Underwood v. Colvin

Filing 21

MEMORANDUM Opinion and Order; Plaintiff's motion for summary judgment is granted, the government's motion is denied, and this case is remanded for further consideration. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 12/20/2016: (yxp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Christine Underwood
Plaintiff,
v.
Carolyn W. Colvin, Acting
Commissioner of Social Security,
Defendant.

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No. 15 CV 50249
Magistrate Judge Iain D. Johnston

MEMORANDUM OPINION AND ORDER
Plaintiff Christine Underwood brings this action under 42 U.S.C. §405(g), challenging
the denial of social security disability benefits for the discrete period from March 7, 2012 (her
alleged onset date) until August 1, 2013 (the date she was found disabled by the administrative
law judge). This appeal only concerns the relatively narrow issue of whether she should receive
benefits for this 17-month period.
Because the legal issues as presented in the briefs are relatively confined, the Court will
only provide a brief overview of the medical and procedural history. On May 17, 2012, plaintiff
filed her disability application, alleging mental and physical impairments. These impairments
seemed to emerge after a car accident in 2007 and after a series of strokes (or mini-strokes)
beginning in 2010. She suffers from hip pain and right-sided weakness causing difficulties in
standing or walking and also from anxiety, depression, memory and concentration difficulties, as
well as PTSD from the fact that a 17-year girl was killed in the car accident. These problems
eventually caused her to stop working as a supervisor of a three-person cleaning crew at a
medical facility.

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A hearing was held before the administrative law judge (ALJ) on December 2, 2013.
Plaintiff, then 54 years old, testified about the above impairments. Two medical experts also
testified. Dr. Michael Cremerius, a psychologist, testified about plaintiff’s psychological and
cognitive problems and found that she could work, but should be limited to simple repetitive
tasks with only occasional contact with coworkers, supervisors, and the public. Dr. Hugh Savage
testified that plaintiff’s physical residual functional capacity (“RFC”) would allow her to do
“reduced light” work, subject to certain conditions about siting, standing, and walking. A
vocational expert, Edward Pagella, also testified.
On May 29, 2014, the ALJ found, as noted above, that plaintiff was disabled as of August
1, 2013 but not for the 17-month period before then. 1 This two-part finding was affected, in part,
by the way plaintiff’s age category changed under the specific Medical-Vocational Rules at
issue. The ALJ found that, during this 17-month period, plaintiff had the RFC to perform light
work, subject to a number of exceptions including specific hourly limitations (6 hours sitting and
6 hours standing or walking, consisting of 2 hours standing and 4 hours walking). R. 15.
In this appeal, plaintiff raises two arguments focused only on the 17-month period. 2
Plaintiff’s first argument is that the ALJ never explained why he found plaintiff’s credibility was
lacking and improperly relied on a boilerplate sentence. An ALJ’s credibility determination
should be reversed only if it is patently wrong. Minnick v. Colvin, 775 F.3d 929, 937 (7th Cir.
2015). However, an ALJ’s decision may be reversed if the ALJ “fail[s] to adequately explain his
or her credibility finding by discussing specific reasons supported by the record.” Id.

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The ALJ found that plaintiff suffered the following severe impairments: “a cognitive disorder;
depression; anxiety; complex partial seizure disorder; asthma; gastroesophageal reflux disease; obesity;
hypertension; headaches; a cerebrovascular accident; and transient ischemic attacks.” R. 14.
2
Neither side raises any issues about the finding of disability beginning on August 1, 2013, and this issue
therefore should not be re-assessed or changed on remand.

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At the start of the RFC analysis, the ALJ stated the following: “the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are not entirely
credible for the reasons explained in the decision.” R. 16. There is no dispute that this statement
is boilerplate. At issue is whether the “reasons” alluded to in this sentence were sufficiently
“explained” in the ensuing discussion. In its response brief, the Government discusses some of
the evidence later mentioned by the ALJ, such as several “normal” findings during an office
visit, and argues that this evidence indirectly reveals the ALJ’s broader credibility rationales. In
making this argument, the Government concedes that, aside from the one sentence quoted above,
the ALJ nowhere in the opinion formally or explicitly analyzed plaintiff’s credibility. Therefore,
Government is arguing that the ALJ’s credibility reasons are implicit in the opinion, which is
sufficient.
This Court is not persuaded by this argument. As one simple but important test of this
argument, the Court notes that, after reading the entire opinion, it is not confident that it knows
what the ALJ’s credibility rationales were or how the ALJ reached them. The ALJ’s RFC
discussion is largely a narrative summary of medical visits with little formal analysis. Although
the Court could speculate based on a few passing phrases and cryptic references, the Court would
ultimately be guessing at the precise rationales. Accordingly, the ALJ’s opinion fails to comply
with the basic precept in Social Security law that an ALJ must build a logical bridge from the
evidence to the conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008) (even when
adequate record evidence exists to support the Commissioner’s decision, the decision will not be
affirmed if the Commissioner does not build such a logical bridge). This principle applies also to
the specific area of credibility determinations. See Craft v. Astrue, 539 F.3d 668, 678 (7th Cir.
2008) (a credibility finding “must be specific enough to enable the claimant and a reviewing

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body to understand the reasoning”); Bjornson v. Astrue, 671 F.3d 640, 649 (7th Cir. 2012) (“the
[ALJ’s] opinion failed to build a bridge between the medical evidence (along with Bjornson’s
testimony, which seems to have been fully consistent with that evidence) and the conclusion that
she is able to work full time in a sedentary occupation provided that she can alternate sitting and
standing”).
Moreover, the ALJ’s credibility analysis is opaque in another sense, one not addressed by
the Government. The ALJ found that plaintiff’s testimony was not “entirely credible.” The
qualification “entirely” suggests that some of testimony was credible, which naturally leads to
the question of which part was credible and which part was not credible. See Parker v. Astrue,
597 F.3d 920, 922 (7th Cir. 2010 (“The statement by a trier of fact that a witness’s testimony is
‘not entirely credible’ yields no clue to what weight the trier of fact gave the testimony.”). The
opinion does not answer this question either.
The main problem with the Government’s attempt to explain why the ALJ’s credibility
decision was justified is that it violates the Chenery doctrine by relying on after-the-fact
justifications not explicitly relied on by the ALJ. Parker, 597 F.3d at (“the Chenery doctrine []
forbids an agency’s lawyers to defend the agency’s decision on grounds that the agency itself
had not embraced”). The Government’s brief attempts to fill in, or bolster, the ALJ’s missing
analysis. Consider the issue of daily activities. The Government argues that one of the ALJ’s
reasons for discounting plaintiff’s credibility was that she was “able to perform activities of daily
living.” Dkt. #19 at 5. The Government then describes two separate “daily activity” reports
completed by plaintiff, one in August 2012 (Ex. 4E) and the other in February 2013 (Ex. 7E). 3
Based on these reports, the Government then lists the specific activities that plaintiff did, such as

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In its brief, the Government indicates that the latter document was completed in November 2012, but
plaintiff’s signature is dated February 19, 2013. R. 259. The specific date is not material to this analysis.

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taking care of her grandson on occasion or watching her daughter’s softball games. But the
problem with this line of argument is that the ALJ never discussed, or even referred to, these
documents. In other words, the ALJ’s opinion did not do what the Government did in its brief—
namely, delve into the specific details from multiple pieces of evidence to justify a broader legal
assertion. The fact that the Government sought to add this additional evidence shows that the
Government realizes the ALJ’s opinion lacks it.
To cite another example, the Government also notes that the ALJ referred to certain
normal findings from doctor visits. However, this argument obscures the fact that the ALJ mostly
just summarized this evidence, along with other evidence, and did not consistently analyze it,
leaving it unclear when and why particular pieces of evidence supported the larger assertions
being advanced. The Government attempts to fill this void, as illustrated by the following
sentence: “The ALJ considered medical records from May 2012 showing that Underwood had a
normal muscle tone and strength, finger-to-nose touching, as well as normal light touch,
pinprick, and sensation testing, which is contrary to Underwood’s testimony that she currently
cannot stand for more than 20 minutes, walk half a block, and cannot go anywhere after she
grocery shops.” Dkt. #19 at 4 (emphasis added). The italicized language was not in the ALJ’s
opinion but was added by the Government. Here again, the Government is attempting to fix the
ALJ’s opinion, in this instance by making the analysis explicit where it was only latent. These
assertions, however, violate Chenery.
More broadly, it is not just the ALJ’s credibility rationale that is fuzzy to this Court, but
also the overarching reasons why the ALJ found plaintiff was disabled after August 1, 2013 but
not before then. The ALJ only briefly discussed this issue toward the end of the opinion (see R.
18), and apparently determined that plaintiff’s condition worsened sometime in 2013. But this

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explanation is terse and not explained with any detail. For all the above reasons, the Court finds
that the ALJ’s credible rationales remain obscure. On remand, the ALJ should make an explicit
credibility analysis following the new Social Security Ruling 16-3p, 2016 WL 1119029
(effective March 28, 2016).
Having found that a remand is justified based on this first argument, the Court will
address the second argument more briefly, finding it also supports a remand. The second
argument focuses on the Step Five finding that there were sufficient jobs in the national economy
for someone with plaintiff’s RFC. Although plaintiff’s argument has several sub-parts, it can be
boiled down to the claim that there were too many ambiguities in hearing testimony.
This Court agrees. After reading the relevant portion of the transcript several times, the
Court still has difficulty in following the arguments and understanding precisely what the
medical expert, the VE, and the ALJ concluded. Perhaps the best way to convey this point is to
quote from the exchange, which is reminiscent of exchanges between Basil Fawlty and Manuel.
See www.imdb.com/character/ch0023125/quotes. The following portion of the transcript
focuses on plaintiff’s hourly limitations for sitting, standing, and walking, as well as whether she
would need to intermittently walk around, and begins with the ALJ asking questions of Dr.
Savage, followed by plaintiff’s counsel asking questions, and ends with several questions from
the vocational expert: 4
Q
A

Yes. I think that she would be limited to lifting frequently up to 10 pounds
and occasionally 20 pounds; carry with the same limitations; sitting, six out
of eight hours; stand, walk six out of eight hours, but two of those – two
hours related to standing, and the remainder to a slow walk. So that would
be how I would break down the stand/walk. []

ALJ:
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And could you describe [the] appropriate RFC, in your opinion?

Counsel, any questions for the medical expert?

Some portions of the exchange dealing with other limitations not relevant here have been omitted.

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ATTY: Yeah. Thank you. []
Q

I’d just like to go back to the stand/walk limitation. You said two hours of
standing. Is that standing still, like, at a workstation?

A

Or it could be a very – essentially, standing still, as I conceive it, and
vocational discipline would have maybe a different view, but standing
would be pretty much in just a standing position with only rare significant
walking, and walking – the walking part of the combination would be a
slow, easy walk. It should not be time pressured.

Q

Okay. So at one time, in your opinion, how long is that standing? I guess
that’s the part I’m a little unclear with.

A

Well, I think that she doesn’t – from what I saw in the record, I don’t think
that she would need more than just standard breaks, and so that would be
how I would look at it, which, I think, are, like, every two hours in a
workplace setting.

Q

Like, could only stand for two hours total throughout the day?

A

No, I’m sorry. I said walk for two hours and [stand?] for four, I believe.

Q

I heard it two hours standing, six hours slow walk.

A

I’m sorry. It must have – Oh, I meant four hours standing, two hours
walking. I’m sorry. Because the walking would pose more stress, and I
think that’s why it makes sense that it would be limited –

VE:

So they’re on their feet six hours?

[A]

Yes. Stand/walk six hours with the breakdown as I mentioned. Four hours
standing, two hours walking.

VE:

Still doesn’t make sense.

R. 58-61. 5 This exchange conveys this uncertainty, which continued into the subsequent
testimony and into the hypothetical questions posed to the vocational expert. In the hypothetical,
the ALJ restricted plaintiff to “standing and walking [] six elevated hours,” which the ALJ
defined as “light RFC.” R. 66. Based on this hypothetical, the vocational expert stated that
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When a VE says that an ME’s RFC does not make sense, a reasonable ALJ would obtain a true
clarification of the testimony.

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plaintiff could work as a hand packer, assembler, or hand sorter. However, in response to
questions from plaintiff’s counsel, the vocational expert stated that these jobs would not be
available if plaintiff “had to walk away from the workstation.” R. 67.
The Court cannot follow this line of testimony or the various distinctions and
qualifications going back and forth. Put differently, the Court is not confident the participants
fully understood each other and were on the same page. This conclusion is further supported by
the Government’s response brief. Although the Government argues that these discrepancies can
be discounted as merely harmless errors, the Government still concedes that both the medical
expert and ALJ had to make various “clarifications” during this testimony. Dkt. #19 at 6
(referring to the “ME”s subsequent clarification” and noting that the ALJ “clarified” certain
other facts). The Government recognizes that this portion of the testimony is, to put it mildly,
confusing. As for the question of whether plaintiff would have to intermittently walk throughout
the work day, a qualification that if true the vocational expert testified would preclude all jobs,
the Government points to Dr. Savage’s testimony that “standing would be pretty much in just a
standing position with only rare significant walking, and [] the walking part of the combination
would be a slow, easy walk.” Id. (quoting from R. 60). Again, this testimony contains ambiguous
and vague statements. It is not clear how the expert was defining “rare,” “significant,” “easy,”
and “slow,” nor what all these terms collectively add up to in a practical sense. Rather than
attempt to further parse these statements and attempt to resolve them through the harmless error
doctrine, it is better to leave these issues for the ALJ who can provide accurate and complete
clarification on remand.
Based on both of the above arguments, the Court finds that a remand is appropriate so
that these issues can be addressed with further proceedings on remand. The Court will not

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remand with an order that these benefits must be paid, which is plaintiff’s preferred remedy,
because the above-described uncertainties make such a conclusion impossible. However, given
the relatively small stakes involved, the Court encourages the parties to consider whether this
matter could be settled rather going through another full round of administrative proceedings.
CONCLUSION
For these reasons, plaintiff’s motion for summary judgment is granted, the government’s
motion is denied, and this case is remanded for further consideration.

Date: December 20, 2016

By:

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___________________________
Iain D. Johnston
United States Magistrate Judge