Duty v. Commissioner of Social Security
Filing
28
MEMORANDUM AND ORDER, The Commissioner's final decision denying Ginger Duty'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. Signed by Judge J. Phil Gilbert on 2/21/2017. (jdh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GINGER DUTY,
Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant. 1
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Civil No. 15-cv-1210-JPG-CJP
MEMORANDUM and ORDER
GILBERT, District Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Ginger Duty is before the Court,
represented by counsel, seeking review of the final decision of the Commissioner of Social
Security denying her Disability Insurance Benefits (DIB).
Procedural History
Plaintiff applied for benefits on June 13, 2012, alleging disability beginning on February
24, 2010. (Tr. 12.) After holding an evidentiary hearing, Administrative Law Judge (ALJ) Karen
Sayon denied the application for benefits in a decision dated May 19, 2014. (Tr. 12-25.) 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
Plaintiff raises the following points:
1
Nancy A. Berryhill is now the Acting Commissioner of Social Security. See https://www.ssa.gov/agency/
commissioner.html (visited Feb. 7, 2017). She is automatically substituted as defendant in this case. See Fed. R.
Civ. P. 25(d); 42 U.S.C. § 405(g).
1. The ALJ erred in assessing plaintiff’s RFC.
2. The ALJ erred in weighing the medical opinion evidence.
3. The ALJ’s finding at step five was not supported by substantial evidence.
4. The ALJ erred in assessing plaintiff’s credibility.
Applicable Legal Standards
To qualify for DIB, a claimant must be disabled within the meaning of the applicable
statutes. For these purposes, “disabled” means the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
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.
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
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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.
Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008); accord Weatherbee v. Astrue, 649 F.3d 565,
568-69 (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, 51213 (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 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
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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)). 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 Sayon followed the five-step framework described above. She determined that
plaintiff did not engage in substantial gainful activity from her alleged onset through her date last
insured. She found that plaintiff had severe impairments of major depressive disorder, obsessive
compulsive disorder, anxiety, status post cervical fusion, and obesity. (Tr. 14.)
The ALJ found plaintiff had the RFC to perform work at the light level, with physical and
mental limitations. (Tr. 20-22.) Based on the testimony of a vocational expert, the ALJ found
that plaintiff was not able to do her past work. (Tr. 23.) However, she was not disabled because
she was able to perform other work that existed in significant numbers in the regional and
national economies. (Tr. 24.)
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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 the plaintiff.
1. Agency Forms
Plaintiff was born on September 9, 1967, and was forty-two years old at her alleged onset
date. She was insured for DIB through December 31, 2011. (Tr. 192.) She was five feet one
inch tall and weighed one hundred and sixty-one pounds. (Tr. 195.) She completed high school
in 1985 and had no specialized training. (Tr. 196.) She previously worked as an inspector in a
factory, as inventory control in an appliance store, and as a construction worker. (Tr. 197.)
Plaintiff claimed her depression, anxiety, obsessive compulsive disorder, previous neck
surgery, short term memory loss, dizziness, and headaches limited her ability to work. (Tr. 195.)
In April 2013 plaintiff was taking Clonazepam for insomnia, Lamotrigine and Pristiq for
depression, and Luvox for obsessive compulsive disorder. (Tr. 269.)
In September 2012 and February 2013 plaintiff completed function reports. (Tr. 218-25,
255-62.) She lived in a home with her family and helped care for her grandchildren when
needed. (Tr. 218-19, 255-56.) She stated that short term memory problems, depression, neck
pain, and dizziness limited her ability to work. (Tr. 218, 255.) On a daily basis, plaintiff ate,
rested, did a little house work, played a game if she felt well, took a shower, and visited with her
children. She was typically in bed by nine p.m. and she stated that she continually wanted to
sleep more. While she fixed simple meals for her grandchildren and sometimes fed and gave
water to pets, her children primarily took care of the animals and grandchildren. (Tr. 219, 256.)
Plaintiff occasionally made herself sandwiches. She was able to clean her house, do some
5
laundry, and work with flowers. She could clean for about an hour and a half every other week.
(Tr. 220, 257.) She did not drive because she was unable to focus. She went shopping once a
week for thirty minutes at a time for medicine and food. (Tr. 221, 258.)
Plaintiff claimed she had difficulty lifting, squatting, bending, standing, reaching,
walking, kneeling, talking, hearing, climbing stairs, remembering, completing tasks,
concentrating, understanding, following instructions, and getting along with others. She could
walk about one-fourth of a mile before needing to rest for about two minutes. She could pay
attention for five to ten minutes at a time, could follow written instructions if she could recheck
them, and could follow spoken instructions only when repeated several times. (Tr. 223, 260.)
She handled stress and changes in routine very poorly. (Tr. 224, 261.)
In October 2012, plaintiff’s daughter also completed a function report. (Tr. 279-86.) She
stated that plaintiff spent most of her day sleeping and watching television, and she occasionally
tried to clean. (Tr. 280.) Plaintiff could fix simple meals like sandwiches about once or twice a
month and could do light chores around the house. (Tr. 281.) Plaintiff’s daughter stated that
plaintiff would go to the grocery store about once every other week for one or two hours at a
time. (Tr. 282.) She stated that plaintiff had difficulty lifting, squatting, bending, reaching,
kneeling, climbing stairs, remembering, completing tasks, concentrating, understanding,
following instructions, and getting along with others. (Tr. 284.) She felt that plaintiff did not
handle stress or changes in routine well. (Tr. 285.)
2. Evidentiary Hearing
Plaintiff was represented by counsel at the evidentiary hearing held on April 22, 2014.
(Tr. 31.) The ALJ noted that the applicable time for the record was from plaintiff’s alleged onset
date in February 2010 until her DIB insurance coverage ended in December 2011. (Tr. 38.)
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Plaintiff was 47 years old at the time of the hearing and lived with her husband and her son. (Tr.
37.) She had her driver’s license but she did not drive due to issues with concentration. She
testified that she had not driven in close to a year.
During the applicable period of disability determination plaintiff drove a car but her
concentration began to deteriorate during that time. (Tr. 38.) She had no sources of income and
during the time at issue plaintiff made less than $500 babysitting her grandchildren. (Tr. 39.)
Plaintiff testified that in the late 1990s she worked as an iron worker in the construction industry.
(Tr. 39.) After that, she worked as inventory control at a factory and an appliance store. (Tr. 40.)
In February 2011, plaintiff went into the hospital for a neck problem and had immediate
surgery. (Tr. 41-42.) She testified that ten years prior she had bulging discs but she did not have
surgery. After that, the left side of her face began to go numb so when she returned to the
hospital in 2011 they put spacers between the discs. Within six months of the surgery plaintiff’s
neck condition was improved. She had difficulty looking up and down quickly because she
would get dizzy, but otherwise she was greatly improved. (Tr. 42.)
In the spring of 2010, plaintiff had a partial hospitalization and electroconvulsive therapy
(ECT)2 for mental health issues. (Tr. 43.) She felt that for two or three months the ECT helped
her to stop crying frequently and made her able to eat again. (Tr. 43-44.) She was also able to
interact more with her family. (Tr. 45.) After two or three months plaintiff was depressed again,
and her doctors began changing her medications. (Tr. 44.) Plaintiff testified that for over a year
her concentration and short term memory had been poor as a result of her medication changes.
(Tr. 43-44.) When plaintiff was depressed she would stay in bed for most of the day, she did not
2
“Electroconvulsive therapy (ECT) is a procedure, done under general anesthesia, in which small electric currents
are passed through the brain, intentionally triggering a brief seizure. ECT seems to cause changes in brain chemistry
that can quickly reverse symptoms of certain mental illnesses.” http://www.mayoclinic.org/tests-procedures/
electroconvulsive-therapy/basics/definition/prc-20014161.
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interact with her family, and would not leave the house. (Tr. 45-46.) Plaintiff would sleep close
to fourteen hours every day. (Tr. 50.) She stated that prior to her medication changes there were
probably eleven or twelve days per month she felt this way. (Tr. 45-46.) Her daughter, son, and
husband took care of the household chores while she was depressed. (Tr. 46.) At the time of the
hearing, she testified that she would lie in bed for most of the day about two or three times per
week. (Tr. 47.)
In 2010 and 2011, plaintiff had Christmas and Thanksgiving at her home. She stated that
she would lose her composure frequently during these events. (Tr. 49.) About eleven or twelve
people would come to her home, and plaintiff’s attorney pointed out that her doctor told her she
should not host the Thanksgiving meal in 2011 due to stress. (Tr. 49, 53.) Plaintiff testified that
she homeschooled her children until 2009 or 2010. Her older children helped her teach her
youngest child when she had difficulty. (Tr. 55.)
Plaintiff testified that she had symptoms of obsessive compulsive disorder (OCD). (Tr.
47.) She would check and recheck the door locks, repeatedly look through the trash, and recheck
what she had on shelves several times a day before she started Luvox. (Tr. 47-48.) Plaintiff was
suicidal at one point and her children had to take away her medications. They would administer
the appropriate drugs to her daily so she could not access them on her own. (Tr. 51.) Plaintiff
had difficulty retaining information when she read after February 2010. (Tr. 54.) She also had
short term memory problems after the ECT treatments. (Tr. 54-55.) Plaintiff had anger issues
during 2010 and 2011 and she did not feel her medications helped control the problem. (Tr. 56.)
A vocational expert (VE) also testified. (Tr. 57-66.)
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 who was able to perform light work but could not climb ladders,
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ropes, or scaffolding and could not tolerate concentrated exposure to hazards such as dangerous
moving machinery. The individual could not perform complex or detailed tasks or instructions,
but could maintain sufficient concentration, persistence, or pace to complete routine tasks
appropriately and timely. Additionally, the individual’s work should involve simple instructions,
simple work-related decisions, only occasional changes in the workplace setting, no public
interaction, no fast-paced production requirements, and only occasional interaction with
coworkers. (Tr. 60, 62-63.)
The VE testified that the individual could not perform any of plaintiff’s previous work.
(Tr. 61.) However, the individual could perform jobs that exist in a significant number within
the national and regional economies. Examples of such jobs are house keeper, laundry folder,
and light packagers. (Tr. 61-63.) The VE testified that if the individual missed more than one
day of work in the first ninety days, or more than ten days of work in a year, all competitive
employment would be precluded. (Tr. 63-64.) Additionally, the person should not be off task
more than ten percent of the time. (Tr. 64.)
The VE went on to testify that if the person had a verbal disagreement with a supervisor
or coworker twice a month she could not maintain competitive employment. (Tr. 64-65.)
Plaintiff’s attorney referred to a medical source statement on the record and stated that plaintiff
had functional limitations that would preclude work at any skill or exertional level because her
limitations are aptitudes required for any job. (Tr. 65.)
3. Medical Evidence
Plaintiff’s medical records are extensive. While the Court reviewed the entire record, this
opinion will focus on the portions of the record applicable to plaintiff’s brief and the ALJ’s
opinion. These records are primarily from just before the alleged onset date until the date last
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insured, with some additions thereafter.
In February 2010, plaintiff underwent a psychiatric evaluation at St. Mary’s Hospital
where she stated she experienced episodes of extreme anger towards others as well as feelings of
hopelessness and helplessness. (Tr. 317-23.) Plaintiff lacked energy and slept for fifteen hours
per day. (Tr. 317.) She was diagnosed with major depressive disorder, generalized anxiety
disorder, and obsessive compulsive disorder. She was treated with medication and therapy. (Tr.
322.) In March 2010, plaintiff was admitted for inpatient care when medication failed to reduce
her depressive symptoms. (Tr. 298.) She was again diagnosed with major depressive disorder,
generalized anxiety disorder, and OCD. (Tr. 299.)
That April plaintiff began ECT treatments. (Tr. 329-523.) She underwent ten treatment
sessions that month.
In the beginning plaintiff reported that her mood and energy were
improving. (Tr. 364, 422.) Towards the end of her treatment plaintiff reported she did not feel
better and that she was still very irritable. However, the treating psychiatrist reported plaintiff’s
affect was brightened and she had an increased affective range and spontaneous smiles. (Tr.
354.) Upon completion of ECT plaintiff began seeing psychiatrist Dr. Simeon Grater. (Tr. 607.)
Plaintiff indicated she rarely left home and Dr. Grater’s mental status examination indicated
plaintiff’s mood was depressed and her affect was blunted and restricted. (Tr. 607-08.) Dr.
Grater prescribed the stimulant Methylphenidate. (Tr. 609.) In May 2010, plaintiff returned
indicating her OCD had returned and she was irritable and slept for ten to twelve hours daily.
(Tr. 604.) Dr. Grater stated that her mood was depressed and anxious, her affect was blunted and
her thought processes were impaired. (Tr. 605.) In June 2010, plaintiff reported that the ECT
treatments helped her depression but her OCD was doing worse. Dr. Grater noted that plaintiff’s
mood was “remarkably better as time passes from ECT.” (Tr. 601.)
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In July and August 2010 plaintiff’s OCD symptoms worsened, her anxiety returned, and
her mood was frequently reported to be irritable and anxious. (Tr. 595-98.) Dr. Grater changed
plaintiff’s OCD medication but her symptoms continued to persist. (Tr. 597, 600.) In July 2010
plaintiff also reported to her primary care physician, Dr. Suzanne Gauto, and indicated she slept
eleven hours a day and on and off throughout the day. (Tr. 919.) In September 2010, plaintiff
indicated her depression was no longer a problem and her OCD symptoms were improving but
she was sleeping too much. (Tr. 592.) Dr. Grater observed that her affect was blunted and
restricted, her mood was anxious, and she had residual OCD symptoms. (Tr. 594.)
Plaintiff’s OCD symptoms continued in October, and Dr. Grater observed plaintiff
developed a tremor in her right hand. (Tr. 589-90.) He increased her OCD medication but in
November she still had tremors but also had nighttime visual phenomena as well as impaired
concentration. Plaintiff’s depression was in remission. (Tr. 588-91.)
In a mental status
examination the next month plaintiff had a continued blunted and restricted affect as well as
impaired thought processes. (Tr. 584.) Dr. Grater decreased the OCD medication to reduce her
tremors but plaintiff reported that her OCD worsened as a result. (Tr. 580-82.)
In February 2011 plaintiff presented with numbness on the left side of her face and upper
extremity pain. (Tr. 747.) An MRI of plaintiff’s cervical spine revealed mild facet hypertrophy
at C3-4, small left C4-5 paracentral disc protrusion causing minor left ventral cord deformity and
mild to moderate central spinal canal stenosis.
At C4-5 there was mild to moderate left
foraminal stenosis and mild right foraminal stenosis.
At left C5-6 and C6-7 there were
paracentral disc hernias causing left hemi cord flatting and mild to moderate central spinal canal
stenosis. (Tr. 801-02.) Doctors performed a cervical discectomy and fusion surgery that month;
however, plaintiff continued to experience occasional paresthesia in her upper extremities. (Tr.
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531, 545-46.)
In March 2011, Dr. Grater noted that plaintiff had a tremor in her right leg that was
pronounced when she was anxious. Plaintiff had an anxious mood, blunted and restricted affect,
impaired thought process, and decreased energy. (Tr. 578.) In June 2011 Dr. Grater increased
plaintiff’s OCD medication, but she remained irritable, anxious, and her thought process was still
impaired. Dr. Grater prescribed the antipsychotic medication Risperdal. (Tr. 572.) In August
2011, plaintiff’s OCD was causing her to constantly clean her home but she said other than that
“everything [was] great.” (Tr. 564.) In September 2011 plaintiff was happy and active, and Dr.
Grater indicated plaintiff looked and sounded better than ever. (Tr. 561.)
In 2012 plaintiff began seeing psychiatrist Dr. Reno Ahuja, and plaintiff reported
memory loss, impaired attention, impaired sleep, anhedonia, OCD, and mood swings. Dr. Ahuja
diagnosed plaintiff with major depressive disorder, OCD, and insomnia. (Tr. 822-25, 1115-23.)
In August 2011 plaintiff’s neurosurgeon opined that she could increase her activity somewhat
but that she should be restricted to lifting less than twenty pounds and no overhead lifting. (Tr.
539-40.)
4. Opinion of Treating Psychiatrist
In June 2013, Dr. Ahuja completed a mental RFC assessment. (Tr. 1129-32.) Dr. Ahuja
indicated plaintiff had moderate limitations in her ability to: remember locations and work-like
procedures; understand and remember very short and simple instructions; and make simple work
related decisions. She had marked limitations in her ability to: understand, remember, and carry
out detailed instructions; maintain attention and concentration for extended periods; perform
activities within a schedule, maintain regular attendance, and be punctual within customary
tolerances; work in coordination with or proximity to others without being distracted by them;
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complete a normal work-day and work-week without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number and length of rest
periods; accept instructions and respond appropriately to criticism from supervisors; get along
with coworkers or peers without distracting them or exhibiting behavioral extremes; respond
appropriately to changes in the work setting; and to travel to unfamiliar places or use public
transportation. (1129-32.)
5. RFC Assessments
In October 2012, plaintiff’s mental RFC was assessed by state agency psychologist
Howard Tin, Psy.D. (Tr. 68-72, 75-78.) He reviewed plaintiff’s records but did not examine
plaintiff in person. Dr. Tin opined that plaintiff would have mild restrictions in her activities of
daily living and moderate difficulties maintaining social functioning. Plaintiff had moderate
difficulties in maintaining concentration, persistence, or pace and had no episodes of
decompensation on record. (Tr. 72.) He also opined that plaintiff would be moderately limited in
her ability to: carry out detailed instructions; maintain attention and concentration for extended
periods; work in coordination with or in proximity to others without being distracted by them;
interact with the general public; and get along with coworkers or peers without distracting them
or exhibiting behavioral extremes. (Tr. 74-76.)
In March 2013, plaintiff had a second mental RFC assessed by state agency psychologist
Donald Henson, Ph.D. (Tr. 80-87, 90-93.) He reviewed plaintiff’s records but did not examine
plaintiff in person. He opined that plaintiff was moderately limited in her ability to: understand,
remember, and carry out detailed instructions; maintain attention and concentration for extended
periods; work in coordination with or proximity to others without being distracted by them;
interact with the general public; and get along with coworkers or peers without distracting them
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or exhibiting behavioral extremes. (Tr. 90-91.)
Plaintiff’s physical RFC was first assessed in October 2012 by state agency physician B.
Rock Oh. (Tr. 72-75.) Dr. Oh felt plaintiff could occasionally lift or carry twenty pounds and
frequently lift or carry ten pounds. Plaintiff could stand, walk, or sit for about six hours in an
eight hour workday. (Tr. 73.) Dr. Oh opined that plaintiff could never climb ladders, ropes,
scaffolds. (Tr. 73.) Additionally, plaintiff should avoid concentrated exposure to hazards such as
machinery or heights. (Tr. 74.) Based on his RFC assessment, Dr. Oh felt plaintiff’s maximum
sustained work capability would be light work and she was “not disabled.” (Tr. 78.)
In March 2013, plaintiff’s physical RFC was reassessed by state agency physician C.A.
Gotway. (Tr. 87-90.) Dr. Gotway found plaintiff to have the same restrictions as those found
within Dr. Oh’s RFC assessment. (Tr. 88-89.) Dr. Gotway also felt plaintiff was “not disabled”
and could sustain light work. (Tr. 93.)
Analysis
Plaintiff contends that the ALJ erred in forming her RFC assessment, weighing the
medical opinions, determining plaintiff could perform certain work at step five, and forming her
credibility assessment. As plaintiff relies in part on her testimony, the Court will first consider
her argument regarding the ALJ’s credibility analysis.
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
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finding.” Schmidt v. Barnhart, 395 F.3d 737, 746-47 (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.
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. Id.; 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, 245 F.3d at 887.
The ALJ found plaintiff to be less than credible because she felt her allegations were not
supported by objective medical evidence. As plaintiff notes, however, the Seventh Circuit has
repeatedly held that an ALJ may not reject a claimant’s subjective allegations based solely upon
a lack of corroborating objective medical evidence. Pierce v. Colvin, 739 F.3d 1046, 1049-50
(7th Cir. 2014); Villano, 556 F.3d at 562; Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
Further, while the ALJ discusses a great deal of the medical evidence on record, she fails to
explain how it factored into her analysis. She merely summarizes portions the record and broadly
states that the evidence does not indicate plaintiff’s impairments were severe. (Tr. 18-20.) It
seems as though the ALJ formed her RFC assessment and rejected any statements that failed to
comport with that assessment. This is error. See Stark v. Colvin, 813 F.3d 684, 688 (7th Cir.
2016) (stating, “the ALJ based her credibility finding on her finding about Stark’s ability to
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work, but a proper assessment requires the reverse. A finding about Stark’s ability to work
depends on the credibility of her statements about severe pain.”).
The ALJ did not discuss how plaintiff’s activities of daily living, medication, treatments
other than medication, or work history factor into her analysis. For example, plaintiff took
strong drugs and underwent ECT treatments. (Tr. 299, 572, 597, 604, 408-501.) The ALJ
mentions the drugs and ECT treatments, but she fails to indicate how they factor into her
analysis. While these drugs and treatments alone are not enough to show plaintiff’s disabilities
were the degree she alleged, the Seventh Circuit has held that it is improbable that “a claimant
would undergo pain-treatment procedures. . . in order to increase chances of obtaining disability
benefits or that doctors would prescribe these treatments if they thought she were faking.” Goble
v. Astrue, 385 Fed. App’x. 588, 591 (7th Cir. 2010).
The Commissioner argues that plaintiff improved after ECT treatments and therefore the
credibility determination is valid. While plaintiff did have a positive reaction to some ECT
treatments, she also has records that indicate she had a depressed mood after treatment (Tr. 605,
608, 823, 825), she had decreased energy and motivation, (Tr. 578, 598, 1115, 1123), and her
OCD symptoms worsened. (e.g., Tr. 580, 589, 595-98, 601, 604.) The ALJ mentions these facts
but comes to the conclusion that plaintiff’s mental impairments were not as severe as she alleged.
As the Seventh Circuit has noted, a claimant under continuous treatment for chronic mental
illness will have both good and bad days. Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir. 2008).
The ALJ must build a “logical bridge” from the evidence to her conclusions, and here she failed
to do so. Simila v. Astrue, 573 F.3d 503, 516 (7th Cir. 2009).
The erroneous credibility determination requires remand.
“An erroneous credibility
finding requires remand unless the claimant’s testimony is incredible on its face or the ALJ
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explains that the decision did not depend on the credibility finding.” Pierce, 739 F.3d at 1051.
See also Ghiselli v. Colvin, 837 F.3d 771, 779 (7th Cir. 2016) (noting that an erroneous
credibility determination cannot be deemed harmless error where it informed the ALJ’s findings
with respect to plaintiff’s RFC and ability to do past work and other work).
Reconsideration of plaintiff’s credibility will also require a “fresh look” at the medical
opinions and plaintiff’s RFC. Pierce, 739 F.3d at 1051. It is therefore not necessary to analyze
plaintiff’s other points in detail. The Court nevertheless makes the following observations with
regard to the RFC assessment and the step five analysis.
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 relevant evidence in the
record and provide a “narrative discussion” that cites to specific evidence and describes how that
evidence supports the assessment. The ALJ’s analysis and discussion should be thorough and
“[s]et forth a logical explanation of the effects of the symptoms, including pain, on the
individual’s ability to work.” S.S.R. 96-8, at *5, 7. The Seventh Circuit has held that “the ALJ’s
decision must be based on testimony and medical evidence in the record, and not on his own
‘independent medical findings.’” Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996).
Plaintiff contends that the ALJ failed to identify the evidentiary basis that supported her
assessment of plaintiff’s mental RFC. The Commissioner contends that the ALJ relied upon the
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opinions of the state agency psychological consultants for her RFC assessment. However, as
plaintiff notes, the ALJ did not rely on the psychological consultants for the assessment. She
gave the opinion evidence of the state agency psychologists “less than great weight” and “no
weight” as she found them to be inconsistent and not supported by the record. (Tr. 21-22.) As
plaintiff notes, the ALJ did not adequately explain what evidence she did rely upon to determine
the limitations she found after she gave these opinions less weight. The Seventh Circuit has held
that if there is an “evidentiary deficit” such as this, the ALJ is not permitted to form the medical
assessment based on her own lay understanding of the impairments. Suide v. Astrue, 371 F.
App’x 684, 690 (7th Cir. 2010). Therefore, upon reconsideration the ALJ should reexamine and
more thoroughly explain how she arrives at plaintiff’s mental RFC determination.
Finally, plaintiff challenges the ALJ’s determination at step five that plaintiff could
perform the jobs of packager and laundry sorter.
Plaintiff contends that the hypothetical
presented by the ALJ to the VE involving simple and routine tasks but not work that involved
detailed tasks or instructions equates to a level one reasoning skill level within the DOT. This is
because jobs that require a person to “apply commonsense understanding to carry out detailed
but uninvolved written or oral instructions” require level two reasoning skills. Dictionary of
Occupational Titles, 1991 WL 688702 (1991). The jobs the VE presented that plaintiff could
perform of packager and laundry sorter require level two reasoning skills. 1991 WL 683797,
INSPECTOR AND HAND PACKAGER, DICOT 559.687-074; 361.687-014; 1991 WL 672991,
CLASSIFIER, DICOT 361.687-014. This Court agrees the ALJ erred in failing to resolve the
conflict between the VE’s testimony and the DOT standards. On remand, the Commissioner
should rectify this inconsistency. See Herron v. Shalala, 19 F.3d 329, 334 (7th Cir. 1994)
(explaining that when the ALJ relies on a series of jobs and all but one are precluded, remand is
18
necessary); Overman v. Astrue, 546 F.3d 456 (7th Cir. 2008) (explaining that the ALJ has a duty
to resolve conflicts between the VE’s testimony and the DOT and that conflicting information
may not be sufficient to support the ALJ’s decision).
The Court wishes to stress that this Memorandum and Order should not be construed as
an indication that the Court believes that Ms. Duty is disabled or that she 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 Ginger Duty’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: February 21, 2017
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE
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