Ewing v. Commissioner of Social Security
Filing
38
MEMORANDUM AND OPINION reversing the final order of the Commissioner and remanding 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 6/10/14. (klh2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KENNY D. EWING,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Defendant.
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Civil No.
13-74-CJP1
MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), Plaintiff Kenny Ewing 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) pursuant to 42 U.S.C. § 423. For
the reasons set forth below, the Commissioner’s decision is reversed and this matter is
remanded for rehearing and reconsideration of the evidence pursuant to sentence four of
42 U.S.C. § 405(g).
PROCEDURAL HISTORY
Kenny Ewing applied for benefits in August 2011 alleging disability due to
post-traumatic stress disorder, a back injury, and a neck injury (Tr. 175). After holding
an evidentiary hearing, Administrative Law Judge (ALJ) Stuart T. Janney denied the
application for benefits in a decision dated August 15, 2012 (Tr. 24–41). Ewing’s request
for review was denied by the Appeals Council, and ALJ Janney’s decision became the final
agency decision (Tr. 1). Ewing has exhausted his administrative remedies and has filed a
1
This case was assigned to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. §636(c) (Doc. 14).
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timely complaint in this court seeking judicial review of the ALJ’s adverse decision.
ISSUES RAISED BY PLAINTIFF
In his brief (Doc. 23), Ewing raises the following issues:
1. The ALJ failed to properly accommodate Ewing’s moderate social functioning
limitations;
2. The ALJ failed to properly accommodate Ewing’s limitations in concentration,
persistence, and pace;
3. The ALJ failed to properly consider Ewing’s headaches;
4. The ALJ failed to explain how the evidence supported the RFC assessment; and
5. The ALJ erred in assessing Ewing’s credibility.
APPLICABLE LEGAL STANDARDS
A.
Disability Standard
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). 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). “Substantial gainful activity” is
work activity that involves doing significant physical or mental activities for pay or profit.
20 C.F.R. § 404.1572.
The Social Security regulations set forth a sequential five-step inquiry to determine
whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4); Weatherbee v. Astrue, 649
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F.3d 565, 569 (7th Cir. 2011). If the ALJ determines that the claimant is disabled or not
disabled at any step of the five-step inquiry, the inquiry ends without proceeding to the
next step.
20 C.F.R. § 404.1520(a)(4).
The first step considers whether the claimant is presently unemployed. 20 C.F.R. §
404.1520(a)(4)(i). If the answer is “no,” the claimant is not disabled and the inquiry is
over; if the answer is “yes,” the inquiry proceeds to the next step.
Id. The second step
evaluates whether the claimant has an impairment or combination of impairments that is
severe, medically determinable, and meets the durational requirement.
404.1520(a)(4)(ii).
20 C.F.R. §
Again, if the answer is “no,” the claimant is not disabled and
the inquiry is over; if the answer is “yes,” the inquiry proceeds to the next step.
Id. The
third step analyzes whether the claimant’s severe impairment(s) meet or equal one of the
listed
impairments
acknowledged
to
be
conclusively
disabling.
20
C.F.R.
§
404.1520(a)(4)(iii). If the answer is “yes,” the claimant is automatically deemed disabled;
if the answer is “no,” the inquiry proceeds to the next step.
Id.
Before continuing to step four, the claimant’s residual functional capacity (“RFC”) is
assessed. 20 C.F.R. § 404.1520(a)(4). The fourth step assesses whether the claimant
can perform past relevant work given his or her RFC. 20 C.F.R. § 404.1520(a)(4)(iv). If
the answer is “yes,” the claimant is not disabled and the inquiry is over; if the answer is
“no,” the inquiry proceeds to the next step.
The fifth and final step assesses whether the
claimant can perform other work given his or her RFC, age, education, and work
experience.
20 C.F.R. § 404.1520(a)(4)(v).
If the answer is “yes,” the claimant is
not disabled and the claim is denied. Id. On the other hand, if the answer is “no,” the
claimant is deemed disabled. Id.
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B.
Judicial Review
The scope of judicial review of the Commissioner’s decision is limited.
“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 Ewing was in fact disabled, but whether the ALJ’s findings were supported by
substantial evidence and whether any errors of law were made. Jelinek v. Astrue, 662
F.3d 805, 811 (7th Cir. 2011) (“On judicial review, a court will uphold the Commissioner's
decision if the ALJ applied the correct legal standards and supported his decision with
substantial evidence.”)
The Supreme Court has defined “substantial evidence” as “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). In reviewing for “substantial evidence,” the entire
administrative record is taken into consideration, but the 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).
In addition to
supporting the decision with substantial evidence, the ALJ must also include an adequate
discussion of the issues and “build an accurate and logical bridge” from the evidence to
each conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008).
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) (listing cases). “If a decision lacks evidentiary support or is so poorly articulated as
to prevent meaningful review, a remand is required.” Kastner v. Astrue, 697 F.3d 642,
646 (7th Cir. 2012) (quoting Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002));
Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009) (“If the Commissioner's decision lacks
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adequate discussion of the issues, it will be remanded.”)
THE EVIDENTIARY RECORD
The Court has reviewed and considered the entire evidentiary record in formulating
this Memorandum and Order. The following summary of the record is directed to the
points raised by Ewing in his complaint.
A.
Plaintiff’s Background
Kenny Ewing was born in August 1982 and was 28 years old on the alleged onset
date—July 18, 2011. He is 5 feet, 10 inches tall and weighs approximately 145 pounds.
He has a 12th grade education. At the time of the evidentiary hearing in July 2012, Ewing
was living with his fianceé and his two children, ages seven and one and a half.
Following his graduation from high school, Ewing served in the United States Army
for seven years as an aircraft mechanic. In April 2007, while deployed to Afghanistan,
Ewing fell approximately 20 feet off the top of a military helicopter.
He suffered a
traumatic brain injury and injured his back and neck in the fall. Ewing claims that since
the fall, he has had vertigo, tinnitus, headaches, memory loss, and constant pain in his
neck and back. Due to his injuries, he was medically retired from the Army in June 2009.
Ewing also suffers from PTSD as a result of his combat experience.
B.
Ewing’s Disability Allegations & Agency Forms
Kenny Ewing submitted a number of forms to the Social Security Administration,
including two Function Reports, a Work History Report, an amended Work History Report,
and a list of Medications (Tr. 182–90, 192–99, 220–30, 259–67, 269). Ewing also testified
at an evidentiary hearing in front of ALJ Janney on July 31, 2012 (Tr. 47–85). His friend,
Ronica Laws, submitted two Third Party Function Reports (Tr. 201–08, 232–39). At that
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time, she had known Ewing for two years and spent about three hours a week with him.
Ms. Laws largely corroborated Ewing’s statements on his disability application.
The
following is a summary of Ewing’s allegations regarding his disability as presented on the
agency forms and at the evidentiary hearing.
Following his discharge from the Army, Ewing had four different jobs within a
15-month span (See Tr. 129). Beginning in April 2010, he worked for an aircraft parts
manufacturer for six months (Tr. 129). According to Ewing, one of the reasons he left that
job was because he had difficulty getting along with his coworkers (Tr. 68, 129, 295). He
then worked at a sanitation company for two months; he claims that he was fired due to his
inability to get along with coworkers (Tr. 129, 295). Next, he worked at a trash removal
company for six months; he left that job because he found another job at an oil company
that had better pay, better hours, and better working conditions (Tr. 68, 129, 324). He
worked at the oil company for approximately two months before he stopped working
altogether on July 18, 2011 due to his impairments (Tr. 129, 175). He listed July 18,
2011 as the onset date of his disability (Tr. 175).
Regarding his back and neck pain, Ewing claims that he is in pain “all the time.” He
described the pain as “burning and crushing,” and stated that it is throughout his legs,
hips, and lower back. His pain gets worse if he sits or stands for too long. Ewing has
tried a number of treatments to relieve his pain, including hot baths, heat packs, pain
medication, muscle relaxers, a TENS unit,2 physical therapy, steroid injections, and nerve
2
TENS stands for Transcutaneous Electrical Nerve Stimulation. It is predominantly used for
acute and chronic nerve related pain conditions. The machine sends stimulating pulses across the
skin and along the nerve strands. The pulses held prevent pain signals from reaching the brain and
also stimulate the production of endorphins, which are natural pain killers. TENS Units for Pain
Relief and Treatment, http://www.tensunits.com (last visited June 9, 2014).
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blocks. None of the treatments have provided any sustained relief.
Ewing said he experiences symptoms related to PTSD on a daily basis. He thinks
one of his primary symptoms is that “[he] get[s] aggravated pretty easy” (Tr. 59). For
example, he has problems getting along with others mainly because the pain makes him
irritable and he has difficulty following and remembering conversations.
He gets
frustrated at home with his fiancée and children which leads to arguments. When there is
an argument, he leaves and goes off by himself; most of the time he goes outside and paces
around the yard or sits on the porch. Despite his difficulty getting along with others, when
asked how well he got along with authority figures, he initially responded “ok,” and later
responded “well” (Tr. 188, 226). Ewing thinks another of his primary PTSD symptoms is
“[he] forget[s] things that [he] shouldn’t forget” (Tr. 59). For example, he has forgotten to
take his child to school between five and ten times. His memory issues are also related to
his traumatic brain injury.
Ewing’s PTSD symptoms get worse when he is around crowds or groups of people.
For example, he avoids going to stores because he gets frustrated very quickly by “all the
people, everything around pretty much” (Tr. 65). He becomes “more watchful, on guard”
(Tr. 65). Ewing also does not go to many family gatherings, except for major holidays like
Thanksgiving and Christmas. When he does go, he tries not to be around any of the people
because the crowd and the noise are difficult for him to handle. Ms. Laws indicated that,
about once a month, Ewing goes to family gatherings or social groups, but he does not
always take part, and sometimes he needs someone to accompany him.
Because of his impairments, Ewing is no longer able to lift, walk, or stand for long
periods of time. When asked how long he can be on his feet, Ewing stated that it “usually
depends on the day” (Tr. 67). He can only walk about 200 feet before needing to stop and
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rest. He can stand for 20 to 30 minutes before he has to sit down. He can sit anywhere
from 20 to 60 minutes before he starts hurting and has to stand up. He cannot lift over 20
pounds.
He has difficulty sleeping and only sleeps two to three hours per night. He’s usually
in so much pain that he cannot fall asleep. After he has managed to fall asleep, he has
nightmares that wake him.
The nightmares happen two or three times a month,
sometimes more.
Ewing also has difficulty concentrating and can only stay focused for “only a couple
minutes” (Tr. 225). Ms. Laws agreed, stating that he can pay attention for only 15 to 30
minutes. Ewing does not finish what he starts because he gets distracted and forgets what
he is doing. For example, there have been times where was driving to his mother’s house,
but forgot where he was going, and passed her house. He’s also driven past his own
house. Ms. Laws also indicated that Ewing has a hard time following conversations, and
he jumps from topic to topic.
Ewing is still able to handle his own personal needs and grooming.
However,
things like bathing, shaving, and getting dressed take him longer than they used to because
of the pain. On his initial application, he said he did not need reminders to take of
personal needs and grooming, but later said he needs a verbal reminder to shave and cut
his hair. He also needs a verbal reminder to take his medication. Since the time of his
disability application, Ewing has taken various pain medications, depression medications,
muscle relaxers, and sleeping pills. He said some of his medications make him drowsy,
dizzy, and unable to focus.
Ewing no longer does yard work; either a neighbor or his landlord takes care of it.
His roommate used to help him with the housework and cooking, and now his fiancée does.
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He will do chores, such as laundry or the dishes, about twice a week. He needs a verbal
reminder to do the chores. He has a lot of difficulty doing laundry, specifically loading and
unloading the machines. He no longer vacuums or sweeps the floors because it is too hard
for him.
He prepares meals a “few times a week,” but only simple things such as
sandwiches or frozen dinners. He goes to the store “every now and then” with his fiancée
even though it is difficult for him (Tr. 64).
He said that he spends most of his day resting. The baby is typically with his
fiancée’s family during the day because she is very active and he cannot keep up with her.
Sometimes he watches television, but he cannot sit through a whole movie because of the
pain. He no longer hunts because it’s too difficult to walk through the woods, through
creeks, climb over logs, etc. He no longer works on cars. He no longer lifts weights or
works out. Aside from going to the store on occasion or going to the doctor, there are no
other places that he goes just to get out of the house.
C.
Medical Records
Ewing received care at VA facilities in Marion, Illinois and Mount Vernon, Illinois
following his discharge from the Army in 2009 until sometime around April 2010 (See Tr.
285–89). There are no medical records from this time period. In or around April 2010,
Ewing relocated to northern Illinois and transferred his care to the VA facility in Hines,
Illinois. The earliest medical records in the transcript are from the Hines VA beginning in
June 2010. Therefore, any information regarding Ewing’s impairments prior to June
2010 is gleaned from later medical records.
1. Back and Neck Pain
Following his fall from the helicopter in April 2007, xrays and an MRI showed Ewing
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had a compression fracture in his lower spine at L1 (Tr. 491). Recent MRIs show the old
fracture as well as degenerative disc disease signal changes at L1-L2 (Tr. 318–20). Recent
MRIs of his cervical spine show multilevel degenerative disc disease changes from C3
through C7; multilevel herniated disc configuration from C2 through C6 which “are
extremely atypical for this patient’s stated chronological age”’ and mild spinal stenosis at
C4-C5 and C5-C6 and moderate stenosis at C6-C7 (Tr. 320–22).
There are hundreds of pages of records in the transcript pertaining to Ewing’s back
and neck. Most of that information is not particularly relevant to the Court’s analysis, and
therefore, a very brief summary will suffice. On January 5, 2011, Momodou Sallah, a
physician’s assistant (“P.A.”) at the Marion VA, performed a compensation and pension
exam (“C&P exam”) to evaluate Ewing’s back and neck injuries for the purpose of
determining veteran’s disability benefits (Tr. 312–22).
He was diagnosed with
degenerative disc disease of the lumbar spine with bilateral lumbar radiculopathy and
degenerative disc disease of the cervical spine. Following the C&P exam, the Department
of Veterans Affairs rated Ewing’s cervical spine impairment as 10% disabling and his
lumbar spine as 10% disabling (Tr. 157–65).
Ewing has sought emergency care six times in approximately three years for back
and/or neck pain.
He has seen a number of doctors including a physiatrist, a pain
management specialist, an orthopedic surgeon, a neurosurgeon, and a rheumatologist.
While Ewing’s MRI scans are not completely normal, no doctor has been able to find a
correlation between the imaging findings, the findings on physical examination, and his
symptoms.
2. Traumatic Brain Injury & Headaches
Ewing suffered several blows to the head while in the Army (See Tr. 596). The
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most significant was the aforementioned incident in April 2007 when he fell from the top of
a helicopter. He lost consciousness and has complained about persistent symptoms since
that fall, including vertigo, tinnitus, headaches, and some memory loss.
Ewing was evaluated for traumatic brain injury in September 2009 at the Marion VA
(See Tr. 597) (showing results from Neurobehavioral Symptom Inventory).
After he
switched his care to the Hines VA, he was evaluated again on June 30, 2010 by Dr. Melanie
Querubin (Tr. 596–601).
Dr. Querubin administered the Neurobehavioral Symptom
Inventory to measure Ewing’s TBI symptoms. Ewing had mild headaches, meaning they
were occasionally present and no medication was needed; he reported that bright lights
triggered his headaches. Ewing also complained about cognitive impairments for the first
time, but indicated that they were not interfering with his work. In particular, he indicated
that he suffered from poor concentration which he rated as mild; he explained that he
“find[s] himself driving past his exit.” He also indicated that he suffered from forgetfulness
which he rated as moderate; he explained that he “forgets day-to-day things.” He also
stated that he had difficulty making decisions, getting organized, and finishing things, and
he rated those symptoms as moderate. Ewing indicated that he was not suffering from any
mental health symptoms at that time.
He also complained of insomnia, which had
significantly worsened since his evaluation at the Marion VA. Finally, Ewing indicated that
the chronic back pain affects him the most. Dr. Querubin noted that Ewing’s back exam
was unremarkable.
On January 5, 2011, Momodou Sallah, a physician’s assistant (“P.A.”) at the Marion
VA, performed a compensation and pension exam (“C&P exam”) to evaluate Ewing’s TBI for
the purpose of determining veteran’s disability benefits (Tr. 298–312). Ewing underwent
a CT scan of his head as part of the C&P exam (Tr. 310–11). The CT scan showed a
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congenital cavum septum pallucidum, but no significant intracranial lesions.
Ewing reported to P.A. Sallah that he had headaches one to two times a week that
lasted for about two to three hours. He rated the pain from the headaches as an eight out
of ten and said that he was unable to function when he had a headache. He had vertigo
symptoms with tinnitus five to six times per week. He suffered from sleep disturbances
and occasional fatigue. He also suffered from memory problems which he thought were
getting worse; he considered his memory impairment moderate.
He also reported
cognitive problems, such as decreased attention, difficulty concentrating, and difficultly
with executive functions. When asked about psychiatric symptoms, Ewing stated that he
had mood swings, anxiety, and depression.
When asked about neurobehavioral
symptoms, he stated that he had irritability and restlessness.
Based on Ewing’s reports and the testing, P.A. Sallah assessed Ewing’s cognitive
impairment and other residuals of the TBI as follows: (1) mild loss of memory,
concentration, or executive functions, with no objective evidence on testing; (2) occasionally
inappropriate social interaction; (3) three or more subjective symptoms that mildly
interfered with his work, such as intermittent dizziness, daily mild to moderate headaches,
tinnitus, frequent insomnia, or hypersensitivity to sound or light; (4) one or more
neurobehavioral effects that occasionally interfered with workplace or social interaction
but did not preclude them, such as irritability, lack of motivation, apathy, lack of empathy,
moodiness, lack of cooperation, or inflexibility.
Ewing was diagnosed with chronic
headaches and mild-moderate memory loss.
Following the C&P exam, the Department of Veterans Affairs rated Ewing’s tinnitus
as 10% disabling, his vertigo as 10% disabling, and the cognitive impairments and other
residual effects of the TBI as 10% disabling (Tr. 157–65).
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In March 2012, Ewing sought emergency care for a headache with visual floaters
(Tr. 515–22). He rated his pain as a 10 out of 10 and said he felt like his “head [was] going
to explode.” He also said his vision gets foggy when he has a headache and “he looked at a
street light and it looked like the whole side of the road was on fire.”
He was
intraveneously given Toradol, Reglan, Benedryl, and Ativan. Ewing reported he felt sleepy
but had no pain, and he was discharged.
3. Post-Traumatic Stress Disorder, Depression, and Anxiety
Ewing had no psychiatric symptoms or treatment before his military service (See,
e.g., Tr. 625). Between his discharge from the Army in 2009 and April 2010, Ewing
received several mental health diagnoses, including anxiety disorder, neurosis, and
post-traumatic stress disorder; he was treated with medication and behavioral therapy
(See Tr. 281, 287–89, 295, 572, 600, 605). There are no medical records from this time
period.
Between April 2010 and October 2010, Ewing sought mental health treatment on at
least two occasions at the Mental Health Clinic at the Hines VA (Tr. 569–78, 622–26). In
August 2010, he reported that he “seems more depressed.”
He also complained of
difficulty sleeping and subsequent low energy, difficulty concentrating, irritability, and loss
of interest and pleasure. He said that the constant pain affects numerous aspects of his
quality of life.3 He was prescribed Citalopram. In September 2010, he reported that he
had not started taking the Citalopram because he was worried about being able to work.
The doctor educated Ewing on Citalopram, continued his prescription, and indicated that
he should be considered for individual psychotherapy.
3
The record states “Effects of primary pain on quality of life: Anxiety, Appetite, Concentration,
Depression, Energy level, Enjoyment of life, Household chores, Mobility, Mood, Physical activity,
Relationship with others, Sleep, Social activities, Work” (Tr. 574).
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In October 2010, Ewing relocated back to southern Illinois and re-established care
at the Marion VA. His first mental health visit was on January 26, 2011 with Dr. Nova
Griffith. Dr. Griffith performed a compensation and pension examination to evaluate
Ewing’s post-traumatic stress disorder for the purpose of determining veteran’s disability
benefits (Tr. 290–98). She noted that Ewing had prior diagnoses for generalized anxiety
disorder and neurosis; however, she felt Ewing was initially misdiagnosed and his original
diagnosis should have been PTSD.
Dr. Griffith found that Ewing’s remote, recent, and immediate memory were
“moderately impaired.” Dr. Griffith noted that Ewing was overall a poor historian, very
slow to answer questions, and appeared to have trouble coming up with answers to nearly
all of the questions asked. Ewing had difficulty falling and staying asleep, irritability or
outbursts of anger, difficulty concentrating, hypervigilance, and an exaggerated startle
response.
Dr. Griffith also found that Ewing had “markedly diminished interest or
participation in significant activities, feeling [sic] of detachment or estrangement from
others, and restricted range of affect.” She said he “lives a very isolated life”—he works
alone on his job, has lost all of the friendships he had before going to Iraq and Afghanistan,
and rarely leaves home except to go to work. Dr. Griffith opined that Ewing’s PTSD causes
problems related to occupational functioning; specifically, Ewing has “poor social
interaction.”
Following the C&P exam, the Department of Veterans Affairs increased the rating for
Ewing’s PTSD from 30% disabling to 50% disabling (Tr. 157–65).
Throughout 2011, Ewing made a number of visits to the specialty behavioral health
clinic at the VA (Tr. 323–26, 328–34).
The results of mental status exams varied,
particularly the results concerning his memory and concentration, and his mood and
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affect.
He was assessed a GAF score of 50 on four occasions (Tr. 332, 485).
By
November 2011, Dr. Victoria Codispoti noted that Ewing did not report many problems
except for pain and he did not present any psychiatric symptoms. He was given a GAF
score of 60. Dr. Codispoti felt that he was stable on the amitriptyline, and she discharged
him from the specialty behavioral health clinic back to primary care (Tr. 481–86).
However, Ewing was referred back to the specialty clinic three months later in
January 2012 due to heightened signs and symptoms of PTSD and depression (Tr. 468–
75). The following month, it was determined that Ewing needed moderate, long-term
therapy for PTSD, TBI, depression, and anxiety (Tr. 524–32).
During the first four
months of 2012, Ewing was assessed a GAF score of 50 on four occasions (Tr. 469, 509,
531, 562).
D.
Determination of the Department of Veterans Affairs
In June 2009, Ewing was medically retired from the Army due to his permanent
disability (Tr. 166). The Army further concluded that his disability was service connected
and he was entitled to 40% disability (Tr. 166, 491–93).
On February 11, 2011, following the three C&P exams detailed in the previous
section, the Department of Veterans Affairs issued a decision amending Ewing’s disability
rating (Tr. 157–65).
Ewing’s post-traumatic stress disorder was increased from 30%
disabling to 50% disabling, effective December 3, 2009.
Ewing’s cervical spine
impairment was increased from 0% disabling to 10% disabling, effective December 3,
2009. Ewing’s lumbar spine impairment remained 10% disabling. Ewing’s tinnitus and
vertigo, which are related to his traumatic brain injury, were evaluated separately from the
brain injury itself. Ewing’s recurrent tinnitus was found to be 10% disabling, which is the
highest evaluation awarded for that condition.
Ewing’s vertigo was found to be 10%
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disabling. The cognitive impairments and other residual effects of the traumatic brain
injury remained 10% disabling. Ewing’s total combined degree of disability is 70%.4
E.
Consultative Examinations & State Agency RFC Assessments
Dr. Adrian Feinerman conducted a physical examination of Ewing in September
2011 at the request of the State of Illinois in connection with Ewing’s application for
disability benefits (Tr. 415–23).
The examination lasted 23 minutes.
Upon physical
examination, Dr. Feinerman noted that Ewing was able to sit, stand, walk, hear, and speak
normally. He was able to lift, carry, and handle objects without difficulty. His range of
motion was within normal limits.
In October 2011, a state agency physician, C.A. Gotway, assessed Ewing’s physical
RFC (Tr. 448–55). Dr. Gotway concluded that Ewing had the residual functional capacity
to perform work at the medium exertional level.
There were no additional postural,
manipulative, visual, communicative, or environmental limitations.
Dr. Harry Deppe conducted a psychological examination of Ewing in September
2011 at the request of the State of Illinois in connection with his application for benefits
(Tr. 425–29). The examination lasted 45 minutes. Dr. Deppe indicated that Ewing had
no difficulty staying on task for the evaluation and his responses were coherent and
relevant. Ewing’s remote memory was good—he was able to recall his own social security
number, his mother’s maiden name, and the names of five presidents.
Ewing’s
intermediate memory was also good—he was able to recall seven digits forward and four
digits in reverse. Dr. Deppe rated Ewing’s ability to relate to others, including fellow
workers and supervisors, as fair to good. Ewing’s ability to understand and follow simple
4
While the decision does not indicate his combined rating, it appears elsewhere in the records (Tr.
804–05), and it can be determined using the Combined Ratings Table at 38 C.F.R. § 4.25.
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directions was intact.
His ability to maintain attention required to perform simple,
repetitive tasks was also intact. His ability to withstand stress and pressures associated
with a day-to-day work activity was rated as fair to good. Dr. Deppe rated Ewing’s overall
prognosis as “fair to good.”
In October 2011, a state agency psychologist, M.W. DiFonso, assessed Ewing’s
mental RFC (Tr. 444–47). With respect to understanding and memory, Dr. DiFonso found
that Ewing was moderately limited in his ability to understand and remember detailed
instructions. As for sustained concentration and persistence, Dr. DiFonso found that
Ewing was moderately limited in his ability to carry out detailed instructions and his ability
to maintain attention and concentration for extended periods of time. With respect to
social interaction, Dr. DiFonso found that Ewing was moderately limited in his ability to
interact appropriately with the general public and his ability to accept instructions and
respond appropriately to criticism from supervisors. Dr. DiFonso translated his findings
into a specific RFC assessment—that Ewing’s “cognitive and attentional skills are intact
and adequate for simple one-two step as well as semi skilled [sic] work tasks.” He further
concluded that Ewing’s “interpersonal skills are moderately limited” while his “adaptive
skills are within normal limits.”
F.
Evidence Not Before the ALJ
The transcript contains approximately 100 pages of medical records that were not
part of the record at the time the ALJ issued his decision (See Tr. 42–46). Specifically,
there are additional records from the orthopedic surgeon from December 2011 to February
2012; there is a mental RFC assessment from Dr. John Lorenz, a psychiatrist whom Ewing
began seeing in October 2012; and there are additional records from the VA from July
2012 to October 2012. These records appear in the transcript at pages 719–814 and were
Page 17 of 31
designated by the Appeals Council as Exhibits 18F, 19F, and 20F. These records were
submitted to the Appeals Council, which considered them in connection with Ewing’s
request to review the ALJ’s unfavorable decision (Tr. 4). Because the Appeals Council
eventually refused Ewing’s request, it is not appropriate for the Court to consider evidence
that was not before the ALJ. “Although technically a part of the administrative record, the
additional evidence submitted to the Appeals Counsel cannot now be used as a basis for a
finding of reversible error.” Rice v. Barnhart, 384 F.3d 363, 366, n.2 (7th Cir. 2004);
Luna v. Shalala, 22 F3d 687, 689 (7th Cir. 1994).
G.
Vocational Expert’s Testimony
Following Ewing’s testimony at the evidentiary hearing on July 31, 2012, a
vocational expert (VE) testified. The ALJ asked the VE a series of hypothetical questions.
The first question required the VE to assume a person who was able to do work at the light
exertional level, with the following limitations:
Moderate difficulty maintaining social functioning;
May have frequent contact with coworkers and supervisors, but no
interaction with the general public;
Should work in a task or object oriented setting as opposed to a service
oriented setting;
Moderate difficulty maintaining sustained concentration, but can
understand, remember, and carry out routine instructions that require
the exercise of little independent judgment or decision making.
(Tr. 80–81). The VE testified that this hypothetical person could not perform any of his
past jobs, but there are unskilled occupations that exist in significant numbers in the local
area that the person could perform, such as bench worker or assembler, packager, or
inventory checker.
For the second hypothetical question, the ALJ asked the VE to assume the same
hypothetical person with a variety of additional, non-exertional limitations, including:
Page 18 of 31
Should work in a setting that has a moderate noise intensity level or
quieter;
Should avoid concentrated exposure to vibration;
Could occasionally balance; and
Should avoid concentrated exposure to hazards, such as moving
machinery, unprotected heights, or operating commercial motor vehicle
equipment
(Tr. 81–82). The VE testified that this hypothetical person would be precluded from
working as a bench assembler and as a packager, but could still work as an inventory
check, as a cleaner, or a marker/labeler.
For the third hypothetical question, the ALJ asked the VE to assume the
hypothetical person had all of the limitations enumerated in questions one and two and
also:
Must be able to sit or stand at the workstation as frequently as every 20
minutes;
Has “more of a marked” difficulty maintaining sustained concentration,
persistence, or pace and would be off-task up to 10% of the workday
consistently and would require supervisory intervention to get back on
task
(Tr. 82–83).
The VE testified that if the hypothetical person had either one of these
additional limitations then he would be precluded from work at the light, unskilled level as
well as the sedentary, unskilled level.
THE DECISION OF THE ALJ
ALJ Janney followed the five-step analytical framework outlined in 20 C.F.R. §
404.1520 (See Tr. 24–41). At step one, the ALJ determined that Ewing had not engaged
in substantial gainful activity since July 18, 2011, the alleged onset date. The ALJ also
found that Ewing is insured for DIB through December 31, 2016. At step two, the ALJ
found that Ewing had the severe impairments of disorders of the spine, tinnitus, vertigo,
headaches, status post-traumatic brain injury, depression, and post-traumatic stress
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disorder. At step three, the ALJ determined that Ewing’s impairments did not meet or
equal a listed impairment.
The ALJ then determined that Ewing had the residual functional capacity to
perform work at the light exertional level, with some limitations. At steps four and five,
based on the testimony of a vocational expert, the ALJ concluded that Ewing could not do
his past work, but he could perform other jobs which exist in significant numbers in the
national and local economy. As a result, Ewing was not disabled.
ANALYSIS
All of the issues raised by Ewing relate to the ALJ’s assessment of his mental and
physical residual functional capacity. A claimant’s RFC is “the most [the claimant] can
still do despite [his or her] limitations.” 20 C.F.R. § 404.1545(a)(1). In other words, RFC
is the claimant’s “maximum remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis,” which means eight hours a day for five
days a week, or an equivalent work schedule. Social Security Ruling 96-8P, 1996 WL
374184, at *2 (July 2, 1996) (“S.S.R. 96-8P”); Pepper v. Colvin, 712 F.3d 351, 362 (7th
Cir. 2013). In assessing a claimant’s RFC, the ALJ must consider all of the evidence in the
record, and provide a “narrative discussion” that cites to specific evidence and describes
how that evidence supports the assessment. S.S.R. 96-8, at *5, 7.
Within each of the broad issues raised by Ewing, he makes a number of
sub-arguments based on a variety of errors allegedly made by the ALJ. After carefully
reviewing each of Ewing’s arguments and the Commissioner’s responses, the Court has
decided in the interest of judicial economy to address only the most clear-cut errors.
Together these errors serve to undermine the ALJ’s determination that Ewing was not
disabled and necessitate remand.
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A.
Social Functioning
One of Ewing’s strongest arguments is that the ALJ failed to adequately analyze his
limitations in social functioning. Social functioning refers to an individual’s capacity to
interact independently, appropriately, effectively, and on a sustained basis with other
individuals.
20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.00C2. In a work situation, social
functioning “may involve interactions with the public, responding appropriately to persons
in authority (e.g., supervisors), or cooperative behaviors involving coworkers.” Id. “Even
a moderate limitation on responding appropriately to supervisors [or coworkers] may
undermine seriously a claimant's ability to work.” O'Connor-Spinner v. Astrue, 627 F.3d
614, 621 (7th Cir. 2010) (citing 28 C.F.R. § 404.1545(c)).
Here, at step three of his analysis, the ALJ found that Ewing had moderate
difficulties in social functioning (Tr. 29). In determining Ewing’s RFC, the ALJ concluded
that Ewing “should work in a setting where interaction is not the primary focus of job
duties” (Tr. 37). Accordingly, the ALJ restricted Ewing from working with the general
public, but determined that he could have frequent contact with supervisors and coworkers
(Tr. 31, 37). Ewing argues that the ALJ failed to explain why his difficulties in social
functioning adversely affected only his ability to interact with the general public, but not his
ability to interact with coworkers and supervisors. The Court agrees.
With respect to Ewing’s ability to interact with supervisors, the ALJ mentioned
Ewing’s statement “that he gets along okay with authority figures” and Dr. Deppe’s opinion
that Ewing’s ability to relate to others, including supervisors, was “fair to good” (Tr. 29, 38).
On the other hand, the ALJ also mentioned Dr. DiFonso’s opinion that Ewing was
moderately limited in his “ability to accept instructions and respond appropriately to
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criticism from supervisors” (Tr. 36).
In the face of this conflicting evidence, it was
incumbent upon the ALJ to expressly indicate which evidence he credited and which he
rejected, and explain his reasons for doing so. Golembiewski v. Barnhart, 322 F.3d 912,
917 (7th Cir. 2003); S.S.R. 96-8P, at *7 (instructing that the RFC assessment must
“[i]nclude a resolution of any inconsistencies in the evidence as a whole.”)
Although not expressly indicated, it appears to the Court that the ALJ rejected Dr.
DiFonso’s opinion based on the fact that the ALJ did not include a limitation in dealing with
supervisors in the hypothetical question that he posed to the VE, or incorporate a
corresponding restriction in the RFC assessment. If the ALJ had credited Dr. DiFonso’s
opinion that Ewing was moderately limited in responding appropriately to supervisors,
then Ewing may have been rendered unemployable. See O'Connor-Spinner, 627 F.3d at
621; 28 C.F.R. § 404.1545(c). However, the ALJ provided absolutely no explanation as to
why he did not credit Dr. DiFonso’s finding or why it was outweighed by other evidence.
See O’Connor-Spinner, 627 F.3d at 621 (“An ALJ must explain why he does not credit
evidence that would support strongly a claim of disability, or why he concludes that such
evidence is outweighed by other evidence.”); S.S.R. 96–8P, at *7 (“If the RFC assessment
conflicts with an opinion from a medical source, the adjudicator must explain why the
opinion was not adopted.”)
The ALJ’s failure to analyze this finding is particularly troublesome because it
shows that the ALJ selectively credited only the portions of Dr. DiFonso’s assessment that
supported his ultimate conclusion and disregarded the portions that did not.5 Campbell
5
The ALJ adopted three of Dr. DiFonso’s four findings regarding Ewing’s social limitations,
including that Ewing was moderately limited in overall social functioning and dealing with the
public, but not significantly limited in dealing with coworkers (See Tr. 29, 31, 445, 446). The only
finding that the ALJ rejected was that Ewing was moderately limited in dealing with supervisors (See
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v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010) (“An ALJ may not selectively discuss portions
of a physician’s report that support a finding of non-disability while ignoring other portions
that suggest a disability.”) (citing Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009));
Myles, 582 F.3d at 678 (“It is not enough for the ALJ to address mere portions of a doctor’s
report . . . .”) (internal citations omitted).
Turning next to the ALJ’s conclusion that Ewing can have frequent contact with
coworkers, the Court also finds this conclusion is unsustainable. The ALJ mentioned Dr.
Deppe’s opinion that Ewing’s ability to relate to fellow workers was “fair to good,” and the
Court’s own review of the record shows that Dr. DiFonso had a similar opinion (Tr. 38,
428, 445). 6
That being said, the ALJ never addressed evidence that contradicts his
assessment that Ewing can have frequent contact with coworkers. In particular, Ewing
stated, and medical records reflect, that he left one job voluntarily and was fired from
another because he had difficulty getting along with his coworkers (Tr. 68, 296). Ewing
also indicated that he felt it was best when he worked alone (Tr. 297). Dr. Nova Griffith
opined that Ewing had a problem with occupational functioning due to “poor social
interaction” and P.A. Sallah indicated that Ewing’s social interaction was “occasionally
inappropriate” (Tr. 296, 307). While the ALJ need not discuss every piece of evidence in
the record, the ALJ may not ignore an entire line of evidence that is contrary to his
findings.
Golembiewski v. Barnhart, 322 F.3d 912, 917 (7th Cir. 2003) (internal
citations omitted).
The Commissioner defends the RFC assessment by pointing out that at step 3 of his
analysis, the ALJ concluded that “the evidence indicates that claimant is able to interact
Tr. 31, 445).
6
Dr. DiFonso opined that Ewing was not significantly limited in his “ability to get along with
coworkers or peers without distracting them or exhibiting behavioral extremes” (Tr. 445).
Page 23 of 31
independently, appropriately, effectively, and on a sustained basis with other individuals”
(Doc. 36, p. 6; Tr. 29). However, the ALJ did not describe how the evidence supported
that conclusion, and it is not readily apparent to the Court. The ALJ recited evidence that
Ewing avoids most family functions except for Christmas because he does not like to be
around people; that his children and his fiancée provide him with enough of a social
network to mitigate the risk of suicide; and that he currently has friends when there have
been other times since he retired from the Army that he had none. It seems that rational
minds would have a difficult time finding this evidence supported the conclusion that
Ewing is able to “interact independently, appropriately, effectively, and on a sustained basis
with other individuals.” Simply put, the ALJ’s conclusion about Ewing’s social limitations
comes across as illogical, and without an explanation, the Court certainly cannot trace the
path of the ALJ's reasoning from the evidence to the conclusion.
The Commissioner also points to the ALJ’s finding that Ewing’s “ability to maintain
social interaction was not entirely eroded” because he was still able to establish rapport
with providers and able to shop in stores (Doc. 30, p. 6; Tr. 37). Again, rational minds
would find it difficult to navigate the jump between that finding and the RFC assessment.
While it may be entirely true that Ewing’s ability to function socially is not “entirely eroded,”
Ewing does not have to be completely incapable of interacting with anyone and everyone in
order to be unemployable.
Second, the fact that Ewing established a treatment
relationship with his doctors and went to the store on occasion does not logically translate
into an ability to frequently interact with supervisors and coworkers for forty hours a week.
In sum, because the ALJ failed to analyze relevant evidence in the record or provide
a sufficient explanation of why he excluded evidence that did not support his decision, the
Court cannot uphold the ALJ's RFC assessment as it pertains to Ewing’s ability to interact
Page 24 of 31
with coworkers and supervisors. On remand, the ALJ must indicate whether he credits or
rejects the evidence that Ewing had difficulty dealing with supervisors and coworkers. If
the ALJ credits the evidence, he must account for it in an updated RFC and hypothetical to
the VE. If the ALJ rejects the evidence, he must give reasons for doing so.
B.
Concentration, Persistence, or Pace
Another of Ewing’s strongest arguments is his claim that the ALJ failed to
adequately
analyze
his
limitations
in
concentration,
persistence,
and
pace.
“Concentration, persistence, or pace refers to the ability to sustain focused attention and
concentration sufficiently long to permit the timely and appropriate completion of tasks
commonly found in work settings.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 12.00 C 3.
At step three of his analysis, the ALJ concluded that Ewing had moderate difficulties
in concentration, persistence, and pace (Tr. 30). These difficulties were due to Ewing’s
“slow processing time,” impaired memory, and impaired concentration (Tr. 32, 37). In
assessing the impact of these symptoms on Ewing’s ability to work, the ALJ determined
that Ewing’s memory and concentration deficits were not as severe as he claimed (See Tr.
32, 33). The ALJ accounted for Ewing’s symptoms by limiting him to simple routine types
of tasks that require little independent judgment or decision-making for two-hour work
segments (Tr. 31).
Ewing first claims that the ALJ erred in determining that his memory impairment
was not as severe as he claimed. This was a credibility determination. The ALJ must
support a credibility determination with substantial evidence and must explain his
determination in a way that allows a court to establish that it was reached in a rational
manner and logically based on specific findings and evidence.
McKinzey v. Astrue, 641
F.3d 884, 890 (7th Cir. 2011). On judicial review, “[a]n ALJ’s credibility determination is
Page 25 of 31
reviewed with deference” and will be reversed “only if it is so lacking in explanation or
support that [it is] ‘patently wrong.’” Simila v. Astrue, 573 F.3d 503, 517 (7th Cir. 2009)
(internal quotations omitted); Sims v. Barnhart, 442 F.3d 536, 538 (7th Cir. 2006) (“Only
if the trier of fact grounds his credibility finding in an observation or argument that is
unreasonable or unsupported . . . can the finding be reversed.”)
Here, the ALJ gave three reasons for finding that Ewing’s testimony regarding the
severity of his memory problem was not credible. The first reason the ALJ gave was that
Ewing did not take any medication for his impaired memory.
To the extent Ewing’s
memory difficulties were caused by PTSD, he was taking medication and undergoing
behavioral therapy to treat his PTSD. There is no evidence that any doctor recommended
any further treatment to specifically address his impaired memory. Additionally, to the
extent Ewing’s memory impairment was caused by his traumatic brain injury, nothing in
the record suggests the existence or availability of a medication that would help improve or
stabilize memory loss related to such an injury. Therefore, the ALJ’s intimation that the
absence of medication meant Ewing’s condition was less serious is wholly unsupported by
any medical authority in the record. The ALJ impermissibly “played doctor” and reached
his own independent medical determination regarding medication. See Myles v. Astrue,
582 F.3d 672, 677 (7th Cir. 2009) (reversing because ALJ drew his own inferences from
medical record without evidentiary support).
The third reason the ALJ gave for the adverse credibility determination—that a CT
scan of Ewing’s head did not show any masses or lesions—is also unsustainable for the
same reason. There is nothing in the record that indicates a person with Ewing’s alleged
memory problems would be expected to have brain masses or lesions, and it seems
particularly unlikely if the memory problems were due to PTSD. There is also nothing in
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the record that indicates the absence of brain masses or lesions means that Ewing’s
memory problem was not serious. Again, the ALJ drew his own inferences from the
medical record without evidentiary support.
The second reason the ALJ gave was that Ewing did not report significant memory
lapses to his doctors. However, the ALJ accidentally overlooked or intentionally ignored
at least two specific complaints that Ewing made to his doctors. In particular, in January
2012, Ewing told Barbara Bridges that he was late for appointments and forgot to pick his
daughter up from school (Tr. 531). In February 2012, he told Deborah Alcorn that he
forgets appointments and blames his fiancée for not telling him (Tr. 469). Therefore, the
second reason for the adverse credibility determination is contrary to the evidence and
cannot be sustained.
In sum, none of the ALJ's reasons for his adverse credibility determination are
sustainable, and therefore neither is the credibility determination.
Consequently, the
Court cannot meaningfully review the RFC assessment that is based in part on the ALJ’s
flawed credibility determination. On remand, the ALJ must reconsider the credibility
determination in light of the evidence that is actually in the record.
That being said, even if the ALJ’s credibility determination was sustainable, the RFC
assessment is still fatally flawed because there is a complete lack of evidence and analysis
supporting the determination that Ewing could stay focused for two hours at a time. In
fact, the ALJ included the two-hour restriction in the summary of the RFC assessment (Tr.
31), but never mentioned it again (See Tr. 24–41).
In an attempt to save the RFC assessment, the Commissioner argues that it is
supported by the opinions of Dr. Deppe and Dr. DiFonso (Doc. 36, pp. 7–8). It is true that
both doctors opined that Ewing’s attention span was adequate to complete simple tasks.
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However, neither doctor indicated that he could stick with those tasks for two hours at a
time (Tr. 428, 446). See O'Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th Cir. 2010)
(“The ability to stick with a given task over a sustained period is not the same as the ability
to learn how to do tasks of a given complexity.”); Walters v. Astrue, 444 F. App'x 913, 918
(7th Cir. 2011) (noting that an individual with an attention span that is “adequate to attend
to a simple work routine” does not necessarily have "the ability to concentrate on that
routine for very long”); 20 C.F.R. Pt. 404, Subpt. P, App. 1 12.00 C 3 (explaining that an
individual able to complete a variety of simple tasks may still have limitations in
concentration, persistence, or pace because they need extra supervision or assistance, their
work is below quality and accuracy standards, or they are unable to work without
unreasonable rest periods, undue interruptions, or undue distractions).
The only thing in the ALJ’s decision that could possibly be considered as evidence
supporting the two-hour restriction is the ALJ’s finding that “[d]uring the mental status
examination on September 21, 2011, the claimant displayed no difficulty staying on task”
(Tr. 30). However, the ALJ failed to describe how Ewing’s ability to answer Dr. Deppe’s
questions for 45 minutes during a structured, interactive psychological examination
translates into an ability to maintain focus in a work setting for twice as long without any
supervision or prompting to bring him back to task. Simply put, there is no evidence or
analysis the Court can see supporting the two-hour restriction.
Furthermore, the two-hour restriction does not sufficiently address the amount of
lost work time Ewing could be expected to experience due to his moderate limitation in
concentration, persistence, or pace. In other words, even if Ewing could stay focused for a
two-hour interval, he might still lose 10% of the workday taking rest breaks or becoming
distracted between intervals. The VE testified that f Ewing was off-task for as little as 10%
Page 28 of 31
of the workday—or a total of 48 minutes—he would be unemployable (Tr. 82–83). On
remand, the ALJ should be sure to adequately address how Ewing’s limitation in
concentration, persistence, or pace translates into lost work time.
In conclusion, because the RFC assessment is based in part on the ALJ’s flawed
credibility determination and unsupported by evidence in the record, it cannot be
sustained.
C.
Headaches
At step two of his analysis, the ALJ concluded that Ewing’s headaches were a severe
impairment (Tr. 25, 26). In assessing the impact of Ewing’s headaches on his ability to
work, the ALJ determined that they were not as frequent or intense as Ewing claimed (See
Tr. 34, 36). The ALJ accommodated Ewing’s headaches by restricting him to a work
environment with a “moderate noise intensity level or quieter” and without concentrated
exposure to vibration (Tr. 31, 32, 38).
Ewing argues that the ALJ improperly rejected his allegations regarding the
frequency and intensity of his headaches. This was another credibility determination.
The only reason the ALJ gave for discrediting Ewing’s claims was that “while [Ewing]
reported headaches to his providers, he did not describe to them the frequency or intensity
of pain alleged at the hearing” (Tr. 34). This reason appears to be completely rational on
its face, however, minimal inspection reveals that it is utterly meaningless. The most
glaring problem is that Ewing never testified about his headaches at the hearing. The
other problem is that the ALJ did not indicate which medical records he was referencing,
and the Court is unaware of any records suggesting that Ewing reported headaches to his
doctors that were infrequent and/or relatively mild. For example, in January 2011, Ewing
reported to a physician at the VA that he had one to two headaches a week, they lasted
Page 29 of 31
about two to three hours, his pain was an 8 out of 10, and he was unable to function (Tr.
301, 304). In March 2011, Ewing sought emergency care for a headache and reported that
his headaches were increasing in frequency and severity, and impaired his vision (Tr. 517,
518). Additionally, in September 2011, Ewing complained of “frequent headaches” to Dr.
Feinerman (Tr. 417).
For these reasons, the Court cannot conclude that the ALJ’s credibility
determination is rational and logically based on specific findings and the evidence.
Consequently, it is not clear that in assessing Ewing’s RFC and posing hypothetical
questions to the VE, the ALJ fully and accurately accounted for all of the limitations caused
by his headaches and supported by medical evidence in the record.
CONCLUSION
Because of the ALJ’s errors in evaluating Ewing’s credibility and assessing his
residual functional capacity, this case must be remanded. The Court wishes to stress that
this Memorandum and Order should not be construed as an indication that the Court
believes that Ewing is disabled or that he should be awarded benefits. On the contrary,
the Court has not formed any opinions in that regard, and leaves those issues to be
determined by the Commissioner after further proceedings.
The Commissioner’s final decision denying Kenny Ewing’s application for social
security disability benefits and supplemental security income 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 Kenny Ewing.
Page 30 of 31
IT IS SO ORDERED.
DATE:
June 10, 2014
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE
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