classes and maintain a GPA of
2.75.” (Id.) Although the ALJ’s credibility determination is entitled to substantial
deference, where, as here, it “rests on objective factors or fundamental
implausibilities rather than subjective considerations,” the court has “greater
freedom” to review it. See Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004)
(internal quotation omitted). Essentially, as far as this court can tell, the ALJ
decided that Herring was exaggerating his pain allegations based entirely on the
objective fact that he attended community college classes and maintained a 2.75
GPA.
But in reaching that conclusion, the ALJ failed to account for Herring’s
testimony detailing the ways in which his pain and concentration limit his ability to
function in class. For example, Herring made clear that it is only possible for him to
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take classes because he is allowed to get up, move around, and take breaks
whenever he needs to. He said that he has maintained a 2.75 GPA by taking only
10 credit hours and enrolling in classes that are not too hard. The ALJ’s decision
provides no insight into whether he considered those qualifications in how Herring
dealt with his courses before concluding that his GPA is inconsistent with disabling
pain. Instead, the ALJ’s solitary reason for discrediting Herring improperly equates
Herring’s ability to get through community college courses on a part-time basis with
the ability to engage in full-time work. The Seventh Circuit has described that kind
of reasoning as a “deplorable” hallmark of disability determinations, see Bjornson,
671 F.3d at 647, noting that an ALJ should not discredit a claimant who performs
part-time work without first asking “the critical questions” about how the claimant
performs that work, the hours he keeps, and his absentee rates, see Jelinek v.
Astrue, 662 F.3d 805, 812 (7th Cir. 2011). In other words, a claimant’s “willingness
and ability to stay engaged in commendable but limited endeavors part-time or at
[his] own pace” should not be used to discredit him unless the ALJ explains why
those activities are inconsistent with his testimony. See Jelinek, 662 F.3d at 81213. Any such explanation is absent here.
Also absent from the ALJ’s credibility analysis is any discussion of the factors
that the regulations require an ALJ to grapple with in assessing the credibility of a
claimant’s pain allegations.
See 20 C.F.R. § 404.1529(c); SSR 96-7p, 1996 WL
374186, at *3 (1996); Brindisi v. Barnhart, 315 F.3d 783, 787 (7th Cir. 2003). Those
factors include the claimant’s daily activities; the timing and duration of his pain;
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the type, dose, and effectiveness of the claimant’s medications; and the attendant
side effects from those medications. SSR 96-7p, 1996 WL 374186, at *3. Herring
testified that his pain medication makes him feel drowsy, tired, and “out of it” all of
the time. (A.R. 52, 58.) He testified that he has pain all of the time, and crushing
headaches three times a week.
(Id. at 54.)
His medications are only partially
helpful in controlling his pain. (Id. at 58.) Herring said that his ability to perform
chores, drive, and use the computer are all limited by his pain and concentration
problems. (Id. at 46, 59-60, 62.) The ALJ’s decision ignores this evidence, leaving
this court with no sense of how or whether the ALJ analyzed the required factors.2
The ALJ included in his RFC analysis a paragraph listing some of the medical
evidence pertaining to Herring’s hip pain, but he made no attempt to link that list
to his credibility analysis or to explain whether or how he perceived it to conflict
with Herring’s complaints. (A.R. 32.) Without any analysis of Herring’s testimony
describing his daily activities and medication issues, the ALJ’s credibility finding
lacks the specific reasons necessary “to make clear to the individual and any
subsequent reviewers the weight the adjudicator gave to the individual’s statements
and the reasons for that weight.”
See SSR 96-7p, 1996 WL 374186, at *4.
Accordingly, the decision lacks “a logical bridge” between the evidence and the
ALJ’s conclusion that Herring’s testimony is only partially credible. See Shauger,
675 F.3d at 697-98; see also Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001)
Although the ALJ wrote at the beginning of the RFC assessment, in another
example of what appears to be boilerplate language, that he considered the evidence
“based on the requirements of . . . 96-7p,” at no point did he describe those factors or
explicitly discuss them in the analysis portion of his RFC assessment. (A.R. 31.)
2
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(remanding where ALJ’s decision offered “no clue as to whether she examined the
full range of medical evidence as it relates to his claim” (emphasis in original)).
The lack of a sufficient credibility analysis does not mean that Herring
should be found disabled.
But the Seventh Circuit has made clear that an
erroneous credibility determination mandates a 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 v. Colvin, 739 F.3d 1046, 1051 (7th Cir.
2014); see also Punzio v. Astrue, 630 F.3d 704, 709 (7th Cir. 2011) (noting that an
inadequate credibility determination is “reason enough” to reverse an ALJ’s
decision).
Here, the VE explicitly testified that if Herring’s descriptions of the
limiting impact of his pain were believed, he would not be able to work at all. (A.R.
70.) Accordingly, the credibility determination is critical here and the case must be
remanded for a new explanation of the ALJ’s credibility findings.
B.
The RFC Determination
Herring also challenges the ALJ’s RFC determination, first arguing that it
stems from what he characterizes as the ALJ’s erroneous reading of the medical
opinions and a failure to account for all of his limitations. Specifically, Herring
takes issue with the ALJ’s decision to give significant weight to what he described
as the treating and examining doctors’ agreement “that the claimant is capable of
performing sedentary work, and that he could work at that level even with a
sit/stand option.” (A.R. 32.) In addition to citing the medical opinions, the ALJ
gave significant weight to Dougherty’s vocational opinion, which he characterized as
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saying that Herring “could perform sedentary work and some light work in a quiet
environment.” (Id.) Herring urges reversal because, he argues, the opinions the
ALJ relied on indicate that he “is more limited than the ALJ found.” (R. 20, Pl.’s
Br. at 8-9.)
Although in some ways Herring’s argument seems to invite the kind of hairsplitting exercise that the Seventh Circuit has warned against, see Rice v. Barnhart,
384 F.3d 363, 369 (7th Cir. 2004) (noting that the court’s role is not to nit-pick the
ALJ’s decision), because the ALJ provided no narrative description of the treating
and examining opinions nor explained how they support the RFC assessment, the
court is once again left with a collapsed logical bridge. It is true that both of the
consulting physicians determined that Herring is capable of sedentary or even light
work, but as Herring points out, his treating physician, Dr. Blair, seemed less
convinced. Dr. Blair weighed in numerous times with opinions about Herring’s
work-readiness. Although in April 2008 he suggested that Herring might “do better
with a more sedentary type activity” than a job that requires standing, walking, or
lifting, by October 2008 he wrote that sedentary work “might be reasonable in the
future but certainly not at this point.” (A.R. 333.) Two months later Dr. Blair
characterized Herring as “disabled from any significant standing, walking, lifting,
or any type of heavy work.” (Id. at 332.) In February 2009 he suggested that
Herring train for a sedentary job, but in June of that year he wrote that Herring is
“disabled for most types of work and probably anything that he’s trained for.” (Id.
at 451, 468.) Dr. Blair’s notes all seem to indicate that he thought Herring might be
15
able to engage in some limited sliver of work, but never solidly endorsed him to be
ready for sedentary work. So when the ALJ writes that Dr. Blair “agrees” that
Herring is capable of sedentary work without providing any further explanation, it
is unclear how he resolved the ambiguity in Dr. Blair’s opinions or balanced them
against the consulting physician’s opinions.
In other words, because the ALJ’s
explanation here is so bare-bones, the court is unable to tell whether the ALJ
ignored the aspects of Dr. Blair’s opinions that detract from his conclusion or
considered the ambiguity and interpreted Dr. Blair’s notes as endorsing Herring for
sedentary work all along. On remand, the ALJ should clarify his reasons for finding
Dr. Blair’s notes to be in line with his conclusions regarding Herring’s RFC.
Herring also argues that even though the ALJ wrote that he gave significant
weight to Dougherty’s opinion regarding what he described as Herring’s “need to
work in an environment where the usual noise level is rather low,” (A.R. 263), the
RFC restricting his exposure to “extensive oral communication” fails to account for
that limitation.
Although Herring acknowledges that the VE testified that a
limitation to “no noisy environments” would allow the jobs she highlighted, Herring
now argues that “no noisy environments” is not the same as a “low-noise
environment.” (R. 20, Pl.’s Br. at 11.) This argument pushes too far into the realm
of nit-picking. Although it is true that “no noisy environments” would leave on the
table work places of moderate—rather than low—noise levels, Herring cites no
evidence that he is unable to tolerate moderate noise, especially in a situation
where he is not required to engage in extensive oral activity. Although there is
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evidence that he was advised to protect his right ear from noise exposure, (A.R.
306), there is no evidence that he has since avoided situations involving just
moderate noise.
Even Dougherty’s opinion is qualified to stating that Herring
“probably” needs to work where the “usual” noise level is low. In short, the noise
restrictions the ALJ put in place are sufficiently supported by the evidence
surrounding Herring’s hearing deficit.
Herring makes a better point, however, in arguing that the ALJ failed to
account for what Dougherty described as his limitations in learning new tasks.
Dougherty wrote that the results of an oral directions test that he administered to
Herring showed that he can learn “simple, one to three step directions and tasks if
he is just presented the directions or tasks orally,” but that he “would probably
require a visual demonstration as well as oral directions, possibly along with some
hands-on practice in order to learn more complex directions or tasks successfully.”
(A.R. 266.) The ALJ wrote that he gave “significant weight” to Dougherty’s opinion,
but never acknowledged or accounted for the limitations Dougherty assessed with
respect to Herring’s ability to learn new tasks. On remand, the ALJ should either
account for the limitations Dougherty cited in his questions to the VE to ensure that
the jobs he describes are consistent with this limitation, see Young v. Barnhart, 362
F.3d 995, 1003 (7th Cir. 2004), or explain why he does not agree with that aspect of
Dougherty’s opinion.
Herring also argues that the ALJ failed to explain how an option to alternate
between sitting and standing at 30-minute intervals adequately accommodates his
17
pain-related limitations. Again, his reasoning turns on a level of hair-splitting that
is beyond the reviewing function of this court. See Rice, 384 F.3d at 369. He argues
that the 30-minute sit/stand option is unsupported by Dougherty’s opinion because
although he wrote that Herring “could probably perform some jobs in the light
strength range if he could receive an accommodation of alternating between sitting
and standing,” Dougherty did not say he could perform sedentary work with that
limitation. (A.R. 263.) But Dougherty opined that Herring “will need to find work
that is in the DOT’s sedentary strength range.” (Id.) The ALJ was entitled to infer
from this that Dougherty believed Herring capable of sedentary work and that he
only needed a sit/stand option in situations involving light work.
The ALJ’s
decision to include the sit/stand option with an RFC for work at the sedentary level
thus worked in Herring’s favor compared to Dougherty’s opinion. And Herring’s
argument that the 30-minute interval is inconsistent with his testimony is similarly
unfounded. Herring testified that he can sit for 40 minutes at a time and stand for
40-45 minutes at a time. (Id. at 59.) He now argues that this testimony does not
support a finding that he could alternate continuously between sitting and standing
at 30-minute intervals for an eight-hour day. (R. 20, Pl.’s Br. at 12.) Essentially,
Herring asks this court to draw a different inference from his testimony than the
one the ALJ drew. But that is not this court’s role. See Terry, 580 F.3d at 475.
Because a reasonable mind could find that the evidence the ALJ cites adequately
supports the inclusion of a sit/stand option, the court finds no error in his inclusion
of that limitation in Herring’s RFC. See Richardson, 402 U.S. at 401.
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Finally, Herring argues that the ALJ’s RFC analysis improperly failed to
account for the limitations stemming from what he describes as his frequent, severe
headaches. He rightly points out that the ALJ failed to mention his headaches
anywhere in the RFC analysis, even though he testified that he experiences
headaches that feel “like my head is being crushed” and related blurry vision up to
three times a week. (A.R. 54.) The ALJ may have disregarded that limitation
because it is based largely on Herring’s own testimony, which the ALJ found to be
only partially credible.
But because this court finds that the credibility
determination must be more fully explained on remand, the ALJ should reconsider
whether to give any weight to his headache testimony, and if so, how much. The
ALJ should keep in mind the substantial medical evidence suggesting that Herring
reported episodic headaches following his 2004 brain surgery. (Id. at 554.) In short,
on remand the ALJ should explain whether and how Herring’s described headaches
and blurred vision impact his RFC. See Indoranto, 374 F.3d at 474 (remanding
where “[n]oticeably absent from the ALJ’s order is a discussion of how [the
claimant’s] headaches and blurred vision affected her ability to work”).
19
Conclusion
For the foregoing reasons, Herring’s motion for summary judgment is
granted, the Commissioner’s is denied, and the case is remanded for further
proceedings consistent with this opinion.
ENTER:
____________________________________
Young B. Kim
United States Magistrate Judge
20
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