Saletta v. Colvin

Filing 36

MEMORANDUM Opinion and Order. Signed by the Honorable Maria Valdez on 3/10/2015: Mailed notice (lp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GINA L. SALETTA,
Plaintiff,
v.
CAROLYN W. COLVIN,
acting commissioner of Social
Security,
Defendant.

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No. 13 C 2293
Magistrate Judge
Maria Valdez

MEMORANDUM OPINION AND ORDER
Plaintiff Gina Saletta (“Plaintiff”) filed this action pursuant to 42 U.S.C. §
405(g), seeking review of the final decision of the Commissioner of Social Security
(“the Commissioner”), which denied her claim for Social Security Disability
Insurance (“SSDI”) benefits. The parties have consented to the jurisdiction of this
Court pursuant to 28 U.S.C. § 636(c). For the following reasons, the Court denies
the Commissioner’s Motion for Summary Judgment [22], grants in part and denies
in part Plaintiff’s Memorandum in Support of Her Motion to Reverse the Decision of
the Commissioner of Social Security [19], and remands this case to the
Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further
proceedings consistent with this Opinion.

BACKGROUND
I.

PROCEDURAL AND FACTUAL HISTORY 1
Since 2008, Plaintiff has suffered from intense back and leg pain. After

seeing a variety of physicians, she was diagnosed with degenerative disc disease
and spinal stenosis. Unfortunately, she saw little success with prescribed
medications and therapy, and her back problems deteriorated to the point of
interfering with virtually all aspects of her life. Plaintiff thus filed a Title II
application for SSDI benefits, alleging a disability onset date of November 15, 2008.
Her application was denied initially and upon reconsideration. Accordingly,
Plaintiff requested and received a hearing before an Administrative Law Judge
(“ALJ”), who determined that Plaintiff was not disabled at Step Four of the Social
Security Administration’s sequential analysis.
At the hearing, the ALJ found that Plaintiff suffered from one severe
impairment: lumbar stenosis. After determining that Plaintiff did not meet any
listed impairment, the ALJ then calculated Plaintiff’s Residual Functional Capacity
(“RFC”) and found that she could perform sedentary work with the following
exceptions: she must never climb ladders, ropes, or scaffolds and only occasionally
climb ramps and stairs; she should only occasionally balance, stoop, kneel, crouch,
or crawl; she should avoid concentrated exposure to workplace hazards, such as
heights and moving machinery; and she must be allowed to sit for forty-five minutes
before standing for one to two minutes.

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The following facts from the parties’ submissions are undisputed unless otherwise noted.

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The ALJ then consulted with a Vocational Expert (“VE”) to determine if
Plaintiff could perform her past relevant work or any jobs in the national economy.
On the basis of her RFC assessment and the VE’s testimony, the ALJ concluded
that Plaintiff could perform her past relevant work as a switchboard operator.
Accordingly, the ALJ determined that Plaintiff was not disabled under the Social
Security Act.
STANDARD OF REVIEW
I.

ALJ LEGAL STANDARD
Under the Social Security Act, a person is disabled if she is unable “to engage

in any substantial gainful activity by reason of any medically determinable 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
conducts a five-step analysis and considers the following 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

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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
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. 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). Under this standard, 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). Rather, the ALJ must simply “build an
accurate and logical bridge from the evidence to his conclusion,” Clifford, 227 F.3d
at 872, and 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).
In reviewing an ALJ’s decision, a 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.

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Thus, where conflicting evidence would allow reasonable minds to differ, the court
must defer to the decision of the Commissioner. See Herr v. Sullivan, 912 F.2d 178,
181 (7th Cir. 1990).
DISCUSSION
On appeal, Plaintiff argues that the ALJ’s decision is neither supported by
substantial evidence nor based upon proper legal standards, asserting: (1) the ALJ
improperly determined that Plaintiff’s claims of pain and functional limitations
were not credible; (2) the ALJ improperly discredited the opinions of Plaintiff’s
treating physicians; (3) the ALJ calculated Plaintiff’s RFC without relying on
medical evidence; and (4) the ALJ erroneously gave no weight to a letter submitted
by Plaintiff’s friend and former employer. Because the Court finds the ALJ’s
credibility analysis to be dispositive, it will confine its discussion to that issue only.
I.

The ALJ’s Credibility Determination
An ALJ’s credibility determination will not be overturned unless it was

“patently wrong” and “lack[ing] in any explanation or support.” Jones v. Astrue, 623
F.3d 1155, 1162 (7th Cir. 2010). Here, the ALJ discredited Plaintiff’s testimony
because: (1) her claims of pain and functional limitations were undercut by her parttime jobs and daily activities; (2) she stated at the hearing that she was afraid of
getting spinal fusion surgery, but scheduled it shortly afterwards; and (3) her
alleged onset date conflicts with evidence the record. On their face, these reasons
seem legitimate, but they fail upon closer inspection.

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With respect to Plaintiff’s part-time work, the Commissioner rightly notes
that claimant’s ability to perform part-time work during a period of alleged
disability may diminish her credibility. See Berger v. Astrue, 516 F.3d 539, 646 (7th
Cir. 2008). But Plaintiff’s part-time work was all but typical. For example, in her
most recent job as a caretaker for her friend’s newborn children, Plaintiff hardly did
anything more than monitoring and administering medication. For more strenuous
activities, Plaintiff was assisted by her friend’s relative, who would lift and carry
the children and assist with any other activities that might have aggravated
Plaintiff’s back. Moreover, Plaintiff was allowed to lie down, ice her back, and nap
throughout the day to alleviate her pain. Thus, while it is true that she worked as a
caretaker thirty-two hours per week, this hardly cuts against her credibility. To the
contrary, the extent to which Plaintiff’s impairments were accommodated by her
unique part-time job strongly supports her claims of disabling pain and functional
limitations.
The same cannot be said of Plaintiff other part-time job as a physician’s
assistant, but it is nonetheless unclear whether her performance of that job
undermines her credibility. At the hearing, the ALJ solicited testimony regarding
Plaintiff’s work as a caregiver, but did not investigate whether her work as a
physician’s assistant was similarly accommodating. Instead, the ALJ assumed, on
the basis of Plaintiff’s Work History Report, that she spent a good deal of her time
on her feet and doing postural activities, such as kneeling, crouching, and lifting
light weight objects. This reasoning is problematic for a number of reasons.

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First, Plaintiff worked as a physician’s assistant from 2003-2010, which
means she worked that job for five years before the onset of her alleged disability. It
is thus entirely possible that Plaintiff engaged in various postural activities before
2008 but refrained from such activities as her back pain worsened. The Work
History Report does little to clarify this, however, because it is a “check-list report”
and does not provide room to distinguish work performed during different periods,
such as Plaintiff’s work pre- and post-2008. (See R. 213.) To be sure, the Court is not
making a finding on this particular issue, but the specifics of Plaintiff’s work as a
physician’s assistant post-2008 must nonetheless be made clear in order to
determine whether her performance of that job indeed undermines her credibility. 2
The ALJ’s analysis of Plaintiff’s daily activities is similarly troubling. In her
opinion, the ALJ discredited Plaintiff because she testified that she was able to
wash dishes, make the bed, do laundry, attend church, and drive her children
places. On their face, these activities might count against Plaintiff’s credibility, but
a closer look to her testimony paints a different picture. For example, although
Plaintiff testified to being able to drive her children occasionally, she explained that
doing so required her to bring a supportive pillow and ice her back. (R. 55.)
Likewise, Plaintiff clarified that occasionally making her bed, doing dishes, and
The Court also notes that even if Plaintiff was consistently able to perform her duties to
the extent indicated in the Work History Report, the same report makes clear that she
worked only two, seven-hour shifts per week. Thus, while the report perhaps shows that
Plaintiff could, at times, engage in postural movements, it hardly demonstrates that she
could do so on a full-time basis. As such, that aspect of the report is not particularly
probative of Plaintiff’s disability and, by extension, her credibility. See Larson v. Astrue, 615
F.3d 744 (7th Cir. 2010) (“There is a significant difference between being able to work a few
hours a week and having the capacity to work full time.”)
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folding laundry all caused her intense pain. Going to church was no different: she
could get there, but she could not kneel and needed a supportive pillow to sit. In
light of these qualifications, the Court cannot ascetain how this testimony
undermines Plaintiff’s credibility, especially when read in light of her other
statements regarding her need for assistance when showering, her difficulty in
lifting a gallon of milk, and her inability sweep or vacuum in any capacity.
Apparently, from the ALJ’s perspective, Plaintiff would have had to refrain from
any household or religious activity whatsoever in order to be believable. But that is
an unduly high, and legally unsupportable, standard for judging a claimant’s
credibility, and the Court therefore declines to uphold it.
The Court is equally puzzled by the ALJ’s focus on Plaintiff’s fear of spinal
surgery and subsequent scheduling of that surgery. That Plaintiff expressed
reluctance to getting spinal fusion surgery is not particularly reflective of her
credibility, especially considering that her doctors disagreed about whether she
should have the surgery. (See R. 466-68.) It matters little that despite her testimony
at the hearing, she scheduled surgery shortly thereafter because she ultimately did
not have that surgery, which resolves any apparent inconsistency in her position.
But more fundamentally, the Court cannot agree that fearing spinal surgery and
flip-flopping about whether to get such surgery is an inconsistency that justifies
disbelieving a claimant’s allegations of pain. Spinal fusion surgery is a major
procedure with many risks and no guarantee of success. Given that more
conservative treatment (viz., years of medication, therapy, and spinal injections)

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has consistently failed to alleviate Plaintiff’s back pain, it is no surprise that she
eventually scheduled surgery despite her fear of the risks. The ALJ’s reasoning is
therefore deficient in this respect as well.
The last aspect of the ALJ’s credibility finding — the apparent inconsistency
between a 2009 medical record and Plaintiff’s alleged onset date — is belied by the
record: a treatment note from 2008 clearly shows that Plaintiff was diagnosed with
“[degenerative disc disease] – moderate central, lateral disc herniation at L5-S1 and
small central herniation at L4-5.” (R. 339.) Although the record form 2009 indicates
that Plaintiff’s back problems were “controlled” if she “did the right things,” (R.
332), that statement was quoted by a psychologist, not a relevant doctor. Moreover,
the record is replete with diagnoses from 2008 through 2010 indicating Plaintiff
suffered from severe back problems that were unresponsive to treatment. (See, e.g.,
R. 269-302). The ALJ’s credibility determination is therefore unfounded, and this
case must be remanded for further consideration of Plaintiff’s credibility.
Because the above issues are sufficient to warrant remand, the Court
declines to address in detail the remaining errors claimed by Plaintiff. The Court
notes, however, that the issues underlying the ALJ’s credibility determination also
dovetail with the analysis of Plaintiff’s treating physicians. For example, the ALJ
gave no weight to the opinion of Plaintiff’s primary physician, Dr. Boblick, because
his RFC assessment contained restrictions that were inconsistent with Plaintiff’s
performance of her part-time jobs. This is problematic because, as discussed above,
the ALJ misconstrued and failed to investigate the nature of Plaintiff’s jobs. As

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such, the ALJ’s sole reason for dismissing Dr. Boblick’s opinion is lacking. And
given that Dr. Boblick opined Plaintiff was significantly more restricted than the
ALJ founder her to be, it follows that reconsideration of his opinion is vital to the
outcome of this case.
In remanding, the Court is mindful of the Commissioner’s position that
recent treatment notes indicate that “[Plaintiff’s] back condition had deteriorated
only minimally” and that she “achieved a significant improvement of symptoms,
including increasing sitting tolerance.” (Def.’s Br. at 12.) But these selective quotes
do not capture the entire story. The statement that Plaintiff’s condition deteriorated
only minimally must be understood in terms of her entire course of treatment.
Significant evidence demonstrates that Plaintiff has suffered from a severe back
problem since 2008. Thus, if a recent record indicates that her condition
“deteriorated only minimally,” that means she went from bad to worse, not that her
back problems are somehow magically minimal.
Furthermore, although Plaintiff indeed experienced some improvement in
her symptoms after seeing new doctors and trying new treatments in 2011, this was
because she had repeated epidural and anesthetic injections into her spine. (See R.
859-67.) After those shots would wear off, however, she would return to her doctors
in excruciating pain. As it is unclear whether such treatment can (or should) be
administered indefinitely, the Court is unwilling to find that Plaintiff has “improved
significantly.”

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CONCLUSION
For the above reasons, the Court denies the Commissioner’s Motion for
Summary Judgment [22], grants in part and denies in part Plaintiff’s Memorandum
in Support of Her Motion to Reverse the Decision of the Commissioner of Social
Security [19], and remands this case to the Commissioner pursuant to sentence four
of 42 U.S.C. § 405(g) for further proceedings consistent with this Opinion.

SO ORDERED.

ENTERED:

DATE: March 10, 2015

___________________________
HON. MARIA VALDEZ
United States Magistrate Judge

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