Holloway v. Commissioner of Social Security
Filing
24
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. Signed by Magistrate Judge Clifford J. Proud on 10/10/2012. (jmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CAROLYN D. HOLLOWAY,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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Civil No. 12-178-CJP
MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Carolyn D. Holloway is before the Court,
represented by counsel, seeking review of the final decision of the Commissioner of Social
Security denying her Disability Insurance Benefits (DIB).1
Procedural History
Ms. Holloway applied for benefits in 2009, alleging disability beginning on April 13,
2008. (Tr. 101). The application was denied initially and on reconsideration. After a hearing,
Administrative Law Judge (ALJ) William L. Hafer denied the application on December 3, 2010.
(Tr. 11-18). Plaintiff’s request for review was denied by the Appeals Council, and the December
3, 2010, decision became the final agency decision. (Tr. 1).
Plaintiff has exhausted her administrative remedies and has filed a timely complaint in
this court.
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. 11.
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Issues Raised by Plaintiff
Plaintiff raises the following issues:
(1)
The ALJ erred in that he failed to consider or misstated evidence favorable to
plaintiff’s claim.
(2)
The ALJ’s determination of plaintiff’s credibility is patently wrong.
(3)
Because of the above errors, the ALJ’s assessment of plaintiff’s RFC is erroneous.
(4)
The ALJ erred in weighing the medical evidence, specifically, in the weight he
afforded to the opinions of her treating rheumatologist, Mark Stern, M.D.
(5)
Because of the above errors, the ALJ’s decision was not supported by substantial
evidence.
Applicable Standards
To qualify for DIB, a claimant must be disabled within the meaning of the applicable
statutes. 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 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
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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 Ms.
Holloway was, in fact, disabled during the relevant time period, but whether the ALJ’s findings
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.”
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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 Hafer 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 she
is insured for DIB through March 31, 2012. He concluded that plaintiff has severe impairments
of fibromyalgia and heel spurs. He found that her alleged mental impairment was not severe, and
that her impairments do not meet or equal a listed impairment. (Tr. 13-14)
The ALJ concluded that plaintiff had the residual functional capacity (RFC) to perform a
limited range of light work. The ALJ concluded that plaintiff’s statements about her symptoms
were not credible to the extent that they conflicted with this RFC assessment. (Tr. 14-17). At
step 4, the ALJ determined that plaintiff was able to perform her past relevant work as a
bartender and cashier, and was therefore not disabled. (Tr. 17-18).
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
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record, focused on the issues raised by plaintiff.2
1.
Agency Forms
Ms. Holloway was born in 1957 and was 51 years on the alleged date of disability. (Tr.
117). She is insured for DIB through March 31, 2013. (Tr. 109).
In a Disability Report, plaintiff stated that she was 5'10" and weighed 170 pounds. She
said she had fibromyalgia, colitis and arthritis. She said she was fatigued, had severe pain and
was unable to stand for very long, lift or carry. She stopped working on April 13, 2008, because
she was unable to physically do the work. (Tr. 121).
Plaintiff worked as a bartender in a VFW club and as a cashier/stockperson in a grocery
store. She had also worked as a cook in a restaurant. (Tr. 141). She completed the 9th grade in
school. (Tr. 128).
In a Function Report, plaintiff stated that she lived with her husband. She said that she
tries to do housework, but, on some days, she can do very little. She does a little bit at a time.
She said that she hurts constantly and her physical activity is limited. Her pain and fatigue vary
from day to day, and she tries to do what she can. Her husband helps her. (Tr. 132-140).
2.
Evidentiary Hearing- September 23, 2010
Plaintiff was represented at the hearing by an attorney. (Tr. 3).
Plaintiff testified that she had worked as a bartender in social clubs for years. She did the
typical duties, such as stocking the bar and mixing drinks. She also worked as a cashier and
stocker in a grocery store from January to April, 2008. She was unable to lift some items in that
2
As plaintiff has not challenged the finding that she does not have a severe mental
impairment, the Court will not delve into the evidence regarding her mental and emotional status
in any great detail.
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job, such as cases of soda. She quit work in April, 2008, because she could not take standing any
more, and lifting all the food, scanning it, and bending over to put it in a cart was too much for
her. (Tr. 35-36).
Ms. Holloway testified that her worst pain is in her feet, legs and back. To reliever her
pain, she stays off her feet and does exercises given to her by her doctor. She also has pain
medication which she does not like to take unless absolutely necessary. (Tr. 36-37). She has
intermittent pain and swelling in her hands. (Tr. 47).
Plaintiff testified that she can sit for about 20 minutes and can stand for 20 to 30 minutes.
(Tr. 38). She had surgery on her foot on July 13, 2010, and “it didn’t turn out well.” Dr. Graham
did the surgery. She has plantar fascitis. Since the surgery, she had less throbbing heel pain, but
it is still there. She had 2 steroid shots in her foot the day before the hearing. (Tr. 38- 40).
She testified that she does not do much. She lays down for one-third to one-half of the
day. She tries to do housework. She gets more fatigued as the afternoon progresses. (Tr. 41).
She has side effects of dry mouth, headaches and drowsiness from her medications. She
takes Cymbalta for fibromyalgia, and it interferes with her concentration. (Tr. 43-44).
A vocational expert (VE) testified that Ms. Holloway’s prior work as a bartender and
cashier was light and semiskilled. (T. 48).
The ALJ asked the VE to assume a person who could lift 20 pounds occasionally and 10
frequently, sit, stand or walk each 6 out of 8 hours, limited to no ladders, ropes, scaffolds, and
only occasional climbing stairs, stooping, kneeling, crouching and crawling, with no work at
unprotected heights. The VE testified that such a person would be able to do plaintiff’s past
relevant work. (Tr. 49). If the person could only stand and walk for 2 out of 8 hours, she could
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not do plaintiff’s past work. (Tr. 49).
3.
Medical Records
A note from Clay Medical Center dated March 6, 2008, states that Ms. Holloway had a
history of fibromyalgia and had recently started taking Lyrica instead of Amitripyline. She had
some improvement in pain but still had joint pain and muscle aches. She had started working as
a cashier 15 hours a week, which had increased her symptoms. (Tr. 314). On May 8, 2008, she
complained of left elbow pain and left knee pain. Her left knee gave out while climbing stairs,
causing her to hurt her right knee. She was told to use Ibuprofen and anti-inflammatories, and to
get braces for her elbow and knee. She was given a Lidocaine injection in the left knee. She had
no insurance and could not afford to see an orthopedic doctor. (Tr. 316).
In September, 2008, she told a physician’s assistant at Clay Medical that she wanted to
discontinue Lyrica because it was causing memory loss and confusion. She was switched to
Diclofenac. She complained of muscle and joint aching, and pain in her right heel. She refused a
Kenalog injection into her right heel. (Tr. 318).
In November, 2008, Ms. Holloway saw Dr. Rubio at Southern Illinois Healthcare
Foundation for complaints of pain and fatigue. Dr. Rubio referred her to a rheumatologist, Dr.
Stern. (Tr. 241-244).
Plaintiff was first seen by Dr. Mark Stern on January 30, 2009. His note states that she
was being seen “for her fibromyalgia” and she said she had been having pain all over. On exam,
Dr. Stern noted pain in many areas, including left shoulder, neck, thoracic spine, lumbar spine,
hips and right metatarsal joint and foot. She had weakness in the right leg. He noted that she
walked with a limp on the right. She had a large spur on the right heel. X-rays of the lumbar
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spine were negative. He recommended a lumbar MRI, and prescribed Decadron. He referred her
to physical therapy for a heel brace or cushion. (Tr.252 -254). Dr. Stern saw plaintiff again in
February, 2009, and noted that Decadron did not give her much benefit. He prescribed physical
therapy for her right heel pain. (Tr. 251).
Ms. Holloway attended 12 physical therapy sessions from February 26 to March 25, 2009.
According to the discharge note, “no significant improvement [was] noted.” (Tr. 208).
On April 23, 2009, Dr. Stern injected her right heel with Depo-Medrol. (Tr. 249-250). In
June, 2009, Dr. Stern noted that she had chronic complaints of soft tissue pain. He found
tenderness in a number of areas tested, including forearm, upper arm, trapezius, right gluteal
muscle and thighs. His assessment was fibromyalgia. He prescribed Celebrex, Flexeril and
Zanaflex. She was also given Decadron “if she needed it for emergency reasons.” (Tr. 269). In
June and again in August, 2009, Dr. Stern detected tenderness in a number of areas on physical
examination. (Tr. 268-270). In December, 2009, Dr. Stern again noted fibromyalgia and right
heel pain with plantar fascitis. He again injected the right heel. (Tr. 302-303).
Dr. Stern completed a report entitled Residual Functional Capacity Report on March 15,
2010. This form asked the doctor to assume that she was capable of no more than light
exertional work. He wrote that her diagnoses were fibromyalgia, facet degeneration at L5-S1
level, and plantar spur on the right. For objective findings, he wrote “soft tissue pain and
multiple trigger points.” He opined that she should avoid even moderate exposure to extremes of
temperature, environmental irritants and hazards such as machinery and heights. He also opined
that she would miss work about twice a month due to her impairments or treatment. (Tr. 310312).
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Dr. Stern saw plaintiff on May 19, 2010. He noted that her fibromyalgia was unchanged.
He also noted that she still had pain in her right heel despite trying heel injections, pain patches
and physical therapy. Dr. Stern adjusted her medications. Zanaflex, Cymbalta and Alprazolam
were increased, and Feldene was discontinued. He added Darvocet as needed. (Tr. 338-339).
Ms. Holloway began seeing a podiatrist, Dr. James Graham, for her right heel pain on
February 26, 2010. He noted a history of right heel pain for the past 18 months. She was not as
tender since her heel had been injected by Dr. Stern, but she still had throbbing pain. He noted
that she was “active in housework duties.” Dr. Graham noted positive Tinel’s and Valleix’s
signs of the tibial nerve and its branches on neurological exam. The assessment was plantar
fascitis, bursitis, hypermobile foot, TTS and pain in limb.3 Orthotics were prescribed. (Tr. 343344). In March, 2010, Dr. Graham injected plaintiff’s foot with steroids and discussed surgery.
(Tr. 345). In May, 2010, Dr. Graham noted that she continued to have pain in her right foot. He
again noted positive findings on neurological testing of the tibial nerve, and diagnosed TTS as
well as plantar fascitis. He discussed doing an endoscopic plantar fasciotomy alone, or in
conjunction with a tarsal tunnel decompression (TTD). A TTD procedure would involve general
anesthetic and 3 weeks in a nonweightbearing cast. (Tr. 346). She returned in July, 2010, and
Dr. Graham noted that she had 18 months of right heel pain and had failed conservative
3
TTS stands for tarsal tunnel syndrome. According to the website of the American
College of Foot and Ankle Surgeons, “Tarsal tunnel syndrome is a compression, or squeezing, on
the posterior tibial nerve that produces symptoms anywhere along the path of the nerve running
from the inside of the ankle into the foot. Tarsal tunnel syndrome is similar to carpal tunnel
syndrome, which occurs in the wrist. Both disorders arise from the compression of a nerve in a
confined space.” See, http://www.foothealthfacts.org/footankleinfo/tarsal-tunnel-syndrome.htm,
accessed on October 10, 2012.
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treatment. She opted to have the plantar fasciotomy done and to defer treatment of her TTS. Dr.
Graham wrote, “Patient realizes some of this [pain] is due to the TTS. Patient also realizes we
are trying to go for plantar fascial release and defer to a later date as this is more conducive to the
patient’s active lifestyle.” (Tr. 346).
The surgery took place on July 13, 2010. (Tr. 349). There were 4 postoperative visits.
The last visit was on August 30, 2010. Dr. Graham wrote that she had only 40% improvement.
She continued to have pain. She again had positive findings on neurological testing of the tibial
nerve, and the diagnoses were TTS, plantar fascitis, bursitis, hypermobile foot and pain in limb.
(Tr. 348).
4.
RFC Assessment
State agency consultant Charles Wabner, M.D., reviewed medical records and assessed
plaintiff’s residual functional capacity (RFC) on July 6, 2009. He indicated that the primary
diagnosis was fibromyalgia, with a secondary diagnosis of rectal polyp and “other alleged
impairment” of osteoarthritis. He opined that Ms. Holloway was able to meet the exertional
requirements of light work, that is, occasionally lifting 20 pounds, frequently lifting 10 pounds,
standing/walking for 6 out of 8 hours, sitting for 6 out of 8 hours, and unlimited ability to
push/pull with upper and lower extremities. He opined that she was further limited to only
occasional climbing of ladders, ropes and scaffolds due to fibromyalgia, but she had no other
postural limitations. She had no manipulative limitations, and the only environmental limitation
was that she should avoid concentrated exposure to hazards such as machinery and heights. (Tr.
258-265).
Four months later, a second state agency consultant agreed with the above RFC
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assessment. (Tr. 298-300).
Analysis
Plaintiff is correct that the ALJ failed to adequately consider the medical evidence in that
he ignored medical evidence favorable to her claim.
“The ALJ is not required to discuss every piece of evidence, but must build a logical
bridge from evidence to conclusion.” Vilano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009), and
cases cited therein.
In building the logical bridge, the ALJ cannot simply ignore a line of
evidence that contradicts his conclusions. Rather, he must “confront evidence that does not
support his conclusion and explain why it was rejected.” Indoranto v. Barnhart, 374 F.3d 470,
474 (7th Cir. 2004).
Here, ALJ Hafer’s discussion of the medical evidence leaves much to be desired. He
consistently “cherry-picked” evidence that tended to minimize plaintiff’s impairments while
ignoring evidence that suggested that she was more limited than his RFC assessment would
indicate. For instance, the ALJ ignored objective and clinical findings recorded by Dr. Stern on
several visits. He failed to note that Dr. Stern found hypertrophic changes to some of the joints
in plaintiff’s fingers and tenderness in many areas of the body on January 30, 2009. (Tr. 252254). With regard to the physical therapy records, he highlighted interim notes documenting
some relief of pain and soreness, but ignored the discharge evaluation which stated that “no
significant improvement [was] noted.” (Tr. 208). He ignored the fact that Dr. Stern injected
plaintiff’s right heel twice after her discharge from physical therapy, which suggests that physical
therapy was not nearly as successful as the ALJ viewed it to be.
The ALJ was very selective in his discussion of Dr. Stern’s notes from February 18, 2009,
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through May 19, 2010. For instance, citing to Dr. Stern’s note of August 18, 2009, he said that a
joint examination showed no evidence of active inflammation, while failing to recognize that Dr.
Stern recorded tenderness in numerous areas on soft tissue examination. See, Tr. 267. Similarly,
he remarked that a May, 2010, “physical and joint examination was unremarkable except for the
subjective complaint of ‘mild right heel pain.’” (Tr. 15). In fact, on that visit, Dr. Stern noted in
the history that her fibromyalgia was unchanged and she was experiencing increasing fatigue. He
changed her medications, increasing the dosage of Zanaflex, Cymbalta and Alprazolam,
discontinuing Feldene, and adding Darvocet as needed. (Tr. 338-339).
The ALJ’s analysis of Dr. Stern’s records suggests that he did not understand the nature
of fibromyalgia, which the Seventh Circuit has described as a “common, but elusive and
mysterious, disease.” Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). The ALJ highlighted
the absence of positive results on x-ray, EMG and MRI testing, but such negative test results are
not relevant to the diagnosis or severity of fibromyalgia:
Its cause or causes are unknown, there is no cure, and, of greatest importance to disability
law, its symptoms are entirely subjective. There are no laboratory tests for the presence or
severity of fibromyalgia. The principal symptoms are “pain all over,” fatigue, disturbed
sleep, stiffness, and-the only symptom that discriminates between it and other diseases of
a rheumatic character-multiple tender spots, more precisely 18 fixed locations on the
body (and the rule of thumb is that the patient must have at least 11 of them to be
diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.
Sarchet, Ibid.
In similar fashion, the ALJ selectively discussed Dr. Graham’s records, omitting any
mention of the positive neurological findings and the diagnosis of TTS. The ALJ failed to
acknowledge that Dr. Graham diagnosed two separate conditions affecting plaintiff’s right foot,
each of which would be addressed by a separate surgical procedure. Dr. Graham performed only
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the procedure to relieve plantar fascitis; as of his last office visit, plaintiff continued to have
positive findings with respect to the tibial nerve on neurologic exam and Dr. Graham continued
to indicate a diagnosis of TTS. See, Tr. 348. The ALJ ignored this evidence, highlighting
instead that she had a 40% improvement. (Tr. 15). In fact, Dr. Graham recorded that she had
“only 40% improvement with plantar fascitis, bursitis, and heel pain.” (Tr. 348). The ALJ
failed to recognize that this assessment did not include her TTS, since the surgery did not address
that condition.
Plaintiff is also correct that the ALJ’s credibility determination was erroneous.
ALJ Hafer expressed his credibility findings using the type of “meaningless boilerplate”
language which the Seventh Circuit has repeatedly criticized. See, Bjornson v. Astrue, 671 F.3d
640, 644-646 (7th Cir. 2012), and cases cited therein. He said that Ms. Holloway’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. 14).
The ALJ’s statement is meaningless because he says that plaintiff’s impairments could
reasonably be expected to cause some of her alleged symptoms, but he never identifies which
ones. In addition, the ALJ put the cart before the horse by determining Ms. Holloway’s RFC
first, without regard to her credibility, and then rejecting plaintiff’s statements to the extent that
they did not mesh with his RFC findings. This approach “turns the credibility determination
process on its head by finding statements that support the ruling credible and rejecting those
statements that do not, rather than evaluating the [claimant’s] credibility as an initial matter in
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order to come to a decision on the merits.” Brindisi v. Barnhart, 315 F.3d 783, 787-788 (7th
Cir. 2003).
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). The only attempt ALJ Hafer made to
support his credibility findings was to refer to daily activities, the fact that plaintiff cancelled
some doctor’s appointments, and the fact that medication controlled her symptoms to some
degree. (Tr. 17).
The ALJ’s reasons are not supported by the record and are not sufficient to sustain his
credibility findings. According to the ALJ, Ms. Holloway testified to “daily activities which are
not limited to the extent one would expect, given the complaints of disabling symptoms and
limitations.” (Tr. 17). Ms. Holloway actually testified that she tried to do housework and
yardwork, but had to do a little at a time and had to recline or lay down in between, and she
became more fatigued as the afternoon progressed. (Tr. 41, 46-47). The Seventh Circuit has
pointed out that there are “critical differences” between activities of daily living and a full-time
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job, and has noted that the “failure to recognize these differences is a recurrent, and deplorable,
feature of opinions by administrative law judges in social security disability cases.” Bjornson v.
Astrue, 671 F.3d 640, 647 (7th Cir. 2012). While it is proper for an ALJ to consider daily
activities, the ALJ “must explain perceived inconsistencies between a claimant’s activities and
the medical evidence..” Jelinek v. Astrue, 662 F.3d 805, 812 (7th Cir. 2011). The limited daily
activities testified to by Ms. Holloway do not support the conclusion that she is capable of fulltime employment as a bartender or cashier.
The ALJ said that plaintiff cancelled appointments on a “number” of occasions. In fact,
she cancelled 3 appointments at Clay Medical Center between May, 2008, and January, 2009.
(Tr. 203-205). The record contains no explanation for the cancellations, and three cancelled
visits is minor in view of the amount of medical treatment Ms. Holloway received.
Lastly, the ALJ referred to plaintiff’s use of medication. Again, he misstated the record,
saying that her claim of side effects from Lyrica “did not result in medication changes.” (Tr. 17).
In fact, Lyrica was discontinued in September, 2008, because of side effects. (Tr. 318).
Much of the ALJ’s decision consists of an incomplete and selective discussion of the
medical evidence. This discussion was wholly inadequate to support the ALJ’s adverse
credibility findings. The ALJ may not selectively discuss the evidence, ignoring the parts that
conflict with his decision. Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009);
Godbey v. Apfel, 238 F.3d 803, 808 (7th Cir. 2000).
The ALJ’s errors require 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.
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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
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
For the reasons discussed above, plaintiff’s Motion for Summary Judgment (Doc. 19) is
GRANTED.
The Commissioner’s final decision denying Carolyn D. Holloway’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 10, 2012.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE
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