Lappin v. Commisioner of Social Security
Filing
30
MEMORANDUM AND OPINION. The Commissioner's final decision 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 9/7/2016. (klm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHAWN E. LAPPIN,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
Civil No. 15-cv-353-CJP 1
MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Shawn Lappin is before
the Court, represented by counsel, seeking judicial review of the final agency
decision denying him Disability Insurance Benefits (DIB) and Supplemental
Security Income (SSI) benefits pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for benefits on May 14, 2012, alleging disability
beginning on January 11, 2012. (Tr. 20). After holding an evidentiary hearing,
ALJ Lee Lewin denied the application in a written decision dated December 23,
2013. (Tr. 20-30). The Appeals Council denied review, and the decision of the
ALJ became the final agency decision. (Tr. 1). Administrative remedies have
been exhausted and a timely complaint was filed in this Court.
Issues Raised by Plaintiff
This case was referred to the undersigned for final disposition on consent of the parties,
pursuant to 28 U.S.C. §636(c). See, Doc. 15.
1
1
Plaintiff raises the following points:
1. The ALJ improperly assessed plaintiff’s RFC.
2. The ALJ erred in analyzing the opinion from the examining physician.
3. The ALJ improperly assessed plaintiff’s credibility.
4. The ALJ erred in failing to question the vocational expert about the
source of components of her testimony.
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).
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, and that is done for
pay or profit. 20 C.F.R. §§ 404.1572.
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. As is 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
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 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,
3
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 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).
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 recognize that the scope of 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 plaintiff was, in fact, disabled at the
relevant time, but whether the ALJ’s findings were supported by substantial
evidence and whether any errors of law were 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)).
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
4
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 Lewin followed the five-step analytical framework described above.
She determined plaintiff had not been engaged in substantial gainful activity
since his alleged onset date. (Tr. 22). She found plaintiff had severe
impairments of bilateral hip necrosis, bilateral hip osteoarthritis, status post
left hip arthroscopy, bilateral shoulder vascular necrosis, and mild obesity. (Tr.
23). The ALJ determined these impairments do not meet or equal a listed
impairment.
The ALJ found plaintiff had the residual functional capacity to perform
work at the sedentary level, with physical limitations. (Tr. 23). Based on the
testimony of a vocational expert, the ALJ found that plaintiff was not able to
perform his past work. However, he was not disabled because he was able to
perform other work that exists in significant numbers in the regional and
national economies. (Tr. 28-29).
The Evidentiary Record
5
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. Agency Forms
Plaintiff was born on September 6, 1974 and was thirty-seven years old
on his alleged onset date. He was insured for DIB through March 31, 2017.3
(Tr. 38, 197). He was five feet eight inches tall and weighed two hundred and
five pounds. (Tr. 201). He completed high school in 1993 and was enrolled in
some special education classes. (Tr. 201-02). Plaintiff received an Examiner’s
license in 2006. He previously worked as a roof bolter, mine examiner, and
decorator. (Tr. 202). Plaintiff felt his ability to work was limited because his left
hip collapsed and he had vascular necrosis in his right hip. (Tr. 201).
Plaintiff completed function reports in June and November 2012. (Tr.
208-18, 254-65). Plaintiff lived in a home with family. He stated that his
problems standing, walking, sitting, and lifting limited his ability to work. (Tr.
208, 254). He had a dog he cared for and he prepared his own simple meals.
(Tr. 209-10). He also had two daughters he cared for every other week. (Tr.
255). He could do laundry for about five minutes. He stated that some days his
pain was so bad that he did not leave his bed and he needed encouragement to
perform any tasks. (Tr. 210, 256). He was able to drive, ride in a car or walk.
(Tr. 257). He had no difficulty paying attention or following instructions but he
did not think he handled stress well. (Tr. 213-14, 259-60).
The date last insured is relevant to the claim for DIB, but not the claim for SSI. See, 42 U.S.C. §§ 423(c) &
1382(a).
3
6
Plaintiff claimed his injuries affected his ability to lift, squat, bend, stand,
reach, walk, sit, kneel, climb stairs, and complete tasks. He felt he could walk
fifty feet before needing to rest for five or ten minutes. (Tr. 213, 259). Plaintiff
used crutches or a cane when he had to walk long distances. (Tr. 214, 260). He
claimed to have pain in his right hip when he reached overhead or above waist
level. (Tr. 217, 263). He stated he had sharp pain in his hip any time he got in
or out of a car, got up from a chair or sofa, or got out of bed. He felt the longest
he could sit due to his pain was fifteen to thirty minutes. (Tr. 218, 262).
2. Evidentiary Hearing
Plaintiff was represented by counsel at the evidentiary hearing on
September 12, 2013. (Tr. 35-79). Plaintiff was thirty-nine years old, five feet
eight inches tall, and two hundred and ten pounds at the time of the hearing.
(Tr. 42). Plaintiff lived with his father and had a driver’s license. (Tr. 53-54). He
indicated he did not drive often because he recently sold his vehicle to pay for a
hip replacement surgery. Prior to selling his car, plaintiff testified that he only
drove two or three times a week to purchase groceries. (Tr. 54). He did not
travel in a car for more than forty-five minutes because he had difficulty sitting
in a vehicle for long periods of time. (Tr. 57). His sister came and helped clean
and do household chores. Plaintiff stated he could do some of his own laundry
but did little else around the house because it hurt to stand. (Tr. 55).
Plaintiff worked in a coal mine for nine years before stopping work in
January 2012. (Tr. 42). He drove a ram car and was operating the car when he
became injured. He testified that he was getting out of the cab of the machine
7
and his jacket got caught on a lever. This caused him to fall and hurt his ankle
and hip. He never returned to work after this incident. (Tr. 43).
The ALJ noted that the record seemed to show plaintiff had a hand injury
on the job and earnings in the spring of 2012. Plaintiff indicated he did not
work after his alleged onset date and was unsure why the records indicated he
had earnings. (Tr. 45-46). Plaintiff testified that his hip injury is what caused
him to be unable to work. His orthopedic doctor, Dr. Chien, diagnosed him
with avascular necrosis of the hip. (Tr. 46). Dr. Chien recommended a complete
left hip replacement and decompression. Plaintiff stated that he did not have
the replacement right away because he did not have health insurance. (Tr. 47).
Plaintiff testified that pain was the main thing keeping him from being
able to work. (Tr. 47). He stated that on average his pain is a seven or an eight
out of ten. Soaking in a tub, ice packs, and heating pads helped with pain
relief. He indicated he could sit or stand for about ten or fifteen minutes at a
time. (Tr. 48, 61). He felt he could stand for a total of two or three hours in an
eight hour day and sit for about an hour. (Tr. 60-61). He took Excedrin or
Tylenol for pain. His doctor originally gave him a prescription for Tramadol but
he stated that he could not afford to get it refilled. (Tr. 49). He also had
injections into his hip but he did not feel they were helpful. Plaintiff testified
that he still owed money for the injections. (Tr. 50).
Plaintiff had hip replacement surgery three weeks before his evidentiary
hearing. (Tr. 39, 51). Prior to his surgery, plaintiff stated he could walk forty to
fifty feet, typically with a crutch. After the surgery, plaintiff walked with either a
8
cane or a walker. (Tr. 51). He stated that he had pain in his other hip and his
back since he had his hip replaced. (Tr. 52). He testified that he only slept two
or three hours at time due to pain. (Tr. 56).
Plaintiff also had trouble with his shoulders and arms. He could only
hold about seven pounds with his left arm and hand and his right arm “locked
up” on him. His difficulties with his shoulders and arms began in 2010 after a
fall. (Tr. 57). He could lift his left arm in all directions and was able to feed
himself. He testified that his doctor indicated he had a “considerable amount of
collapsing in the left shoulder.” (Tr. 58). He had problems grasping with both
his left and right hand but the left was worse. He indicated this was a result of
avascular necrosis in his shoulders as well. (Tr. 63). He was not receiving
treatment for his shoulders or arms because he could not afford it. (Tr. 59).
Plaintiff also stated he had problems with his knee that caused pain three or
four times a week. (Tr. 62). Plaintiff testified that he smoked about a pack of
cigarettes a week and drank about a case of beer a week as well. He stated that
he drank when his family came over and they all split the beer but he did not
pay for it. (Tr. 64).
A Vocational Expert (VE) also testified. (Tr. 65-78). The ALJ asked the VE a
hypothetical question which comported with the ultimate RFC assessment,
that is, a person of plaintiff’s age and work history that was able to perform
sedentary work but could only occasionally stoop, kneel, crouch, crawl,
balance, and climb ramps and stairs. (Tr. 74-75). The person could never climb
ladders, ropes, or scaffolds. (Tr. 75). The person could occasionally operate
9
bilateral foot controls, reach overhead bilaterally, and manipulate with the nondominant
left
upper
extremity.
Additionally,
the
person
should
avoid
concentrated exposure to hazards including dangerous moving machinery and
unprotected heights. (Tr. 75).
The VE testified that the person could not perform any of plaintiff’s previous
work. The person could still perform jobs that exist in significant numbers in
the national economy. Examples of such jobs are circuit board assembler,
document preparer, and surveillance monitor. (Tr. 73-76). However, several of
the jobs would have a reduced amount of availability as a result of the
restrictions. The availability of the circuit board assembler and document
preparer jobs would be reduced by fifty percent. (Tr. 76). The VE also stated
that if the individual had to miss more than four days of work all jobs would be
eliminated. Additionally, if the person could not sit, stand, or walk eight hours
in an eight hour workday all competitive employment would be precluded. (Tr.
77).
3. Medical Evidence
In January 2012, plaintiff reported to Sparta Community Hospital with
pain in his back and left hip after falling at work. He had tenderness and a
limited range of motion in his left hip. (Tr. 280). Later that month, plaintiff had
an MRI and an X-ray on his left hip. (Tr. 283, 289). The MRI revealed
prominent bilateral avascular necrosis of the femoral heads 4, but no significant
4
“Avascular necrosis is the death of bone tissue due to a lack of blood supply.” The condition
“can lead to tiny breaks in the bone and the bone’s eventual collapse.”
http://www.mayoclinic.org/diseases-conditions/avascular-necrosis/basics/definition/con-20025517
10
collapse or flattening deformity. It also displayed mild bone marrow edema in
the left acetabulum 5 with a prominent lobulated subchondral cyst 6. (Tr. 283).
The X-ray results indicated plaintiff had accelerated arthritis to the left side
that suggested the possibility of avascular necrosis. (Tr. 289).
Plaintiff also saw orthopedist Dr. Tony Chien in January 2012. He
diagnosed plaintiff with avascular necrosis in both hips and degenerative joint
disease of the left hip. Dr. Chien recommended plaintiff have total hip
arthroplasty due to the collapsing of the avascular necrosis. (Tr. 394-96). In
June 2012, plaintiff presented at Franklin hospital with hip, shoulder, and
neck pain. He was given Norflex and Meloxicam for pain. (Tr. 385). In June
2012, plaintiff saw Dr. Chien again. Plaintiff had difficulty with ambulation and
activities
of
daily
living.
He
noted
plaintiff’s
symptoms
were
getting
progressively worse. (Tr. 391). Dr. Chien stated plaintiff was unable to work at
that time. (Tr. 392). Plaintiff followed up with Dr. Chien again in September
2012. Dr. Chien noted plaintiff had bilateral hip pain and would need a hip
replacement. He prescribed tramadol and stated plaintiff could work at a desk
sitting job only. (Tr. 390).
In February 2013 plaintiff presented at Marshall Browning Hospital with
bilateral hip pain and it was again recommended he pursue a total hip
replacement. (Tr. 403). It was noted that on examination, plaintiff had
5
An acetabulum is the socket of the hipbone. http://www.merriam-webster.com/dictionary/acetabulum
A subchondral cyst is “a fluid-filled sac that forms inside of and extends from the bone of a
joint.” https://www.verywell.com/what-is-a-subchondral-cyst-2552235
6
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avascular necrosis in both hips with the left side more prominent than the
right. (Tr. 408).
In August 2013, plaintiff presented at the Orthopedic Institute of
Southern Illinois reporting constant sharp and achy pain in his hips. He stated
his pain was an eight out of ten and nothing helped relieve pain. His pain
predominantly occurred while walking. He had injections in his hip but they
were not helpful. (Tr. 451). The doctor noted plaintiff’s X-rays and MRIs
indicated he had avascular necrosis of his hips bilaterally with early collapse of
the left femoral head. (Tr. 451, 453). Later that month, plaintiff had a total left
hip replacement. (Tr. 467-76).
In September 2013, he returned to the Orthopedic Institute for a
postoperative follow up and stated he had quite a bit of pain when he went
from sitting to standing. He was in therapy but had stopped because he was
doing “okay.” On physical examination the doctor noted plaintiff’s left leg
seemed longer and plaintiff had a lot of pain with abduction. The doctor
indicated he wanted plaintiff to return to therapy and return for a follow up
soon. (Tr. 497). In December 2013, prior to the ALJ’s decision plaintiff returned
to the Orthopedic Institute for a follow up on his hip. The physician’s assistant
indicated plaintiff’s implant looked excellent but plaintiff had a leg length
discrepancy. (Tr. 499).
Plaintiff also has records indicating he had problems with his shoulders.
In June 2011 plaintiff had an MRI after he presented with left shoulder pain
and a decreased range of motion after a fall. The MRI indicated he had a
12
healing fracture deformity throughout his left shoulder, mild joint effusion, and
mild tendinopathy without evidence of a rotator cuff tear. (Tr. 318).
Plaintiff also had an X-ray that indicated he had sclerotic changes and
possibly early signs of avascular necrosis in his shoulders. Plaintiff received
cortisone injections but declined therapy because he was paying out of pocket.
(Tr. 325). Plaintiff also complained of shoulder pain in August 2013 when he
presented at the Orthopedic Institute. He had a restricted range of motion and
tenderness but no evidence of instability or atrophy. (Tr. 444). He had
radiographs done of both shoulders which indicated avascular necrosis and
evidence of early collapse. (Tr. 444, 446). His doctor stated that he should have
physical therapy on his shoulders to see if he could benefit from conservative
treatment first. (Tr. 445).
4. Medical Examination
In May 2012, plaintiff saw Dr. Matthew Collard for an independent
medical evaluation. (Tr. 296-99). Dr. Collard reviewed plaintiff’s medical
records prior to that date and described them in detail. (Tr. 296-67). Plaintiff
favored his left leg while walking and his left hip showed “exquisite pain” over
the groin with internal and external rotation of his hip. (Tr. 298). Dr. Collard’s
impressions were idiopathic avascular necrosis of the bilateral hips and severe
left hip pain. (Tr. 298). Dr. Collard indicated he believed plaintiff’s hip pain was
a result of avascular necrosis and not the result of any one particular incident.
He also stated that he did not believe plaintiff could return to full work duty,
but instead needed a non-ambulating sedentary type job. He felt plaintiff would
13
need a total hip replacement on his left hip, and eventually a total replacement
of the right hip as well. (Tr. 298-99).
5. RFC Assessments
Plaintiff’s physical RFC was assessed by state agency physician Richard
Bilinsky in July 2012. (Tr. 80-95). He reviewed plaintiff’s records but did not
examine plaintiff in person. Dr. Bilinsky opined that plaintiff could occasionally
lift or carry twenty pounds and frequently lift or carry ten pounds. He felt
plaintiff could stand or walk for two hours out of an eight hour day and sit for
six hours. Plaintiff’s ability to push and pull with both lower extremities was
limited. (Tr. 92). Plaintiff could occasionally climb ladders and stairs, balance,
stoop, kneel, crouch, and crawl. He could never climb ladders, ropes, or
scaffolds. (Tr. 92).
Dr. Bilinsky opined that plaintiff should avoid concentrated exposure to
hazards like machinery and heights but he had no further environmental or
manipulative limitations. (Tr. 93). He felt plaintiff’s maximum sustained work
capability would be sedentary work. (Tr. 94). In December 2012, state agency
physician Lenore Gonzalez also reviewed the record and agreed with all of Dr.
Bilinksy’s findings. (Tr. 98-115).
Analysis
Plaintiff argues that the ALJ erred in forming plaintiff’s RFC, in analyzing
the opinion of an examining physician, in forming her credibility assessment,
and in failing to question the VE about the source of components of her
14
testimony. As plaintiff relies in part on his testimony, the Court will first
consider his argument regarding the ALJ’s credibility analysis.
It is well-established that 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). “Applicants for
disability benefits have an incentive to exaggerate their symptoms, and an
administrative law judge is free to discount the applicant’s testimony on the
basis of the other evidence in the case.” Johnson v. Barnhart, 449 F.3d 804,
805 (7th Cir. 2006).
Plaintiff takes issue with the ALJ’s usage of boilerplate language that has
been criticized in cases such as Parker v. Astrue, 597 F.3d 920 (7th Cir.
2010), and Brindisi v. Barnhart, 315 F.3d 783 (7th Cir. 2003). However,
the use of the boilerplate language does not necessarily require remand. The
use of such language is harmless where the ALJ goes on to support her
conclusion with reasons derived from the evidence. See, Pepper v, Colvin, 712
F.3d 351, 367-368 (7th Cir. 2013); Shideler v. Astrue, 688 F.3d 306, 310311 (7th Cir 2012).
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.
15
Plaintiff also contends the ALJ erred in not looking to his work history to
support his credibility claims. As the Commissioner notes, the Seventh Circuit
has stated that a claimant’s work history is just one factor among many, and it
is not dispositive. Loveless v. Colvin, 810 F.3d 502, 508 (7th Cir. 2016). The
ALJ’s failure to consider plaintiff’s lengthy consistent work history is not error
when other factors are appropriately considered. However, while the ALJ
considered a variety of other credibility factors, her analysis is legally
insufficient.
Plaintiff argues that the ALJ erred by failing to identify which of plaintiff’s
statements she found to not be entirely credible. He then goes on to list several
portions of testimony where he claimed to have difficulty performing tasks,
pain in his hip and back, and needed to lie down. Contrary to plaintiff’s
suggestion, “an ALJ's credibility findings need not specify which statements
were not credible.” Shideler v. Astrue, 688 F.3d 306, 312 (7th Cir. 2012).
While the ALJ need not address every portion of plaintiff’s testimony or
specify which statements are credible her analysis concerning the objective
medical evidence in relation to plaintiff’s credibility is inadequate. Her
credibility analysis with regard to the objective medical record is limited to
plaintiff’s claims that he had knee pain and shoulder pain. She noted there is
little evidence his problems worsened and they were longstanding. She stated
that plaintiff testified he had sharp knee pain for two or three minutes several
times a week but this is not reflected in the record. (Tr. 25).
16
The Seventh Circuit has held that in order to properly assess whether
someone has the symptoms they allege an ALJ needs to look at the reasoning
as to why treatment was avoided. McKinzey v. Astrue, 641 F.3d 884 (7th Cir.
2011). The Social Security Administration and the Seventh Circuit have stated
that an inability to afford treatment is a legitimate reason for not seeking it.
SSR 96-7p; Shauger v. Astrue, 675 F.3d 690 (7th Cir. 2012). The ALJ here
acknowledges that plaintiff did not have health insurance and that he stated
multiple times that he could not afford treatment, but she still uses his lack of
treatment against him. This is error.
Further, the ALJ’s placed a significant amount of weight on the fact that
plaintiff made one statement regarding his knee hurting for a few minutes a
few times a week but had not told his doctors on record. She noted that he had
a knee surgery in the past, but failed to discuss this issue further with his
doctors after his alleged onset date. She does not discuss how almost all of
plaintiff’s claims of pain in his shoulders and hips were supported by the
record. (Ex., Tr. 318, 391, 394, 444, 446). Nor does she discuss how plaintiff’s
statements that his legs were a different length post hip replacement were
supported by the medical notes on record. (Tr. 497, 499). The Seventh Circuit
has “repeatedly held that although an ALJ does not need to discuss every piece
of evidence in the record, the ALJ may not analyze only the evidence
supporting
her
ultimate
conclusion
while
ignoring
the
evidence
undermines it.” Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014).
17
that
This Court notes that an ALJ’s credibility analysis is not confined to one
paragraph and may be woven throughout her opinion. Sawyer v. Colvin, 512
F. App’x 603, 608 (7th Cir. 2013). Here, however, when the entire opinion is
analyzed it appears as though the ALJ selectively disregarded portions of the
record in forming her credibility determination. Myles v. Astrue, 582 F.3d
672, 678 (7th Cir. 2009). Elsewhere in the opinion she discusses plaintiff’s
issues with his shoulders and hips, but she fails to mention how the vast
majority of his testimony regarding his medical issues was supported within
the record, and instead focuses on the one portion that was not.
Plaintiff contends that the ALJ incorrectly considered plaintiff’s daily
activities in forming her credibility determination. The Seventh Circuit has
repeatedly held it is appropriate to consider daily activities but it should be
done with caution. Roddy v. Astrue, 705 F.3d 631, 639 (7th Cir. 2013). The
ALJ stated plaintiff’s claim that he spent his day going from the couch to the
recliner or bed was not supported by his reports that he made simple meals,
did laundry, and shopped for food. Additionally, she felt his report that he only
used a crutch when he walked long distances indicated he was not as disabled
as he stated. (Tr. 25-26).
The ALJ failed to consider that plaintiff could choose to perform these
minimal daily activities when he was not experiencing symptoms. It is unclear
how plaintiff’s ability to feed himself, occasionally do laundry (the ALJ
acknowledged elsewhere in the opinion that plaintiff’s sister typically did most
of the laundry), shop for groceries, and use a crutch when walking long
18
distances is not supported by his testimony that he typically spends all day
moving from the couch to the recliner or bed. The Court does not follow the
ALJ’s determination that plaintiff’s minimal daily activities are not in line with
his claims of limitation.
Finally, plaintiff argues that it was inappropriate for the ALJ to use
plaintiff’s tobacco and alcohol usage against him in her credibility assessment.
The ALJ stated that “[a]lthough the claimant has alleged lack of money as the
explanation for infrequent treatment reflected in the record, there is some
indication that the claimant spent money for other purposes such as tobacco
and alcohol.” (Tr. 26). The ALJ then cited a record that stated he had chronic
tobacco use. (Tr. 392). The Commissioner argues that there is an inconsistency
between plaintiff’s claim of lack of money and his ability to afford his cigarette
habit.
First, as plaintiff notes, there is no indication plaintiff was purchasing
his own cigarettes or alcohol. In fact, as the ALJ noted elsewhere in her
opinion, plaintiff testified that his family members always purchased the
alcohol. (Tr. 25, 64). Even if plaintiff did purchase his own alcohol and tobacco,
there is no indication anywhere within the record that the cost of cigarettes
and beer were equal to that of medical treatment. As plaintiff states, the
Seventh Circuit has stated that an ALJ cannot assume a claimant is spending
money on tobacco products instead of pursuing medical treatment without
establishing the cost of both. Eskew v. Astrue, F. App’x 613, 616 (7th Cir.
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2011). The ALJ’s presumption that plaintiff was spending money on alcohol
and tobacco instead of seeking medical treatment is error.
An ALJ must build logical bridge from evidence to conclusion. To permit
meaningful review, the ALJ must explain sufficiently what she meant. “If a
decision “lacks evidentiary support or is so poorly articulated as to prevent
meaningful review,” a remand is required. Steele v. Barnhart, 290 F.3d 936,
940 (7th Cir.2002).” Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir., 2012).
Here, the ALJ failed to adequately assess plaintiff’s credibility and her opinion
must be remanded.
It is not necessary to address plaintiff’s other points at this time. The
Court wishes to stress that this Memorandum and Order should not be
construed as an indication that the Court believes that plaintiff 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
Plaintiff’s motion for summary judgment is granted. The Commissioner’s
final decision denying Shawn E. Lappin’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.
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DATE: September 7, 2016.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE
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