Lumpkin v. Astrue
Filing
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MEMORANDUM AND OPINION. The final order of the Commissioner is reversed and remanded pursuant to sentence four of 42 U.S.C. §405(g). The Clerk of Court is directed to enter judgment in favor of plaintiff in accordance with the attached order. Signed by Magistrate Judge Clifford J. Proud on 10/17/2012. (jmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RONNIE L. LUMPKIN,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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Civil No. 11-1131-CJP
MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Ronnie L. Lumpkin is before the Court,
represented by counsel, seeking review of the final decision of the Commissioner of Social
Security denying him Disability Insurance Benefits (DIB) and Supplemental Security Income
(SSI).1
Procedural History
Mr. Lumpkin applied for benefits in 2008, alleging disability beginning on August 15,
2007. (Tr. 126, 130). The application was denied initially and on reconsideration. After a
hearing, Administrative Law Judge (ALJ) Gary L. Vanderhoof denied the application on June 18,
2010. (Tr. 13-22). Plaintiff’s request for review was denied by the Appeals Council, and the
June 18, 2010, decision became the final agency decision. (Tr. 3).
Plaintiff has exhausted his administrative remedies and has filed a timely complaint in
1
This case was referred to the undersigned for final disposition upon consent of the
parties, pursuant to 28 U.S.C. §636(c). See, Doc. 12.
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this court.
Issues Raised by Plaintiff
Plaintiff raises the following issues:
(1)
The ALJ failed to explain why plaintiff was not entitled to a period of disability.
(2)
The ALJ’s determination of plaintiff’s credibility was erroneous.
(3)
The ALJ failed to explain why he rejected plaintiff’s claims of pain and fatigue in
his RFC assessment.
(4)
The ALJ failed to consider plaintiff’s claim that he cannot work full-time.
(5)
The ALJ failed to include limitations in maintaining persistence, pace or
concentration in his RFC assessment.
Applicable Standards
To qualify for DIB or SSI, a claimant must be disabled within the meaning of the
applicable statutes.2 For these purposes, “disabled” means the “inability 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A) and
1382c(a)(3)(A). A “physical or mental impairment” is an impairment resulting from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
2
The statutes and regulations pertaining to Disability Insurance Benefits (DIB) are found
at 42 U.S.C. § 423, et seq., and 20 C.F.R. pt. 404. The statutes and regulations pertaining to SSI
are found at 42 U.S.C. §§ 1382 and 1382c, et seq., and 20 C.F.R. pt. 416. For all intents and
purposes relevant to this case, the DIB and SSI statutes are identical. Furthermore, 20 C.F.R. §
416.925 detailing medical considerations relevant to an SSI claim, relies on 20 C.F.R. Pt. 404,
Subpt. P, the DIB regulations. Most citations herein are to the DIB regulations out of
convenience.
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clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3) and 1382c(a)(3)(C).
Social Security regulations set forth a sequential five-step inquiry to determine whether a
claimant is disabled. In essence, it must be determined (1) whether the claimant is presently
unemployed; (2) whether the claimant has an impairment or combination of impairments that is
severe; (3) whether the impairments meet or equal one of the listed impairments acknowledged
to be conclusively disabling; (4) whether the claimant can perform past relevant work; and (5)
whether the claimant is capable of performing any work within the economy, given his or her
age, education and work experience. See, Schroeter v. Sullivan, 977 F.2d 391, 393 (7th Cir.
1992); Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993); 20 C.F.R. § 404.1520(b-f).
If the answer at steps one and two is “yes,” the claimant will automatically be found
disabled if he or she suffers from a listed impairment, determined at step three. If the claimant
has a severe impairment but does not meet or equal a listed impairment at step three, and cannot
perform his or her past work (step four), the burden shifts to the Commissioner at step five to
show that the claimant can perform some other job. Rhoderick v. Heckler, 737 F.2d 714, 715
(7th Cir. 1984). The Commissioner bears the burden of showing that there are a significant
number of jobs in the economy that claimant is capable of performing. See, Bowen v. Yuckert,
482 U.S. 137, 146, 107 S. Ct. 2287, 2294 (1987); Knight v. Chater, 55 F.3d 309, 313 (7th Cir.
1995).
It is important to keep in mind the proper standard of review for this Court. "The 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). Thus, the Court must determine not whether Mr.
Lumpkin was, in fact, disabled during the relevant time period, but whether the ALJ’s findings
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were supported by substantial evidence; and, of course, whether any errors of law were made.
See, Books v. Chater, 91 F.3d 972, 977-978 (7th Cir. 1996) (citing Diaz v. Chater, 55 F.3d 300,
306 (7th Cir.1995)).
This Court uses the Supreme Court’s definition of “substantial evidence,” that is, “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971). In reviewing for
substantial evidence, the entire administrative record is taken into consideration, but this Court
does not reweigh evidence, resolve conflicts, decide questions of credibility, or substitute its own
judgment for that of the ALJ. Brewer v. Chater, 103 F.3d 1384, 1390 (7th Cir. 1997); Shideler
v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012). However, while judicial review is deferential, it is
not abject; this Court does not act as a rubber stamp for the Commissioner. See, Parker v.
Astrue, 597 F.3d 920, 921 (7th Cir. 2010), and cases cited therein.
The Decision of the ALJ
ALJ Vanderhoof followed the five-step analytical framework described above. He found
that plaintiff had not engaged in substantial gainful activity since the alleged onset date, and that
he was insured for DIB through December 31, 2011. He concluded that plaintiff had severe
impairments of back problems and a mood disorder, and that his impairments do not meet or
equal a listed impairment. (Tr. 13-17)
The ALJ concluded that plaintiff had the residual functional capacity (RFC) to perform a
limited range of work at the sedentary exertional level. The ALJ concluded that plaintiff’s
statements about his symptoms were not credible to the extent that they conflicted with this RFC
assessment. At step 4, the ALJ determined that plaintiff was not able to perform his past relevant
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work. At step 5, relying on the testimony of a vocational expert, he determined that plaintiff was
able to do other work that existed in the national economy, such as circuit board touch-up,
addresser and surveillance system monitor. (Tr. 17-22).
The Evidentiary Record
This Court has reviewed and considered the entire record in formulating this Report and
Recommendation. The following is a summary of some of the pertinent portions of the written
record, focused on the issues raised by plaintiff.
1.
Agency Forms
Mr. Lumpkin was born in 1968 and was 39 years on the alleged date of disability. (Tr.
154). In March, 2008, he was 5'9" and weighed 210 pounds. (Tr. 144). He said that he stopped
working in August, 2007, due to bulging and herniated discs in his lumbar spine. (Tr. 145).
Mr. Lumpkin has a GED. He was not in special education classes. (Tr. 152). He had
worked as a carpenter, crew supervisor for a window installation company, insurance producer,
self-employed crew supervisor in construction, warehouse manager and utility technician. (Tr.
158).
In a Function Report submitted in December, 2008, plaintiff said that he lived with his
family. On a typical day, he drove his kids to school, read or watched t.v., and laid down. He
said that he walked with a cane, had to wear a back brace when he was out of bed, and had to
wear a bone stimulator for four hours a day. (Tr. 214-215). He said that he was unable to do
anything that would put pressure on his back. (Tr. 215-216). He had been having problems with
depression and cried for no reason at times. (Tr. 220).
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2.
Evidentiary Hearing- May 6, 2010
Plaintiff was represented at the hearing by an attorney. (Tr. 29).
Psychologist Susan Pelzer testified as a medical expert based on her review of the record.
She testified that plaintiff did not have a mental impairment that would result in marked
impairments on the “B” criteria. Referring to the report of a state agency consultant who
performed a psychological exam, she noted that he had been diagnosed with “pain disorder
associated with both psychologic [sic] factors and general medical condition by history , mood
disorder associated with health conditions by history and adjustment disorder NOS.” She
testified that, in her opinion, his mental condition caused mild limitation of daily activities, mild
to moderate limitation of attention, concentration and pace based on pain, and mild limitation of
social functioning. (Tr. 30-33).
Dorothy Leon, M.D., a specialist in Physical Medicine and Rehabilitation, also testified
as a medical expert based on her review of the records. She testified that his physical condition
did not meet or equal a Listing. She summarized the medical records, which indicate that he had
an ankle fusion in the past due to a fracture, which caused him to walk with a limp. He had back
surgery in October, 2008, consisting of a fusion from L2-S1. He did well with physical therapy
after surgery, and his doctor released him, to be seen as needed. A functional capacity evaluation
in March, 2010, put him in the light category. (Tr. 35-37). Dr. Leon opined that he could lift 10
pounds occasionally and 5 pounds frequently, stand/walk for 2 out of 8 hours, sit for 6 out of 8
hours, with no climbing ladders, ropes or scaffolds and only occasional stooping and crouching.
(Tr. 37).
Mr. Lumpkin testified that lived with his wife and two children, aged 16 and 13. His wife
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worked. He drove the kids to school, and did a little bit around the house, like rinsing dishes.
Sometimes he went to the store. The heaviest thing he could lift was a gallon of milk. He could
be on his feet for 15 or 20 minutes. He had to change positions and stand up if he sat for a while.
He laid down during the day to relieve his pain. He had medication for pain and muscle spasms,
which he took as needed, two or three times a week. (Tr. 40-46). He testified that he could not
work full-time at a job like surveillance system monitor because “after the first day I would have
to take a [sic] medication just to exist.” (Tr. 47). He testified that pain medication did not really
do anything for him, but muscle relaxers caused him to be “wiped out” the next day such that he
could not even drive. (Tr. 48).
Mr. Lumpkin said that his back pain improved after the surgery for a little bit, then it
started getting progressively worse. (Tr. 49).
A vocational expert (VE) testified. The ALJ asked the VE to assume a person who could
lift 10 pounds occasionally and 5 frequently, stand or walk 2 out of 8 hours, limited to no ladders,
ropes, scaffolds, and only occasional stooping and crouching, with no work at unprotected
heights around dangerous machinery and no balancing. He also had mild limitations of daily
living and social functioning, and mild to moderate limitation of attention and concentration.
The VE testified that such a person would not be able to do plaintiff’s past relevant work.
However, this person could do sedentary jobs such as circuit board touch up assembler,
addresser, and surveillance system monitor. (Tr. 50-52).
3.
Medical Records
Mr. Lumpkin was see by Dr. Stynowick at Christian Hospital Pain Management in 2007.
On May 10, 2007, Dr. Stynowick noted that Mr. Lumpkin complained of diffuse low back and
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leg pain. He did not have lower extremity numbness or weakness. His pain began when he fell
from a ladder in 2002, but began worsening in February, 2007. He worked as a carpenter. He
had tried physical therapy and medication. An MRI was done in March, 2007. It showed lumbar
disc bulges. Dr. Stynowick did a medial branch nerve block from L-2 to S-1 on May 24, 2007.
(Tr. 246-249).
Plaintiff was treated at the Center for Interventional Pain Management. He underwent
various procedures there, including injection of facet joints in June and July, 2007, nerve root
injection in October, 2007, radiofrequency neurolysis (denervation) procedures at L2-L5 in July,
2007 and February, 2008, and injection of his sacroiliac joints in April, 2008. (Tr. 283-284, 325,
356, 359, 366).
Bruce Amble, Ph.D., performed a consultative psychological examination on July 17,
2008. Plaintiff indicated that he had last worked in August, 2007, and could not go back to work
because of his back pain. He described limited daily activities and said that he often had to sit or
lay down because of his back. Dr. Amble noted that he showed some depressive symptoms with
constriction and some flatness of affect. The diagnostic impression was pain disorder associated
with both psychological factors and medical condition, mood disorder associated with health
condition and adjustment disorder NOS. (Tr. 393-396).
Mr. Lumpkin saw Dr. Kee Park, a neurosurgeon on July 3, 2008. Mr. Lumpkin told Dr.
Park that another surgeon had recommend spinal fusion surgery, and he wanted a second opinion.
A recent MRI showed disc herniation at L1-2 and L3-4, with L5-S1 disc collapse. (Tr. 525-526).
Dr. Park did a discogram which showed that his pain was from the L2-3, L4-5, L5-S1 levels, and
probably L3-4 as well. He recommended an electrothermal angioplasty treatment before doing
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surgery. (Tr. 524, 527). About three weeks after that procedure, Mr. Lumpkin reported 30 to
40% reduction of his back pain. (Tr. 522). However, in September, 2008, he reported that he
had felt a popping sensation in his back which aggravated his back pain radiating down into his
right leg. (Tr. 521). Dr. Fonn, who practiced with Dr. Park, noted in October, 2008, that a new
MRI showed degenerative disc disease and moderate to severe lateral canal stenosis at L2 to S1,
with compression of the exiting nerve root. He continued to report incapacitating pain in his
back with spasms and pain radiating into his heels, worse on the right. Dr. Fonn noted that had
tried “just about everything,” and recommended a four level fusion. (Tr. 520). Dr. Fonn did the
surgery on October 28, 2008. (Tr. 516-517). At the four week follow-up visit, his hardware was
in good placement. Dr. Fonn advanced him to driving, and declared him temporarily disabled so
he could get a temporary handicapped tag for his car. (Tr. 509).
On February 4, 2009, Dr. Fonn noted that plaintiff had good fusion, but was having some
spasms. He recommended physical therapy and a lumbar CT. (Tr. 689). A CT on April 3, 2009,
showed that the hardware was in good placement and had not failed. There was a small disc
protrusion at L1-L2 which did not cause canal stenosis. (Tr. 684-685). On April 15, 2009,
plaintiff reported to Dr. Fonn that he was doing very well with his physical therapy. Dr. Fonn
recommended that he continue with therapy and return to the office as needed. (Tr. 683).
Plaintiff was discharged from physical therapy on May 29, 2009. He was going back to
school and was not returning to construction work. All goals had been met and his prognosis
was excellent. He was given a home exercise program. (Tr. 595).
Mr. Lumpkin saw his primary care physician, Dr. Harrison, for high blood pressure and
tightness in his chest in March and April, 2009. There were no notations of back complaints.
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(Tr. 650-651, 658-659). However, in September, 2009, Mr. Lumpkin complained to Dr.
Harrison of back pain with increased symptoms and spasms. On exam, Dr. Harrison found
tenderness and muscle spasms in the lumbosacral spine area. (Tr. 649-650).
Plaintiff returned to physical therapy for one visit on October 2, 2009, complaining of
increased back spasms after sitting in class for 3 hours. (Tr. 592- 593).
In March, 2010, a “Fit for Work” evaluation was done at Southern Illinois Healthcare by
a physical therapist. Plaintiff told the therapist that his biggest problem was muscle spasms, and
he rated his low back pain from 2/10 to 9/10 in the past 30 days. The therapist reported that he
tested in the light physical demand level, but had difficulty with all low level tasks such as
stooping and kneeling. He also had difficulty with material handling, especially pulling and
pushing. (Tr. 701-703).
4.
RFC Assessments
Based upon a review of medical records, a state agency consultant completed a Physical
Residual Functional Capacity (RFC) Assessment form on June 30, 2008. He opined that Mr.
Lumpkin could do work at the light level (lift 20 pounds occasionally, lift 10 pounds frequently,
sit for a total of 6 hours a day, stand/walk for a total of 6 hours a day), with other limitations. (Tr.
382-389).
A different state agency consultant assessed plaintiff’s RFC after his surgery. In October,
2008, Dr. Gotway opined that Mr. Lumpkin could do a limited range of work at the light level.
Dr. Gotway opined that he was able to sit for 6 out of 8 hours, but he was limited to
standing/walking for 2 out of 8 hours. He was further limited in ability to push/pull with his legs,
and was limited to only occasional postural activities and no balancing, (Tr. 532-539).
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M.W. DiFonso, PsyD, completed a Psychiatric Review Technique form on December 28,
2008.3 (Tr. 540-553). This assessment was based on a review of medical records and not a
personal examination. Dr. DiFonso opined that Mr. Lumpkin had an impairment which was not
severe. He opined that plaintiff had a mood disorder due to general medical condition, which he
categorized as an affective disorder. (Tr. 543). He did not indicate that plaintiff had any type of
somatoform disorder. (Tr. 546). A section of the form required him to assess functional
limitations with reference to the so-called B Criteria, which are the criteria set forth in paragraph
B of the mental disorders Listings. See, 20 C.F.R. Subpt. P. App. 1, §§12.00 et seq. Dr.
DiFonso rated his restriction of activities of daily living, difficulties in social functioning and
difficulties in maintaining concentration, persistence or pace as “mild.” (Tr. 550). Dr. DiFonso
stated in the notes that Dr. Amble had examined plaintiff and had diagnosed “mood disorder
associated with health condition.” (Tr. 552).
5.
Records not before the ALJ
The transcript contains medical records which were not before the ALJ and which post-
date his decision. See, Tr. 704-727. This evidence was submitted to the Appeals Council after
the ALJ rendered his decision, see, Tr. 7, and cannot be considered by this Court in determining
whether the ALJ’s decision was supported by substantial evidence. Getch v. Astrue, 539 F.3d
473, 484 (7th Cir. 2008); Rice v. Barnhart, 384 F.3d 363, 366, n. 2 (7th Cir. 2004).
Analysis
Plaintiff is correct that the ALJ failed to properly assess his credibility, particularly his
3
The Psychiatric Review Technique form is part of the “special technique” used by the
agency in evaluating alleged mental impairments. The special technique is explained in 20
C.F.R. §404.1520a.
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his complaints of pain.
ALJ Vanderhoof expressed his credibility findings using the standard language that is
often seen in social security decisions. He said that Mr. Lumpkin’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms; however, 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.” (Tr. 19). The Seventh Circuit has repeatedly criticized this language,
which it has called “meaningless boilerplate.” See, Bjornson v. Astrue, 671 F.3d 640, 644-646
(7th Cir. 2012), and cases cited therein.
Citing Richison v. Astrue, 462 Fed. Appx. 622 (7th Cir. 2012), the Commissioner
correctly points out that the use of the boilerplate language is not necessarily fatal. In that case,
the ALJ’s credibility determination was affirmed because he explained “which of [plaintiff’s ]
statements he did not credit and why....” Richison, supra, at 625-626.
The Commissioner’s argument is correct as a general principle, but it does not save the
ALJ’s decision here. The Seventh Circuit recently reiterated that the ALJ must determine a
claimant’s credibility by considering the factors set forth in 20 C.F.R. §404.1529(c) and must
support his credibility findings with evidence in the record. “Credibility findings must have
support in the record, and hackneyed language seen universally in ALJ decisions adds nothing.”
Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012). Here, in large part, ALJ Vanderhoof
based his credibility findings on a perceived lack of support in the medical records. See, Tr. 19.
The Commissioner seems to agree; in his brief, he says that, in explaining his credibility
determination, the ALJ “discussed the medical evidence in detail (see generally Tr. 16-19). In
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addition, the ALJ reasonably discussed other evidence, such as Plaintiff’s activities and use of
medications. (Tr. 18).” Doc. 25, p. 7.
First, the Court notes that “an ALJ may not discredit testimony of pain solely because
there is objective medical evidence to support it.” Myles v. Astrue, 582 F.3d 672, 677 (7th Cir.
2009). Yet, that is essentially what the ALJ did here. Based upon his perception that the
objective medical evidence established that Mr. Lumpkin “had no further documented problems”
after his release from physical therapy, he concluded that the medical records “fail to support the
claimant’s allegations as credible to the extent alleged.” (Tr. 19). However, the ALJ’s analysis
of the medical evidence is flawed.
The ALJ overlooked medical evidence that documented that Mr. Lumpkin did, in fact,
have problems following his release from physical therapy. The ALJ failed to mention the
records of his primary care physician. Plaintiff told Dr. Harrison in September, 2009, that he was
having back pain with increased symptoms and spasms. Dr. Harrison found tenderness and
muscle spasms in the lumbosacral spine area on examination. (Tr. 649-650). Further, plaintiff
returned to physical therapy for one visit on October 2, 2009, complaining of increased back
spasms after sitting in class for 3 hours. (Tr. 592- 593). This evidence was ignored by both the
ALJ and Dr. Leon, the medical expert who testified at the hearing. This evidence undermined
the ALJ’s conclusion, central to his credibility analysis, that the objective medical evidence
established that plaintiff had no documented problems after his release from physical therapy in
May, 2009. In addition, the ALJ said that “His last examination on March 16, 2010, was
unremarkable and no further treatment was recommended.” (Tr. 19). However, the
“examination” on March 16, 2010, was the Fit for Work evaluation that was done by a physical
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therapist, and not a physical examination done by a doctor. Further, the physical therapist did not
report “unremarkable” findings. See, Tr. 700-703.
A more fundamental flaw in the ALJ’s discussion of the medical evidence is that he
ignored or misunderstood the diagnosis of pain disorder.
After a consultative examination, state agency consultant Bruce Amble diagnosed pain
disorder associated with both psychological factors and medical condition, mood disorder
associated with health condition and adjustment disorder NOS. (Tr. 396). Dr. Pelzer, testifying
as a psychological expert, noted those diagnoses. (Tr. 30-33). She was not asked whether she
agreed with them. The ALJ determined that Mr. Lumpkin had a “mood disorder,” but did not
discuss the diagnosis of pain disorder. See, Tr. 15.
Pain disorder associated with both psychological factors and medical condition is
recognized in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSMIV). It is a somatic disorder. See, DSM-IV, §307.89. The ALJ did not mention this diagnosis,
which is distinct from the diagnosis of mood disorder. This was error. The ALJ was required to
discuss all of the diagnoses indicated by Dr. Amble; if he rejected the diagnosis of pain disorder,
he was required to explain why. See, Arnett v. Astrue, 676 F.3d 586, 592 (7th Cir. 2010),
holding that the ALJ erred in failing to discuss diagnoses reached by psychologists who
performed consultative examinations of the plaintiff.
The diagnosis of pain disorder is highly relevant to the determination of credibility:
Pain is always subjective in the sense of being experienced in the brain. The question
whether the experience is more acute because of a psychiatric condition is different from
the question whether the applicant is pretending to experience pain, or more pain than she
actually feels. The pain is genuine in the first, the psychiatric case, though fabricated in
the second.
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Carradine v. Barnhart, 360 F.3d 751, 754 (7th Cir. 2004).
This Court is not suggesting that ALJ Vanderhoof was required to accept that Mr.
Lumpkin suffers from pain disorder associated with both psychological factors and medical
condition. While he certainly was not required to accept this evidence, he was required to
confront it and “explain why it was rejected.” Indoranto v. Barnhart, 374 F.3d 470, 474 (7th
Cir. 2004). The failure to explain what he thought about the diagnosis leaves a gaping hole in
the required “logical bridge from evidence to conclusion.” Vilano v. Astrue, 556 F.3d 558, 562
(7th Cir. 2009), and cases cited therein.
Similarly, this Court is not suggesting that accepting the diagnosis of pain disorder
associated with both psychological factors and medical condition would compel the conclusion
that Mr. Lumpkin’s allegations of disabling pain must also be accepted. It would not. See,
Carrdine, supra. However, the ALJ’s credibility determination rested in large part on his
analysis of the medical evidence. Therefore, the failure to discuss the diagnosis of pain disorder
renders the credibility analysis erroneous, and requires remand. However, it should be clear that
this Court is not making any suggestion as to whether plaintiff is, in fact, disabled, or as to what
the ALJ’s decision should be on reconsideration.
Remand of a social security case can only be ordered pursuant to sentence four or
sentence six of 42 U.S.C. § 405(g). A sentence four remand depends upon a finding of error, and
is, itself, a final, appealable order. In contrast, a sentence six remand is for the purpose of receipt
of new evidence, but does not determine whether the Commissioner’s decision as rendered was
correct. A sentence six remand is not an appealable order. See, Shalala v. Schaefer, 509 U.S.
292, 296-298 (1993); Perlman v. Swiss Bank Corporation Comprehensive Disability
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Protection Plan, 195 F.3d 975, 978 (7th Cir. 1999).
Here, a sentence four remand is appropriate. Upon remand pursuant to sentence four,
judgment must be entered. Shalala v. Schaefer, 509 U.S. 292, 297-298 (1993).
Conclusion
The Commissioner’s final decision denying Ronnie L. Lumpkin’s application for social
security disability benefits is REVERSED and REMANDED to the Commissioner for
rehearing and reconsideration of the evidence, pursuant to sentence four of 42 U.S.C. §405(g).
The Clerk of Court is directed to enter judgment in favor of plaintiff.
IT IS SO ORDERED.
DATED: October 17, 2012.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE
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