Bryant v. Commissioner of Social Security

Filing 29

MEMORANDUM AND OPINION. The final order of the Commissioner of Social Security 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 4/17/2014. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
THOMAS J. BRYANT,

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Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Defendant.

Civil No.

13-cv-309-CJP 1

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Thomas J. Bryant 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).
Procedural History
Plaintiff applied for DIB in August, 2009, and for SSI in October, 20009. In
both applications, he alleged disability beginning on July 30, 2009.

(Tr. 21).

After holding an evidentiary hearing, Administrative Law Judge (ALJ) William L.
Hafer denied the applications in a decision dated January 31, 2012. (Tr. 21-31).
Plaintiff’s request for review was denied by the Appeals Council, and the January

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. 23.

1

31, 2012, decision became the final agency decision. (Tr. 1).
Plaintiff has exhausted his administrative remedies and has filed a timely
complaint in this court.
Issues Raised by Plaintiff
Plaintiff raises the following issues:
1.

The ALJ erred in not giving greater weight to the opinions of his
treating orthopedic surgeon, Dr. Kovalsky.

2.

The ALJ’s assessment of plaintiff’s residual functional capacity was
erroneous in that the ALJ concluded that plaintiff could occasionally
lift 20 pounds and the ALJ failed to account for Dr. Kovalsky’s opinion
on ability to balance and the side effects of plaintiff’s medications.

3.

The credibility determination was erroneous.
Applicable Legal 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
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.

2

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). “Substantial gainful activity” is work activity that involves doing
significant physical or mental activities, and that is done for pay or profit. 20
C.F.R. §§ 404.1572.
Social Security regulations set forth a sequential five-step inquiry to
determine whether a claimant is disabled. The Seventh Circuit Court of Appeals
has explained this process as follows:
The first step considers whether the applicant is engaging in
substantial gainful activity. The second step evaluates whether an
alleged physical or mental impairment is severe, medically
determinable, and meets a durational requirement. The third step
compares the impairment to a list of impairments that are considered
conclusively disabling. If the impairment meets or equals one of the
listed impairments, then the applicant is considered disabled; if the
impairment does not meet or equal a listed impairment, then the
evaluation continues. The fourth step assesses an applicant's residual
functional capacity (RFC) and ability to engage in past relevant work. If
an applicant can engage in past relevant work, he is not disabled. The
fifth step assesses the applicant's RFC, as well as his age, education,
and work experience to determine whether the applicant can engage in
other work. If the applicant can engage in other work, he is not
disabled.
Weatherbee v. Astrue, 649 F.3d 565, 568-569 (7th Cir. 2011).
Stated another way, it must be determined: (1) whether the claimant is
presently unemployed; (2) whether the claimant has an impairment or combination
of impairments that is serious; (3) whether the impairments meet or equal one of
the listed impairments acknowledged to be conclusively disabling; (4) whether the
3

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. 20 C.F.R. §§ 404.1520; Simila v. Astrue, 573 F.3d 503, 512-513
(7th Cir. 2009); Schroeter v. Sullivan, 977 F.2d 391, 393 (7th Cir. 1992).
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 does not have a listed impairment at step three, and cannot
perform his or her past work (step four), the burden shifts to the Secretary at step
five to show that the claimant can perform some other job. Rhoderick v. Heckler,
737 F.2d 714, 715 (7th Cir. 1984). See also, Zurawski v. Halter, 245 F.3d
881, 886 (7th Cir. 2001)(Under the five-step evaluation, an “affirmative answer
leads either to the next step, or, on Steps 3 and 5, to a finding that the claimant is
disabled…. If a claimant reaches step 5, the burden shifts to the ALJ to establish
that the claimant is capable of performing work in the national economy.”).
This Court reviews the Commissioner’s decision to ensure that the decision
is supported by substantial evidence and that no mistakes of law were made. It is
important to understand that the scope of judicial review 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, this Court must
determine not whether Mr. Bryant was, in fact, disabled, but whether the ALJ’s
findings were supported by substantial evidence and whether any errors of law were
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made. See, Books v. Chater, 91 F.3d 972, 977-78 (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, i.e., “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 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). 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
determined that Mr. Bryant had not been engaged in substantial gainful activity
since the alleged onset date. The ALJ found that plaintiff had severe impairments
of degenerative disc disease of the lumbar spine with L5-S1 fusion and sciatica, and
that his impairments do not meet or equal a listed impairment.
ALJ Hafer concluded that Mr. Bryant had the residual functional capacity to
perform work at the sedentary exertional level, with limitations. 3

3

The ALJ stated that he found that plaintiff was limited to sedentary work, but he then stated that plaintiff could lift 10

5

Based on the testimony of a vocational expert (VE), he determined that
plaintiff could not do his past work, but he could perform other jobs which exist in
significant numbers in the national and local economy. (Tr. 21-31).
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 plaintiff.
1.

Prior Decision
Mr. Bryant initially applied for disability benefits in July, 2006.

In a

decision dated August 3, 2009, an ALJ found that Mr. Bryant was disabled from
June

15, 2005, through

May 8, 2008.

His

disability resulted

from

post-laminectomy and post-fusion syndrome. He underwent a laminectomy and
fusion at L5-S1 in August, 2005.

His back pain persisted, and Dr. Kovalsky

recommended surgical implantation of a dorsal column stimulator.

This was

done in August, 2007. The ALJ concluded that Mr. Bryant experienced medical
improvement such that, as of May 9, 2008, he was able to do work at the sedentary
exertional level, limited to no repetitive bending, lifting or twisting. (Tr. 64-79).
2.

Workers’ Compensation Claim
Plaintiff made a workers’ compensation claim for a back injury which

occurred on December 1, 2004. The claim was settled in December, 2008, for a
pounds frequently and 20 pounds occasionally, which are above the lifting limits of sedentary work. However, as the
hypothetical question posed to the VE assumed sedentary work, this discrepancy is not significant.

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total of $180,000.00 (Tr. 135-138).
3.

Agency Forms
Plaintiff was born in September, 1962, and was 47 years old on the alleged

onset date. (Tr. 158). He was insured for DIB through December 31, 2013. (Tr.
158). Defendant acknowledges that the ALJ mistakenly found that he was insured
for DIB only through June 30, 2011. See, Doc. 26, p. 1 n. 1.
Mr. Bryant said he was unable to work because he had a fused back with
screws and rods and a spinal stimulator, and suffered from sciatica. He said he
could only lift 10 pounds occasionally, with no repetitive bending, lifting or twisting,
and was limited to 2 hours of standing/walking a day. (Tr. 162). These were
restrictions placed on him by his doctor in October, 2009. (Tr. 182).
He had worked in the past as a builder in a boat factory, a carpenter, and a
laborer. (Tr. 163).
In April. 2010, Mr. Bryant submitted a Function Report in which he said that
he was able to do very little. He lived with his wife and children. He said that he
could only sleep for about 2 hours at a time. His wife and children did most of the
house and yard work. He went shopping with his wife about twice a month. He
could not sit or stand for very long, He had back pain, numbness in his leg and
muscle spasms in his back. He could walk only 100 yards. Reaching overhead
caused the battery in his stimulator to go off and shock him. He had to take rest
periods during the day because he did not sleep well at night. (Tr. 207-220).
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4.

Evidentiary Hearing
Plaintiff was represented by counsel at the hearing on October 14, 2011.

(Tr. 38).
Plaintiff was six feet tall and weighed about 200 pounds. (Tr. 42).
Mr. Bryant testified that the nerve stimulator was implanted in 2007. It did
not work. He had an appointment with Dr. Kovalsky to do a procedure to deaden
his sciatic nerve. (Tr. 43).

He said that the wires that come out of the stimulator

were between his shoulder blades, and, when he raised his hands or reached out to
grab something, “it makes the stimulator shock you like touching an electric fence.”
(Tr. 43-44). He turned the stimulator off at night because he could not lay flat with
it on. (Tr. 43-44). He talked to the Medtronic people who came to his doctor’s
office to reprogram the stimulator, and they said “it’s just normal that . . . .” (Tr.
51-52).
He could sit for 45 minutes to an hour if he did not take any pain medication.
If he took his medication, he could sit for about 3 hours. He took Norco, Lyrica
and Flexeril. He only took Lyrica and Flexeril at night because they made him
drowsy. (Tr. 45).
Dr. Kovalsky prescribed a cane in May, 2011, after plaintiff fell. Plaintiff
testified that he always used a cane, even in the house. (Tr. 47-48).
Mr. Bryant testified that he did not do much. He went to his children’s ball
games, but he sat in his car, and not in the bleachers. (Tr. 49).
At one point, plaintiff asked Dr. Kovalsky to increase his weight limit to 50
8

pounds so he could try to go back to work at the boat factory. He “tried to work
and couldn’t do it.” (Tr. 54).
Plaintiff testified that he had numbness down his right leg. (Tr. 54-55).
Bending from the waist, twisting and reaching caused him pain where the hardware
was located. (Tr. 57). After he took his medication, he slept in a recliner for an
hour to an hour and a half. (Tr. 57-58).
A vocational expert (VE) also testified. The ALJ asked the VE to assume a
person who was able to frequently lift 5 pounds and occasionally lift 10 pounds,
with the following limitations:
•

Able to sit for 6 hours total, with the opportunity to stand for 2 to 3
minutes after each hour of sitting;

•

Limited to a total of 2 hours of standing/walking per day;

•

Only occasional stooping, kneeling, crouching, crawling and climbing
stairs;

•

No climbing of ladders, ropes or scaffolding;

•

No work at unprotected heights or around dangerous machinery.

(Tr. 59).
The VE testified that this hypothetical person could do jobs which exist in
significant numbers, such as sedentary hand packer and production work
assembler. (Tr. 59-60). The person could still do these jobs if he required a
cane to walk. However, if he were limited to only occasional handling, fingering
and feeling objects, all unskilled sedentary work would be precluded. (Tr. 60).
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If he were limited to 4 hours of sitting, 2 hours of standing and 2 hours of walking
per day, he would be unable to perform any unskilled sedentary jobs. (Tr. 60-61).
5.

Medical Records
After Mr. Bryant hurt his back at work, he underwent fusion surgery. The

surgery was not done by Dr. Kovalsky. In 2007, Dr. Kovalsky implanted a dorsal
column stimulator. In May, 2009, Dr. Kovalsky described the prior surgery as
“failed lumbar interbody surgery with residual radicular right leg pain.”

Dr.

Kovalsky did not feel that he was a candidate for revision of surgery. He noted that
the stimulator was working, but was not completely relieving his right leg pain.
Mr. Bryant had attempted to return to his job at a boat factory, but the repetitive
standing, walking and bending aggravated his symptoms.

Dr. Kovalsky

encouraged him to pursue some kind of job training so that he could “use his brain
and not have to do physical activity.” (Tr. 463).
In October, 2009, plaintiff reported to Dr. Kovalsky that the dorsal column
stimulator was not working as well as it had been, and his symptoms had
significantly changed in the past 2 months. He was having increased lower back
spasms and pain in his right leg.

He had “problems lifting things out of the

refrigerator.” Standing and walking for more than an hour caused him “significant
symptomatology.” A Medtronic representative had tried to adjust the stimulator,
but he was not able to reprogram it to give Mr. Bryant any better results. On exam,
he had mildly positive straight leg raising on the right.

He was grossly intact

neurologically and had no local pain in his incisions. X-rays showed the paddle
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lead of the stimulator to be in position. Dr. Kovalsky felt there was nothing he
could do to help Mr. Bryant. He gave him new restrictions of 10 pounds maximum
for occasional lifting, and only sedentary work with no repetitive bending, lifting or
twisting, and no standing or walking for more than 2 hours. He noted that plaintiff
had no insurance, and they were going to try to keep his office visits to a minimum.
(Tr. 478).
In December 2009, Mr. Bryant called Kr. Kovalsky’s office and asked for a
note with his current restrictions, except with “sedentary duty removed,” to help
him get disability. (Tr. 479).
In June, 2010, Mr. Bryant complained of increased symptoms in his right leg
and numbness in his right thigh. On exam, he had possible decreased sensation to
light touch in the thigh. He was neurovascularly intact with normal strength, and
normal sensation in the right foot. Dr. Kovalsky ordered a CT scan. (Tr. 500).
Plaintiff returned to Dr. Kovalsky in August, 2010. The doctor noted that
the CT scan showed well-positioned pedicle screws and a solid fusion at L5-S1,
with no disc abnormalities above L5. The L5 and S1 nerve roots did not appear to
be compressed. Dr. Kovalsky concluded that he had “no new problems.” He
noted that the dorsal stimulator was not working as well as it had been, and
attempts to reprogram it had not helped. Dr. Kovalsky had nothing else to offer
him, except to manage his pain.

He was to continue on a 10 pound lifting

restriction. (Tr. 498).
In October, 2010, Dr. Kovalsky increased his Norco dosage and continued
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him on Flexeril. (Tr. 496).
Mr. Bryant was seen by a physician’s assistant in Dr. Kovalsky’s office in May
of 2011. He was still having the same problems. On exam, he had mild pain to
palpation from L3 to L5. He had no pain in his SI joints or buttocks. Straight leg
raising was positive on the right. He reported no side effects from his medications.
He was continued on the same medications. (Tr. 512).
Mr. Bryant was seen by Dr. Kovalsky in July, 2011. He reported that he had
increased right buttock pain, numbness and tingling in his calf, and swelling in his
right calf. The tingling in his foot was increasing and he was having pain from his
heel to his buttocks. He had tried working part-time with a farmer harvesting
wheat. He was driving the truck, but was only able to sit for 30 or 40 minutes. He
was only able to sit for 30 minutes in the bleachers at his kids’ ballgames. On
exam, straight leg raising was positive on the right. His right calf was 1 and ½ cm
larger than the left.

He had mildly positive bowstring test on the right.

Dr.

Kovalsky felt he had a mild increase in his radicular leg pain, and there may be a
minor element of reflex sympathetic dysfunction causing abnormal vascular return.
He added Lyrica to his current Vicodin and Flexeril. Dr. Kovalsky again noted he
had no insurance. (Tr. 518).
Dr. Kovalsky filled out a work restriction slip on July 8, 2011, indicating
plaintiff could lift 10 pounds maximum, with no bending, lifting, or twisting, and no
more than 2 hours of standing/walking. (Tr. 520).
Mr. Bryant returned to Dr. Kovalsky in October, 2011, with increased right
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leg pain and intermittent swelling and burning sensation. The clinical impression
was mild reflex sympathetic dysfunction or dystrophy. He had gotten on Medicaid.
Dr. Kovalsky referred him for a lumbar sympathetic block. (Tr. 533).
A lumbar sympathetic block was performed by Dr. Michael Templer on
October 17, 2011.

(Tr. 524).

A few days later, Dr. Templer noted that the

injection did not relieve plaintiff’s pain at all, and he had nothing further to offer
him. (Tr. 521).
6.

Dr. Kovalsky’s Opinion
In November, 2010, Dr. Kovalsky filled out a form submitted to him by the

agency in which he assessed Mr. Bryant’s ability to do a number of work-related
activities. He opined that plaintiff could occasionally lift 10 pounds, sit for a total
of 6 hours, and stand/walk for a total of 2 hours. He must be able to shift position
at will, and would require 1 or 2 unscheduled breaks a day. He was limited to only
occasional overhead reaching and push/pull on both sides, and to only frequent
reaching in all directions. Dr. Kovalsky wrote that “reaching overhead or pushing
+ pulling will aggravate low back pain.” He could never climb ladders or scaffolds,
balance, kneel, crouch or crawl, and could only occasionally climb stairs and
ramps and stoop. (Tr. 505-510).
7.

Consultative Examination
There were no consultative physical examinations.

8.

State Agency RFC Assessments
13

Based upon a review of the medical records, a state agency physician rated
his physical RFC in January, 2010.

She opined that plaintiff could sedentary

work (occasional lifting of 10 pounds, frequent lifting of less than 10 pounds,
standing/walking for a least 2 hours a day, sitting for 6 hours a day), with postural
limitations, but no limitations in reaching, handling, fingering or feeling.

(Tr.

481-488).
9.

Records Not Before the ALJ
After the ALJ issued his decision, plaintiff submitted additional medical

records to the Appeals Council in connection with his request for review. See, AC
Exhibits List, Tr. 5. Thus, the medical records at Tr. 535-602, designated by the
Appeals Council as Exhibits 16F and 17F, were not before the ALJ.
The medical records at Tr. 535-602 cannot be considered by this Court in
determining whether the ALJ’s decision was supported by substantial evidence.
Records “submitted for the first time to the Appeals Council, though technically a
part of the administrative record, cannot be used as a basis for a finding of
reversible error.” Luna v. Shalala, 22 F.3d 687, 689 (7th Cir. 1994). See also,
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
The Court turns first to plaintiff’s challenge to the ALJ’s credibility findings.
As ALJ Hafer emphasized, “the claimant’s credibility is a major issue in this case.”
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(Tr. 27).
Plaintiff argues that the ALJ erred in his credibility determination because he
used boilerplate language that has been criticized by the Seventh Circuit Court of
Appeals, and the reasons he gave for disbelieving plaintiff were not supported by
the record.
The credibility findings of the ALJ are to be accorded deference, particularly
in view of the ALJ’s opportunity to observe the witness. Powers v. Apfel, 207
F.3d 431, 435 (7th Cir. 2000). Social Security regulations and Seventh Circuit
cases “taken together, require an ALJ to articulate specific reasons for discounting
a claimant's testimony as being less than credible, and preclude an ALJ from
‘merely ignoring’ the testimony or relying solely on a conflict between the objective
medical evidence and the claimant's testimony as a basis for a negative credibility
finding.” Schmidt v. Barnhart, 395 F.3d 737, 746-747 (7th Cir. 2005), and
cases cited therein.
SSR 96-7p requires the ALJ to consider a number of factors in assessing the
claimant’s credibility, including the objective medical evidence, the claimant’s daily
activities, medication for the relief of pain, and “any other factors concerning the
individual’s functional limitations and restrictions due to pain or other symptoms.”
SSR 96-7p, at *3.
It is true that ALJ Hafer used the boilerplate language that was criticized in
cases such as Bjornson v. Astrue, 671 F.3d 640, 644-645 (7th Cir. 2012), and
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Parker v. Astrue, 597 F.3d 920, 921-922 (7th Cir. 2010). However, the use of
the boilerplate language does not automatically require reversal. It is harmless
where the ALJ goes on to support his conclusion with reasons derived from the
evidence. See, Shideler v. Astrue, 688 F.3d 306, 310-311 (7th Cir. 2012);
Richison v. Astrue, 462 Fed. Appx. 622, 625-626 (7th Cir. 2012).
The ALJ is required to give “specific reasons” for his credibility findings.
Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). It is not enough just to
describe the plaintiff’s testimony; the ALJ must analyze the evidence. Ibid. See
also, Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009)(The ALJ “must justify
the credibility finding with specific reasons supported by the record.”)

If the

adverse credibility finding is premised on inconsistencies between plaintiff’s
statements and other evidence in the record, the ALJ must identify and explain
those inconsistencies. Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001).
Here, the reasons given by the ALJ for rejecting plaintiff’s statements are not
supported by the record and are not valid.
The ALJ highlighted the fact that Mr. Bryant asked Dr. Kovalsky for a letter
stating he could not work.
credibility.

This is not a valid reason to question plaintiff’s

“The claimant bears the burden of submitting medical evidence

establishing her impairments and her residual functional capacity. . . . How else
can she carry this burden other than by asking her doctor to weigh in? Yet rather
than forcing the ALJ to wade through a morass of medical records, why not ask the
16

doctor to lay out in plain language exactly what it is that the claimant's condition
prevents her from doing?”

Punzio v. Astrue, 630 F.3d 704, 712 (7th Cir.

2011).
Citing to Dr. Kovalsky’s records, the ALJ observed that Mr. Bryant “was
looking for [a] part time job as a wheat farmer helper.” He went on to say that he
suspected that “little if any farm work” is performed at the sedentary level. (Tr.
26). This is a misstatement of the record. Dr. Kovalsky’s records state that
plaintiff had tried working with a farmer harvesting wheat, but “he was driving the
truck, and he couldn’t sit for more than 30 or 40 minutes because he was getting
increased right buttocks and leg pain.” (Tr. 518).
The ALJ pointed out that plaintiff had tried to return to his job at the boat
factory, “but was unable to lift fifty pounds.” He then went on to draw the illogical
conclusion that “even though his ability to lift fifty pounds was temporary, it
suggests the absence of a disabling degree of impairment.” (Tr. 26).
The ALJ misunderstood the record regarding the efficacy of the spinal cord
stimulator. He suggested that plaintiff’s claim that the spinal cord stimulator
worked only intermittently was contradicted by the fact that “the user guide shows
that it works.” (Tr. 27). However, as the Commissioner concedes in her brief, “the
user guide did not speak to the stimulator’s efficacy.” See, Doc. 26, p. 13. The
ALJ also made the puzzling remark that “I find it ironic that that there has been no
attempt to remove or repair his spinal cord stimulator.”
17

(Tr. 27).

The

Commissioner tacitly concedes that this remark is “somewhat unclear.”

See,

Doc. 26, p. 16. In fact, again, this is a misstatement of the record in that Dr.
Kovalsky’s notes indicate that a Medtronic representative tried several times to
adjust the stimulator.
Lastly, the ALJ felt that plaintiff’s daily activities indicated that he could do
sedentary work. His activities consisted of helping his wife get the kids off to
school in the morning, caring for dogs with the help of his children, spending time
with his children, walking, driving a car, shopping and attending church services.
(Tr. 27). However, these sporadic activities do not add up to an ability to sustain
full time work. This is an example “of a problem we have long bemoaned, in
which administrative law judges have equated the ability to engage in some
activities with an ability to work full-time, without a recognition that full-time work
does not allow for the flexibility to work around periods of incapacitation.” Moore
v. Colvin, 743 F. 3d 1118, 1126 (7th Cir. 2014). See also, Roddy v. Astrue,
705 F.3d 631, 639 (7th Cir. 2013), noting that, while it is appropriate to consider
daily activities when evaluating credibility, “this must be done with care.”
In sum, the reasons the ALJ gave for disbelieving Mr. Bryant are either
contradicted by the record or illogical.
erroneous and requires remand.

The credibility determination was

“An erroneous credibility finding requires

remand unless the claimant's testimony is incredible on its face or the ALJ
explains that the decision did not depend on the credibility finding.” Pierce v.
18

Colvin, 739 F.3d 1046, 1051 (7th Cir. 2014).

Here, the ALJ considered

plaintiff’s credibility to be a “major issue.”
It is not necessary to address plaintiff’s other points, but, as in Pierce, the
determination of the weight to be given to Dr. Kovalsky’s opinion and of plaintiff’s
RFC will require “a fresh look” after reconsideration of Mr. Bryant’s credibility.
Ibid.
The Court wishes to stress that this Memorandum and Order should not be
construed as an indication that the Court believes that Mr. Bryant 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.
Conclusion
The Commissioner’s final decision denying Thomas J. Bryant’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.
DATE:

April 17, 2014.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE
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