Gillespie v. Commissioner of Social Security

Filing 31

MEMORANDUM AND OPINION.The Commissioners final decision denying Terrie E. G.s application for DIB benefits 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 8/28/2018. (kab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TERRI E. G., 1

)
)
Petitioner,
)
)
vs.
)
)
COMMISSIONER
OF
SOCIAL )
SECURITY,
)
)
)
Respondent.

Civil No. 17-cv-357-CJP 2

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), Plaintiff Terri E. G., represented by
counsel, seeks judicial review of the final agency decision denying her application
for Disability Insurance Benefits (DIB) pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for benefits in October 2011 alleging disability beginning in
June 2011.

(Tr. 140).

Plaintiff was denied benefits initially and upon

reconsideration. (Tr. 86; 90-93). After a September 2013 evidentiary hearing, she
was again denied. (Tr. 12-35). Plaintiff exhausted administrative remedies and
filed a timely complaint with this Court in 2015, Terri E. G. v. Colvin, 15-CV-723CJP. (Tr. 1139-42). Upon the parties’ agreed motion for remand, this Court
reversed and remanded the case back to the Social Security Administration for a
1

In keeping with the Court’s recently adopted practice, Plaintiff’s full name will not be used in this
Memorandum and Order due to privacy concerns. See, Fed. R. Civ. P. 5.2(c) and the Advisory
Committee Notes thereto.
2
This matter was referred to the undersigned for final disposition upon consent of the parties,
pursuant to 28 U.S.C. §636(c). See, Doc. 30.

1

new hearing.

(Tr. 1153-54).

Following remand, Plaintiff was given a second

hearing in November 2016 before Administrative Law Judge (ALJ) Michael
Scurry. He denied her application for benefits. (Tr. 1033-57). Plaintiff did not
seek review from the Appeals Council, making ALJ Scurry’s decision final. 3
Plaintiff filed a timely complaint with this Court.
Issues Raised by Plaintiff
Plaintiff raises the following points:
1.
2.
3.
4.
5.

The
The
The
The
The

ALJ failed to follow the law of the case doctrine;
ALJ erred in evaluating Plaintiff’s subjective symptoms;
ALJ erred in evaluating opinion evidence;
ALJ erred in considering Plaintiff’s obesity; and
ALJ erred in considering third party evidence.
Applicable Legal Standards

To qualify for DIB benefits, a claimant must be disabled within the meaning
of the applicable statutes and regulations. 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

3

See 20 C.F.R. § 404.984 (authorizing a claimant to bypass Appeals Council review when case was
previously remanded from a federal court). See Murphy v. Berryhill, 727 F.App’x 202 (7th Cir.
2018).

2

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 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).
3

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).
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)). 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); Moore v.

Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014). However, while judicial review is
4

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 Scurry followed the five-step analytical framework described above.
He determined Plaintiff was insured through December 31, 2016, and that
Plaintiff had not engaged in substantial gainful activity (SGA) since June 2011.
The ALJ found Plaintiff’s severe impairments included fibromyalgia, history of
lupus, seronegative non-erosive rheumatoid arthritis, non-insulin dependent
diabetes mellitus with neuropathy, hypertension, history of syncopal episodes,
status post coronary artery bypass graft, obstructive sleep apnea, restless leg
syndrome, osteoarthritis, bursitis, and obesity.

(Tr. 1038-39).

ALJ Scurry

determined that none of Plaintiff’s impairments met or equaled the severity of a
listed impairment. (Tr. 1141).
ALJ Scurry found Plaintiff had the residual functional capacity (RFC) to
perform work at the light exertional level until July 11, 2016. After that date,
Plaintiff had the RFC to perform sedentary work.

The sole non-exertional

limitation, both before and after July 2016, was that Plaintiff must avoid
concentrated exposure to unprotected heights. (Tr. 1042). At step four, the ALJ
determined Plaintiff was capable of performing her past relevant work as a library
director; therefore, she was not disabled. (Tr.1056-57).
The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in
5

formulating this Memorandum and Order. The following summary of the record
is directed to the points raised by Plaintiff and is confined to the relevant time
period.
1. Agency Forms
Plaintiff was born in February 1960, and was fifty-one years old in June
2011 at the time of her alleged onset date. (Tr. 140). Before the alleged onset
date, she completed three years of college, worked as a library director, and ran
her own yarn business. (Tr. 167; 181). She said fibromyalgia, lupus, diabetes,
depression, sleep apnea, restless leg syndrome, arthritis, iron deficiency, vitamin
D deficiency, and a heart condition all limited her ability to work.
Although she reported that she believed her conditions became severe
enough to keep her from working as early as January 2010, Plaintiff said she did
not quit working until June 2011. She explained that she stopped working then
because of her conditions and for other reasons, which included being fired from
her position as a library director. 4

(Tr. 166).

Around this time she also

significantly reduced the operation of her yarn business, citing multiple
hospitalizations in July 2011.

Thereafter, Plaintiff decreased her involvement

with her yarn business; it closed in 2012. (Tr. 181).
In November 2011, Plaintiff was five feet seven inches tall and weighed two
hundred thirteen pounds. (Tr. 166). She took numerous medications to treat
her conditions. (Tr. 169). During the relevant time period, Plaintiff indicated she

Plaintiff reported being fired for embezzlement of library funds. (Tr. 403-06). She was criminally
charged, convicted, and sentenced. (Tr. 873-74).

4

6

sought treatment for her conditions from several providers, including emergency
treatment, and that she had future appointments scheduled. (Tr. 170-78).
2. Evidentiary Hearing
Plaintiff was represented by counsel at the November 2016 hearing.
Plaintiff and a VE, Matthew Sprong, were both sworn and testified under oath.
(Tr. 1065-1107).
Plaintiff testified she experiences pain and stiffness and has constant issues
with different parts of her body. Her rheumatoid arthritis limits her use of her
arms, legs, knees, and feet. She also has an autoimmune disease that compounds
her conditions with additional symptoms. (Tr.1084-85).
Plaintiff described the location of her pain and what it feels like.

She

described pain that originates in her neck and radiates to her shoulders, elbows,
wrists, and hands; her pain is more severe on the right side of her body. Further,
she has sciatic nerve pain in her right hip; arthritis in her knees, ankles, and toes
bilaterally; and she experiences numbness in her toes that extends back to her
ankles. (Tr. 1088-89).
Then, Plaintiff discussed her other symptoms related to her fibromyalgia.
She explained she has irritable bowel problems causing constant diarrhea
approximately four days per week, intermittent dizziness, and vertigo. (Tr. 109091).
Plaintiff further explained that her pain affects her ability to concentrate on
tasks and remember.

She specifically said that when she volunteered at her

cousin’s newspaper, her pain made it hard to concentrate. She attributed her
7

memory problems to her autoimmune disease and fibromyalgia.

(Tr. 1093).

Plaintiff reads approximately one hour per day, but not for a continuous hour
because of her attention issues and her inability to sit in one position for long.
(Tr.1094-95). She said she often forgets what she reads and what people tell her.
(Tr. 1093).
Additionally, Plaintiff testified she is depressed and has been for several
years.

She takes Lexapro.

Despite attending therapy in the past and taking

medication, Plaintiff explained it is “very depressing when you can’t do what you
want to do.”

She said she feels “sad, hopeless, [and] frustrate[ed]” with her

situation, and wonders “if it’s worth going on like this.”

She also takes

medication for anxiety. It helps, but she still experiences anxiety attacks “once
every couple of months.” (Tr. 1094).
Furthermore, Plaintiff suffers from several adverse side effects as a result of
her numerous medications. Remicade injections make her sick afterwards with
flu-like symptoms. Lexapro causes mouth dryness, weight gain, and dizziness.
Klonopin, also referred to as clonazepam, “knocks [her] out,” but she
acknowledged that it is prescribed as a sleep aid. Her muscle relaxants “are very
mind altering.” Moreover, Plaintiff takes some medications solely to counter the
adverse side effects from her primary medications. For example, she takes folic
acid to prevent mouth ulcers caused by her methotrexate medication, which she
takes for her rheumatoid arthritis. (Tr. 1095).
Then, Plaintiff explained her physical abilities have deteriorated. She began
using a cane in 2015 because her rheumatoid arthritis and osteoarthritis have
8

made her knees “really bad.”

She receives treatment, including cortisone

injections and takes other medications, and because she has not had great
success with these treatments so far, she and her provider began discussions
about other treatment options, such as full replacement of her knee joints. (Tr.
1096).
Plaintiff also informed that her symptoms have resulted in other physical
limitations. She enjoyed knitting, but no longer does so because the pain in her
hands, elbows, and shoulders lasts several days afterwards making the activity no
longer “worth it.” She explained other activities that require the use of her hands
and arms also leave her in the same type of pain.
Additionally, she requires thirty minute breaks every hour or two when
sitting as she becomes very stiff, sometimes so stiff she cannot walk.

Adding

more difficulties, Plaintiff can only walk about five to ten minutes really slowly
before needing to stop. Between her sitting and standing troubles, she said, “…it’s
very hard to decide when and how to move to try to keep myself going.” She
added that she also physically struggles with transitioning from a sitting to
standing position, and she spends five to six hours per day lying down or reclined
with her knees elevated. (Tr. 1098). Plaintiff cannot carry or lift anything over
five pounds or so. Her arms are not strong and it hurts a lot to try to carry
something; she drops things when she attempts to lift or carry. (Tr.1097).
Last, the ALJ called VE Sprong to testify. The VE classified Plaintiff’s past
library director position as sedentary work under the DOT, but as medium work
as Plaintiff actually performed it. VE Sprong based his conclusion on Plaintiff’s
9

report admitted as exhibit 2E. ALJ Scurry posed three progressively restrictive
hypotheticals to the VE. The first two hypotheticals mirrored his ultimate RFC
finding.

VE Sprong testified that the individual in both the first and second

hypothetical questions could perform Plaintiff’s past work, library director, but
only as it is generally performed in the national economy. (Tr. 1102-03). The
final hypothetical included sedentary work, but had several more physical and
mental limitations than what ALJ Scurry ultimately found. (Tr. 1103-04). Upon
Plaintiff’s counsel’s question, VE Sprong testified that Plaintiff’s past work as a
library director would require frequent reaching, handling, and fingering. (Tr.
1105).
3. Medical Evidence
Plaintiff’s medical history and records are extremely lengthy and dense.
The records indicate Plaintiff suffers from several conditions that at times
intertwine and overlap.

Of most relevance are Plaintiff’s impairments of

rheumatoid arthritis, fibromyalgia, obstructive sleep apnea (OSA), restless leg
syndrome (RLS), and diabetes mellitus.

For context, the Court starts with

Plaintiff’s first record and provides a mostly chronological summary, except to
address impairments singly in order to clearly show its progression.
In early July 2011, Plaintiff presented at the Washington University sleep
center for a review of her OSA, restless leg syndrome (RLS), and insomnia. The
visit note indicated Plaintiff has been treated for OSA since 2005. A majority of
this visit was consumed by Plaintiff disclosing her fifteen-year tenure as a library
director was terminated approximately one week prior because of missing funds.
10

It was noted Plaintiff was taking two dopamine agonists, Requip and Mirapex, for
her RLS, and that both medications are known to have side effects that include
compulsive behavior.

Darla Darby, M.D., expressly noted that Plaintiff had

denied experiencing side effects and compulsive behaviors since starting Mirapex
in 2007 and Requip in 2009. Plaintiff further disclosed significantly increasing
her daily Mirapex dosage on her own initiative in an attempt to reduce her
adverse RLS symptoms; Plaintiff reported better symptom control with the
increased dose. Plaintiff explained that her compulsive behaviors at work began
around January 2010, but that she was afraid to disclose her compulsive
behaviors with Mirapex and Requip because she thought those medications would
be discontinued from her treatment plan and would result in her suffering from
severe rebound RLS symptoms. Since being fired, Plaintiff reported awakening
over ten times per night and awakening unrefreshed in the morning.
Consequently, Plaintiff’s treatment plan included immediately discontinuing
Mirapex, and weaning off Requip to ultimately discontinue it.

Lyrica and

clonazepam were prescribed as replacements. (Tr. 403-06).
Now, turning to Plaintiff’s rheumatoid arthritis and fibromyalgia, the record
is abundant with similar symptoms and pain-related complaints throughout the
relevant time period. Plaintiff’s commonly reported symptoms and pain-related
complaints included: diffuse joint discomfort (Tr. 536; 886; 889; 719-20; 152022; 1369; 1373; 1507; 1380; 1414-15; 1383; 1445; 1513-15; 1323; 1502; 1495;
1497; 1419; 1422; 1376-82); stiffness (Tr. 886; 889; 1495; 1500; 1504; 1507;
1519; 1513-15; 1523); pain and swelling of her hands and wrists (886; 889; 879;
11

1504; 1500; 1495; 1523; 1507; 1497; 1525); shoulder pain and discomfort (Tr.
1507; 1513-1517); and fatigue (Tr. 536; 892-95; 719-20; 869; 841; 1527; 1413;
1409; 1446; 1442; 1438; 1430; 1422; 1414-15; 1409).
In late 2011, Plaintiff reported hip pain caused by bursitis. (Tr. 651-53).
She also reported fatigue, diffuse joint discomfort, stiffness, and muscle
complaints. (Tr. 536). When she saw her rheumatologist in early 2012, it was
noted Plaintiff was tolerating her current medications.

However, she reported

recurrent bursitis pain in her right hip, and that she had occasional “bad days.”
Plaintiff received a hip injection for her bursitis pain. (Tr. 915; 919).
By August 2012, Plaintiff’s rheumatoid arthritis had flared a number of
times since she last saw her rheumatologist, Alfred Kim, M.D., in January 2012.
She was experiencing pain and swelling of her hands and feet.

She still had

residual symptoms in her feet and morning stiffness. She reported that engaging
in activity resulted in increased pain.

Upon examination, Plaintiff’s hand was

swollen, and synovitis was present in her right hand and wrist.

Dr. Kim

prescribed a trial period of prednisone. (Tr. 886; 889).
Plaintiff’s fibromyalgia was active in January 2013. She told Dr. Kim that
her pain had increased.

At this time, Plaintiff had bilateral bursitis hip pain;

wrist joint pain; and numbness in her third finger on her left hand. (Tr. 879).
Approximately two months later, Plaintiff met with a dietician after requesting a
referral because her weight reached two hundred and forty pounds. (Tr. 721-22;
713). Plaintiff lost about five pounds in the first week, but not long after, the
dietitian opined that Plaintiff’s ability to engage in physical activity was limited
12

because of chronic pain associated with her fibromyalgia, rheumatoid arthritis,
and other impairments like, OSA and RLS. (Tr. 713).
Her persistent pain intensified and her poor sleep quality had increased
around the middle of 2013. In June 2013, she reported that her arthritis was
causing her problems. Upon examination, her right knee joint was swollen, and
her cranial nerves extending into her neck were enlarged and tender. (Tr. 71920).

A few weeks later Plaintiff saw her rheumatologist, Dr. Kim, and she

reported experiencing persistent and increasingly worse fibromyalgia pain as well
as unrefreshing sleep despite taking Lyrica, Aleve, and nighttime Flexeril.

Dr.

Kim opined that her increase in pain resulted in her poor sleep quality, which was
possibly causing enhanced rheumatoid arthritis symptoms. He urged Plaintiff to
seek further recommendations from her physicians at the Washington University
sleep center. (Tr. 869).
Plaintiff complied with Dr. Kim’s instruction, and had an appointment at
the sleep center just days later. Like her other reports, she explained that she
concurrently began experiencing increased joint and muscle pain when her
daytime sleepiness and functioning worsened. She reported that her pain and
these symptoms had persisted for approximately two months, beginning around
May 2013. Her physician noted that Plaintiff’s symptoms persisted despite her
compliance with her treatment regimen consisting of Lyrica, clonazepam, and use
of a CPAP machine. (Tr. 860).
Unfortunately, by mid-August 2013, Plaintiff’s daytime sleepiness and
fatigue had persisted without improvement, and her rheumatoid arthritis troubles
13

had not just persisted, they increased. Her methotrexate, Plaquenil, Voltaren Gel,
and Aleve were no longer effective in alleviating her symptoms and pain. (Tr. 841;
717-18).

Plaintiff consistently reported that her decline suddenly began

approximately three months prior, around May 2013. (Tr. 841). Interestingly, it
was documented that Plaintiff was working part-time, two-to-four days per week,
at her cousin’s newspaper. (Tr. 838).
In January 2014, Plaintiff returned to the Washington University sleep
center for a follow-up visit. Her fibromyalgia was noted as improved with daily
Lyrica and Flexeril. However, Plaintiff’s severe fatigue persisted despite her CPAP
compliance. Based on examination findings, her rheumatoid arthritis treatment
regimen received a dosage increase to a current medication and the addition of a
new medication. (Tr. 1527).
By early August 2014, Plaintiff’s right knee pain recurred; inflammation
was apparent as it was warm and swollen with an increase of fluid present in the
joint cavity.

(Tr. 1520).

Plaintiff reported that Enbrel injections for her

rheumatoid arthritis had helped reduce her morning stiffness over the last two
months. However, she reported experiencing adverse injection site reactions; she
had severe pain and a knot that formed at the injection site.

(Tr. 1519).

Rheumatologist Kyle Sinclair, M.D. discontinued Plaintiff’s Enbrel and ordered
Humira as its replacement. (Tr. 1521-22). As a result of Plaintiff’s inflamed right
knee joint, Dr. Sinclair performed an arthrocentesis of her knee joint and sent the
collected fluid for analysis.

Dr. Sinclair assessed that Plaintiff’s rheumatoid

arthritis and fibromyalgia were of focus along with her long-term use of high-risk
14

medications. (Tr. 1521-22).
Also during August 2014, Plaintiff saw Rachel Darken, M.D. at the sleep
center. Her daytime sleepiness had only marginally improved over the last six
months; her sleepiness levels were still considered abnormally high. (Tr. 1442).
Given her knee issues, Dr. Darken opined it was best to evaluate Plaintiff at her
next visit to consider neurological imaging or possibly increasing Plaintiff’s
clonazepam dosage. (Tr. 1445).
Furthermore, in September 2014, Plaintiff presented to an emergency room
with right sciatic pain without trauma reportedly lasting for about three weeks.
She described her pain as shooting down from her back to her leg and extending
all of the way down to the bottom of her foot. She said the pain felt like a burning
sensation. She also reported having similar episodes in the past, and that steroid
injections relieved her pain.

The emergency room physician, Lihua Du, M.D.,

opined that her sciatica pain was likely secondary to degenerative joint disease.
Dr. Du increased Plaintiff’s Lyrica dosage. (Tr. 1369).
After starting Humira approximately two months earlier, Plaintiff visited a
hospital again in October 2014.

She went to Fayette County Hospital with

complaints of migraine headaches.

She was prescribed Imitrex and was

instructed to inform her rheumatologist that she began experiencing headaches
upon starting Humira, which is a biologic.

(Tr. 1365).

By November 2014,

Plaintiff’s Humira was discontinued because of her headaches. She switched to
Simponi, and Dr. Sinclair noted possibly switching her to Orencia at her next visit
if her rheumatoid arthritis did not improve with Simponi. (Tr. 1517).
15

Plaintiff saw Dr. Sinclair in February 2015. Plaintiff had mixed reports of
improvement and worsening while trying Simponi for her rheumatoid arthritis.
However, Plaintiff described experiencing persistent all-day stiffness, difficulty
opening jars, knee pain so intense it keeps her from exercising, and pain and
discomfort in her shoulders. Plaintiff also exhibited raised erythematous bumps
visible at the base of her neck near her hairline.

Dr. Sinclair discontinued

Plaintiff’s Simponi and replaced it with Orencia. (Tr. 1513-15).
Plaintiff’s knee pain persisted into March 2015. She saw James B. Sola,
M.D., with complaints of intermittent right knee pain that had persisted over the
past several months. Then, she reported that a week prior to this visit she fell
when she felt a sharp increase of pain as she was ascending steps.

Plaintiff

described her pain as more towards the medial aspect of her knee. (Tr. 1373).
She could not put pressure on her right leg for several days. (Tr. 1361). A MRI
demonstrated a tear to her medial meniscus in her right knee, and upon
examination, her knee was tender to the medial joint line and there was small
effusion in the knee joint. Despite her knee ailments, Dr. Sola noted that Plaintiff
had no instability to either knee. However, Dr. Sola did note that Plaintiff had
minor degenerative changes in her right knee.

After considering Plaintiff’s

rheumatoid arthritis history as a possible cause of her pain, and discussing
Plaintiff’s treatment options of injections versus knee surgery, Plaintiff informed
Dr. Sola that she wanted to pursue surgery with the hope that surgery would
result in more definitive relief for her knee pain. (Tr. 1373).
Plaintiff underwent knee surgery on May 5, 2015; there were no
16

complications.

Dr. Sola confirmed a tear of the posterior horn of the medial

meniscus in her right knee. (Tr. 1323). Approximately three weeks later, Plaintiff
followed up with Dr. Sola. Her knee was still causing her discomfort. Dr. Sola
noted Plaintiff’s portals looked good and she had full extension of her knee. He
prescribed a Medrol Dosepak and an anti-inflammatory medication. (Tr. 1376).
By mid-June 2015, Plaintiff returned to Dr. Sola. Her portals looked good,
she had full extension, and she said her knee was feeling much better. However,
small effusion was present and Dr. Sola noted Plaintiff did have some
degenerative changes. He instructed Plaintiff that he wanted to see her again if
her right knee flared back up so he could administer another cortisone injection.
(Tr. 1377).
Also in June, Plaintiff saw her rheumatologist and reported significant
diarrhea in addition to her persistent joint pain, stiffness, and sore wrists, knees,
elbows, and shoulders. Plaintiff reported back pain and her recent knee surgery.
(Tr. 1507). Plaintiff’s rheumatoid arthritis was not improving with Orencia, and
Dr. Sinclair made a note to reevaluate Orencia’s effectiveness on Plaintiff’s
symptoms at the next visit. Dr. Sinclair would determine then whether Plaintiff
should try a different rheumatoid arthritis medication. (Tr. 1508; 1510).
Then in August 2015, Plaintiff returned to Dr. Sola.

She reported

persistent discomfort in her right knee. Plaintiff was unable to fully extend her
knee and it was tender to the medial joint line. Dr. Sola assessed Plaintiff with
degenerative arthritis and noted degenerative changes in her knee.

Plaintiff

received a cortisone injection, and Dr. Sola ordered repeat radiographs for her
17

next visit.

(Tr. 1378).

Also during August, Plaintiff reported she had been

experiencing a loss of sensation in her toes in the evening, and that she sometimes
experienced burning pain in the morning. (Tr. 1434). She exhibited mild distal
sensory loss upon examination. (Tr. 1437).
When Plaintiff returned to her rheumatologist, Dr. Sinclair, in September
2015, he noted Plaintiff’s fibromyalgia was stable with Lyrica and Flexeril. (Tr.
1507).

However, he noted that Plaintiff’s rheumatoid arthritis was not; she

reported that her morning stiffness and hand pain persisted despite taking
Orencia. (Tr. 1504). Dr. Sinclair found that all five of the rheumatoid arthritis
medications she tried were either ineffective, caused adverse reactions, or did not
provide complete control of her disorder. Yet, Dr. Sinclair wanted to wait a little
longer before deciding whether Plaintiff should switch from Orencia to a different
medication. (Tr. 1507).
In January 2016, Plaintiff told Dr. Sinclair she was feeling worse overall. In
fact, Plaintiff contacted his office before this appointment to ask that her Orencia
be discontinued and replaced.

Unfortunately, insurance authorization issues

prevented her from obtaining the replacement medication before this visit. While
taking Orencia, Plaintiff’s morning stiffness along with her hand pain and swelling
persisted. Additionally, she now reported becoming stiff during the day with most
of her pain occurring at the end of the day. Furthermore, both of her wrists were
bothering her, and her “intermittent” knee pain had become so severe that at
times she was unable to walk. (Tr. 1500). Plaintiff’s Orencia was discontinued
and replaced with Remicade injections. She was encouraged to start exercising.
18

(Tr. 1502).
Two months later, Plaintiff returned to the sleep center in March 2016.
She met with Dr. Darken, who noted Plaintiff’s abnormally high sleepiness levels
persisted and her weight had increased. Plaintiff thought her newly prescribed
Remicade injections might be contributing to her weight gain. Plaintiff added that
she was limited from using her home treadmill because of her rheumatoid
arthritis discomfort. (Tr. 1429). Last, Plaintiff reported that her sensory loss in
her toes with intermittent burning pain had become increasingly frequent over the
last six months or so.

(Tr. 1430).

Dr. Darken opined Plaintiff’s rheumatoid

arthritis, diabetes, and vitamin B12 deficiency could be related to Plaintiff’s
sensory loss. (Tr. 1432).
Plaintiff returned to her rheumatologist in April 2016. She reported her
stiffness, bilateral hand pain with swelling, and knee pain had persisted without
improvement. She also reported persistent numbness and tingling with sharp
shooting pains throughout her body despite taking Lyrica. Plaintiff also said that
the torn meniscus in her right knee that she sustained over a year earlier was
preventing her from regularly exercising. (Tr. 1495). Upon examination, Plaintiff
exhibited bilateral tenderness to her wrists and paraspinal muscles.
crepitus and tenderness were observed in her right knee.

(Tr. 1497).

Both
The

rheumatologist noted that Plaintiff did not have great improvement with her
rheumatoid arthritis symptoms after switching to Remicade; the new plan was to
increase her Remicade dose and monitor Plaintiff for improvements as well as
refer Plaintiff to a pain clinic for her fibromyalgia. (Tr. 1498-99).
19

Plaintiff saw Dr. Sola in May 2016, approximately one year after her right
knee surgery and approximately fourteen months after her right knee injury.
Plaintiff again reported persistent discomfort in her right knee. She lacked full
extension and her knee was tender to the medial joint line.

Plaintiff received

another cortisone injection and was instructed to return as needed. (Tr. 1379).
After being referred by her rheumatologist in May 2016, Plaintiff was able
to meet with Lesley Rao, M.D., at the Washington University Pain Management
Center that June.

Dr. Rao noted Plaintiff’s strength was four-out-of-five

throughout and that she had numbness in her feet bilaterally. After assessing
Plaintiff’s condition, she prescribed Baclofen to address the neuropathic, spastic
component of Plaintiff’s pain.

Dr. Rao planned to make a physical therapy

referral so Plaintiff’s pain could be evaluated and a treatment plan could be
devised. (Tr. 1427).
Then, on July 12, 2016, Plaintiff returned to Dr. Sola, but this time with
complaints of discomfort in her left knee for nearly a month. Her left knee was
tender to the medial joint line and moderate effusion was present in the knee
joint. A McMurray’s examination appeared positive, and the radiographs showed
possible degenerative changes. Dr. Sola ordered a MRI to determine if she had a
meniscal tear. (Tr. 1380). When Plaintiff returned two weeks later, her left knee
discomfort persisted. Dr. Sola noted Plaintiff’s MRI showed degenerative changes,
but no meniscal tear. Dr. Sola opined Plaintiff’s symptoms were related to an
arthritis flare-up. Plaintiff underwent a cortisone injection to her left knee. (Tr.
1381).
20

Plaintiff told Dr. Sola during a follow-up visit in August 2016 that the
cortisone injection only helped alleviate her knee discomfort for about two weeks.
Dr. Sola opined that Plaintiff’s best treatment options included continuing with
cortisone injections or viscosupplementation because he did not believe an
arthroscopy would be very successful long-term. (Tr. 1382).
Plaintiff returned to Dr. Rao at the Washington University Pain Management
Center for a follow up on September 1, 2016. Plaintiff reported benefit from the
newly added Baclofen, but she said that she stopped taking her morning Baclofen
dose because it made her sleepy. Plaintiff also complained of bilateral knee pain
and difficulty walking because of her worsening rheumatoid arthritis pain.
Plaintiff further explained, like she had to Dr. Sola in May 2016, that steroid
injections in her knees only resulted in short-term relief.

She reported and

exhibited limited range of motion with tenderness in her knees bilaterally as well
as persistent numbness in her feet bilaterally. (Tr. 1419; 1422). Dr. Rao made a
note to consider diagnostic nerve blocks at Plaintiff’s next visit, and Dr. Rao
decreased Plaintiff’s morning Baclofen dosage to help with her sleepiness. (Tr.
1422).
A week later, Plaintiff met with Dr. Darken at the sleep center. Plaintiff told
her that her RLS was not any better or any worse. Plaintiff’s abnormally high
sleepiness levels persisted. Plaintiff also reported no longer working part-time at
her cousin’s newspaper because of her joint issues. Despite no longer working
part-time, Plaintiff reported invariably feeling exhausted at the end of each day.
Dr. Darken noted that Plaintiff’s neuropathy also persisted, and that the location
21

of her symptoms, which originally presented in her toes, had expanded from
Plaintiff’s toe region to now include her mid-foot region. (Tr. 1414-15).
Furthermore, Plaintiff’s left knee discomfort persisted through late
September 2016. Her left knee was tender to the medial joint line, but she did
not have gross instability. She had another cortisone injection. Plaintiff wanted
to try viscosupplementation if the cortisone injection did not give her long-lasting
relief. (Tr. 1383).
Then, about one month before her second evidentiary hearing, Plaintiff told
Dr. Rao in October 2016 that she was more concerned about her generalized
pain, which she described as burning and aching sensations. Plaintiff reported
having a lot of trouble sleeping and presumed recent weather changes were
related to her increased general pain. Plaintiff also indicated that she was due for
another Remicade infusion to treat her rheumatoid arthritis. (Tr. 1409). Upon
examination, Plaintiff exhibited

tenderness

to

her cervical spine, upper

extremities, thoracic spine, lumbosacral spine, and lower extremities. (Tr. 1412).
Dr. Rao prescribed a nerve pain medication, nortriptyline, to treat Plaintiff’s pain
and help her sleep. (Tr. 1413).
As to Plaintiff’s diabetes mellitus and related neuropathy and pain, in
August 2015 Plaintiff reported she had been experiencing loss of sensation in her
toes in the evening, and she sometimes noticed burning pain in the morning. (Tr.
1434). It was documented that Plaintiff exhibited mild distal sensory loss. (Tr.
1437). Although her diabetes was noted to be under “good control” (Tr. 1434),
Plaintiff was scheduled to undergo laboratory testing for neuropathy. (Tr. 1437).
22

Plaintiff’s symptoms and pain persisted in March 2016. Consistent with
her August 2015, she told Dr. Darken in March 2016 that she had been
experiencing these symptoms for the last six months or so.

(Tr. 1430).

Dr.

Darken opined that Plaintiff’s rheumatoid arthritis and her diabetes mellitus
could be related to her sensory loss and the location of her symptoms, which
originally presented in her toes, but had now extended to her mid-foot region.
(Tr. 1432). Plaintiff’s neuropathy persisted in May 2016 and in September 2016,
when she reported that the location of her symptoms presented in her toes to and
extended to her mid-foot region. (Tr. 1414-15).
Last, although the record does not mention the following medical records in
a specific context, Plaintiff had similarly reported symptoms of bilateral foot
numbness on a few occasions dating back to November 2011. (Tr. 307-09; 30102; 414-17).

Around one year later, in January 2013, Plaintiff told her

rheumatologist that she had been experiencing finger numbness in her left hand.
(Tr. 879).
4. State Agency Medical Consultants’ RFC Assessments
David Mack, M.D., reviewed Plaintiff’s file and completed a physical RFC
assessment form in December 2011.

(Tr. 564-71).

Dr. Mack determined

Plaintiff’s exertional limitations included only occasionally lifting and carrying up
to twenty pounds, frequently lifting and carrying up to ten pounds, standing and
walking about six hours in an eight-hour work day, sitting about six hours in an
eight-hour work day, and the ability to push and pull without limit. (Tr. 565). He
assessed that Plaintiff did not have limitations related to posture, manipulation,
23

vision, and communication.

He concluded Plaintiff’s only environmental

limitation consisted of avoiding concentrated exposure to hazards such as
“machinery, heights, etc.” (Tr. 566-68).
Dr. Mack based his opinion upon records received dating from August
2010 through November 17, 2011. (Tr. 565-66). He noted Plaintiff’s medical
history included diagnoses of lupus, non-insulin dependent diabetes mellitus,
hypertension, depression, borderline cardiomegaly, post coronary artery bypass
graft, sleep apnea, restless leg syndrome, intermittent sleep onset insomnia,
carpometacarpal arthrodesis, and osteoarthritis.

Dr. Mack said Plaintiff’s

statements are partially credible regarding lupus, fibromyalgia, sleep apnea,
severe depression, restless leg syndrome, diabetes, arthritis, heart condition, and
iron and vitamin D deficiencies. He opined Plaintiff was partially credible because
although she reported fatigue with activities of daily living and only being able to
walk about one block, her gait and range of motion were normal at exams. (Tr.
569). There was no further explanation. (Tr. 564-571).
Four months later in April 2012, C. A. Gotway, M.D., reconsidered Dr.
Mack’s December 2011 RFC assessment of light work with a slight revision that
included noting new evidence was received and considered.

Dr. Gotway

acknowledged Plaintiff’s history of a calcaneal fracture, and the results from
several tests and imaging reports.

Ultimately, he concluded Dr. Mack’s

assessment was accurate, and affirmed the RFC assessment of light work. Dr.
Gotway did not offer any further explanation. (Tr. 691-93).
Craig Billinghurst, M.D., reviewed Dr. Mack’s 2011 RFC assessment in
24

August 2012. He listed nine of Plaintiff’s medical providers, and minimally listed
seven examination dates ranging between July 2011 and February 2012.

Dr.

Billinghurst concluded Plaintiff’s statements were partially credible. He included
a note that Plaintiff used a cane and passed out regularly, and some of her daily
activities. He acknowledged Plaintiff feels her impairments affect her ability to lift,
squat, bend, walk, kneel, use her hands, and remember.

However, without

further explanation, Dr. Billinghurst agreed with Dr. Mack’s 2011 RFC of light
work. (Tr. 695-97).
5. Previous Remand Order
This Court entered a Memorandum and Order to remand this case to the
Commissioner in March 2016 upon the parties’ joint motion for remand.

In

relevant part, the order directed that the ALJ assigned would “(1) further evaluate
the nature and severity of Plaintiff’s fibromyalgia; (2) further evaluate the medical
opinion evidence of Dr[]. Kuester []; (3) reassess Plaintiff’s residual functional
capacity; (4) if warranted, obtain supplemental evidence from a vocational expert;
and (5) issue a new decision.” This Court noted then that Plaintiff’s disability
application had been pending for nearly four and one-half years. (Tr.1153-54).
Analysis
Of Plaintiff’s five issues, the Court turns to her second. She argues that
ALJ Scurry’s subjective symptom analysis is flawed.

Plaintiff posits that ALJ

Scurry’s flawed analysis prevented him from building the requisite accurate and
logical bridge from the evidence to his conclusion that Plaintiff’s “statements… are
not entirely consistent with the medical and other evidence…” (Tr. 1054)
25

culminating in an RFC determination that was not supported by substantial
evidence.
In short, the Court agrees with Plaintiff. ALJ Scurry’s reliance upon scarce
objective medical evidence in conjunction with his lacking evaluation of the
evidence are why the Court must reverse.
In reviewing ALJ Scurry’s decision, the Court will read it as a whole. Rice
v. Barnhart, 384 F.3d 363, 370 n.5 (7th Cir. 2004) (“Because it is proper to read
the ALJ’s decision as a whole, and because it would be a needless formality to
have the ALJ repeat substantially similar factual analyses…, we consider the
ALJ’s treatment of the record evidence in support of…his conclusions...”)
(internal citation omitted). Distinctly, “[t]he ALJ is not required to address every
piece of evidence or testimony presented, but must provide a ‘logical bridge’
between the evidence and his conclusions.” Terry v. Astrue, 580 F.3d 471, 475
(7th Cir. 2009) citing Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
Without an adequate explanation, neither the applicant nor subsequent reviewers
will have a fair sense of how the applicant’s testimony is weighed.

Steele v.

Barnhart, 290 F.3d 936, 942 (7th Cir. 2002). Therefore, it is only when the ALJ's
determination lacks an explanation or support that a reviewing court will declare
it to be “‘patently wrong,’” and deserving of reversal. Elder v. Astrue, 529 F.3d
408, 413–14 (7th Cir. 2008) citing Jens v. Barnhart, 347 F.3d 209, 213–14 (7th
Cir. 2003) (quoting Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000)).
In making a disability determination, the ALJ must consider a claimant’s
statements about her symptoms, such as pain, and how the symptoms affect her
26

daily life and her ability to work. See 20 C.F.R. § 404.1529(a); SSR 16-3p, 2017
WL 5180304 (Oct. 25, 2017). Subjective allegations of disabling symptoms alone
cannot support a finding of disability. Id. Therefore, the ALJ must weigh the
claimant’s subjective complaints, the relevant objective medical evidence, and any
other evidence, including the 20 C.F.R. § 404.1529(c)(3) factors. See 20 C.F.R. §
404.1529(c)(3); see also SSR 16-3p, 2017 WL 5180304, at * 3.
In determining whether ALJ Scurry’s symptom evaluation was proper, the
reviewing court’s duty is to examine whether an ALJ’s subjective symptom
determination is reasoned and supported.

See Jens, 347 F.3d at 213–14;

Powers, 207 F.3d at 435. The Court will uphold an ALJ’s subjective symptom
evaluation if the ALJ gives specific reasons for that finding, supported by
substantial evidence. Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009).
Here, as to medical evidence, ALJ Scurry reduced over five years of
Plaintiff’s

objective

medical

findings

unilluminating characterizations.

down

to

two

similarly

broad

and

He only twice mentioned that Plaintiff’s

“[p]hysical examinations repeatedly show normal breathing and heart rate with
mostly full strength and normal range of motion. Gait is normal throughout most
of the record.”

(Tr. 1056; 1055).

Then, ALJ Scurry concluded this objective

medical evidence “…indicat[ed] that additional limitations are unnecessary.” (Tr.
1055).
First, ALJ Scurry was required to explain how Plaintiff’s heart, lungs,
strength, range of motion, and gait were inconsistent with Plaintiff’s statements or
other evidence. He provided a robust summary of the medical records (Tr. 103927

54), but he never provided an analysis explaining how the scarce medical evidence
he specifically relied upon supported his conclusion that Plaintiff’s statements
concerning the intensity, persistence and limiting effects of her symptoms were
inconsistent with the objective medical evidence. Contrary to the Commissioner’s
argument, ALJ Scurry’s robust recitation of the evidence cannot be considered a
proper discussion; “[s]ummarizing the evidence is not the equivalent of providing
an analysis of the evidence.” Perry v. Colvin, 945 F.Supp.2d 949, 965 (N.D. Ill.
2013).
Second, the ability to exhibit normal gait, range of motion, and maintain
strength is not inherently inconsistent with her claims of disabling pain related to
her fibromyalgia and rheumatoid arthritis. Further, “…[n]o objective test exists
for fibromyalgia…” Holmstrom v. Metro Life Ins. Co., 615 F.3d 758, 768–69 (7th
Cir. 2010), and “[t]here are no laboratory tests for the presence or severity of
fibromyalgia. Its cause or causes are unknown, there is no cure, and, of greatest
importance to disability law, its symptoms are entirely subjective.” Sarchet v.
Chater, 78 F.3d 305, 306 (7th Cir. 1996).

“The extent of fibromyalgia pain

cannot be measured with objective tests aside from a trigger-point assessment.”
See Vanprooyen v. Berryhill, 864 F.3d 567, 568 (7th Cir. 2017).
Based on the above, ALJ Scurry’s reliance upon such scarce medical
evidence coupled with his lacking explanation are insufficient to support his
conclusion.

Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)(“…failing to

explain how the evidence…recited contradicts Plaintiff’s allegations constitutes
error.”).
28

The Court will now review whether ALJ Scurry’s determination that
Plaintiff’s statements concerning her symptoms “are not entirely consistent with
the…other evidence of record” is reasoned and supported by substantial evidence.
When the medical evidence does not substantiate a plaintiff’s statements about the
intensity, persistence, and limiting effects of his or her symptoms, evidence of the
following factors must be considered:
(1)
(2)
(3)
(4)
(5)
(6)
(7)

The individual’s daily activities;
Location, duration, frequency, and intensity of pain or other symptoms;
Precipitating and aggravating factors;
Type, dosage, effectiveness, and side effects of any medication;
Treatment, other than medication, for relief of pain or other symptoms;
Other measures taken to relieve pain or other symptoms; and
Other factors concerning functional limitations due to pain or other
symptoms.

See 20 C.F.R. § 404.1529(c)(3); see also SSR 16-3p, 2017 WL 5180304, at * 3.
See Thomas v. Colvin, 745 F.3d 802, 806-07 (7th Cir. 2014); see Villano v.
Astrue, 556 F.3d 558, 562 (7th Cir.2009); see also Hearan v. Berryhill, No. 17 C
0542, 2018 WL 3352657, at *6 (N.D. Ill. July 9, 2018).
Here, ALJ Scurry claims he “…considered the following factors during the
relevant period, in accordance with SSR 16-3p.” However, he expressly admits
that he only “…considered the [Plaintiff’s] activities of daily living, as shown by
[her] hearing testimony and the medical records.”

He said, “The location,

duration, frequency and intensity of the symptoms are taken into account by the
[RFC].” (Tr. 1055). ALJ Scurry declared that the “record does not warrant any
additional limitations[]” because of Plaintiff’s “…ability to perform graphic design
at a newspaper, complete one hundred hours of community service, tutor grade
29

school children, care for dogs, and assist customers at her own business.” He
added, “The [Plaintiff] reports that she enjoys work and that she can make it
through an eight-hour day. She repeatedly applies for jobs and works throughout
the relevant period, and the only reason she lost her prior job was due to her
commission of a felony.” (Tr. 1056).
Plaintiff

argues

ALJ

Scurry’s

conclusion

that

her

statements

are

inconsistent with the other evidence is not supported by substantial evidence.
ALJ Scurry certainly relies on a number of Plaintiff’s activities in an effort to
support his conclusion that her statements are not consistent with those
activities.

However, ALJ Scurry improperly relied on these activities while

overlooking and misstating evidence. Consistently, ALJ Scurry’s explanations are
lacking, and to make matters worse, he repeatedly failed to confront evidence
contrary to his conclusion and explain why it was rejected.

Indoranto v.

Barnhart, 374 F.3d 470, 474 (7th Cir. 2004).
For example, ALJ Scurry mentioned several times that Plaintiff tutored
grade school children to support his conclusion when discussing her mental and
physical impairment-related limitations. (See Tr. 1040; 1055; 1056). However,
ALJ Scurry completely neglected to confront Plaintiff’s 2016 testimony. Her
uncontroverted testimony was that she only tutored grade school children when
she was employed by the library. (Tr. 1082). Because Plaintiff’s alleged onset
date of disability is after her employment at the library was terminated, the
tutoring activity pre-dates when she claims disability putting it outside of the
relevant time period. Therefore, ALJ Scurry’s reliance on an irrelevant activity
30

without confronting undermining evidence was illogical and improper.
Further, ALJ Scurry similarly mentioned that Plaintiff knitted. (Tr. 1055).
However, ALJ Scurry never addressed contradictory evidence that Plaintiff
reported as early as 2011 that she limited her knitting until she ultimately had to
quit knitting during the relevant time period because she experienced too much
joint, shoulder, elbow, and hand pain. (Tr. 73; 105; 195-202; 204; 1516; 1096).
Plaintiff even testified in 2016, before ALJ Scurry, that knitting and any type of
activity that required the use of her hands and upper extremities left her in pain
for several days after engaging in the activity. (Tr. 1096; 1079). Because ALJ
Scurry failed to confront this contradictory evidence, and he never explained why
it was rejected, it cannot be said that Plaintiff’s knitting supports ALJ Scurry’s
conclusion.
As to Plaintiff’s ownership of a yarn store, ALJ Scurry claimed that her
duties supported his conclusion that no additional limitations were warranted.
(Tr. 1056). However, Plaintiff reported to the agency and directly testified that
she significantly reduced the operation of her yarn business around the latter half
of 2011 because of hospitalizations and her health.

Thereafter, Plaintiff

decreased her involvement by delegating most of the operations to her adult
daughter until the yarn store closed in 2012. (Tr. 181; 1076). Plaintiff’s limited
involvement and the 2012 closure of her business occurred incredibly early in the
relevant period, yet ALJ Scurry mentioned this piece of evidence as if Plaintiff
operated the store throughout most of the relevant period. (See Tr. 1039; 1055;
1056). He failed again to confront and explain why he rejected contrary evidence,
31

and he never explained how her business ownership until 2012 undermined her
statements concerning her impairment-related pain and symptoms.

Absent a

reasoned and supported conclusion, the Court cannot discern how this shows any
inconsistency with Plaintiff’s statements concerning the intensity, persistence and
limitations of her symptoms, or that additional limitations were unnecessary.
ALJ Scurry also mentioned Plaintiff’s other activities such as community
service, part-time job applications, and her uncompensated part-time work at her
cousin’s newspaper. First, ALJ Scurry failed to explain why these activities and
the circumstances surrounding these activities were inconsistent with Plaintiff’s
allegations. Second, he failed to confront and explain why he rejected evidence
contrary to his conclusion, including Plaintiff’s testimony regarding these activities
and her limitations. Finally, ALJ Scurry also misstated some evidence related to
these activities.
For example, ALJ Scurry never confronted or discussed Plaintiff’s
testimony that she had to complete one hundred hours of community service and
look for part-time jobs as a part of her criminal sentence after she entered into
her 2012 negotiated guilty plea agreement.

(Tr. 1080-81; 1084).

Further,

Plaintiff’s community service only took a few hours per day, a couple days a week
and she only went when she felt healthy enough. Plaintiff completed her service
hours in approximately four months; whereas, the relevant time period here
spans over five years. The flexibility Plaintiff had, and small amount of time it
required does not seem to comport with the demands of full-time employment.
Additionally, Plaintiff testified that her activities mainly consisted of playing games
32

with and reading to the nursing home residents, and tallying her church’s
donations and bills. (Tr. 1081). Absent ALJ Scurry’s explanation and in light of
this evidence, his conclusion is insufficiently supported.
As to Plaintiff’s part-time work for her cousin’s newspaper, the ALJ again
largely ignored Plaintiff’s testimony and other evidence, as well as failed to explain
how this activity was inconsistent with her allegations. Stunningly, throughout
ALJ Scurry’s entire decision he only mentioned one portion of Plaintiff’s 2016
testimony: “…[Plaintiff] admitted to working for her cousin’s newspaper during
the hearing.

She said she only worked two days per week throughout the

employment and only worked half days….from April 2015 until October 2016.”
(Tr. 1056).

In contrast, ALJ Scurry wrote, “Wholly inconsistent with her

testimony,” is an August 2013 medical examination record that documents
Plaintiff was working part-time at her cousin’s newspaper. ALJ Scurry said that
record says “she was working 2-4 days per week and said they were 7-8 hour
days. She ultimately reduced to two days per week, but she continually said that
she was able to make it through the day and enjoyed the work.”

(Tr. 1056).

However, ALJ Scurry never explained how the two statements he compared were
relevant to his subjective symptom evaluation or her allegations of disabling pain,
and he again failed to confront evidence contrary to his conclusion.
For starters, when the adverse credibility finding is premised on
inconsistencies between a 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).

Additionally, SSR 16-3p instructs that subjective
33

statements made by a plaintiff obtained at a hearing should directly relate to
symptoms that plaintiff alleged, and that adjudicators must limit their evaluations
to a plaintiff’s statements about his or her symptoms and the evidence in the
record that is relevant to a plaintiff’s impairments. Here, however, the perceived
inconsistency between the two statements surrounds how often and when Plaintiff
might have started working part-time at the newspaper. Without some type of
explanation by ALJ Scurry, this is not a discrepancy that sheds much light on
Plaintiff’s impairment-related pain or symptoms.
Additionally, as the Seventh Circuit has repeatedly said, “There is a
significant difference between being able to work a few hours a week and having
the capacity to work full time.” Larson v. Astrue, 615 F.3d 744, 752 (7th Cir.
2010).

See also Vanprooyen v. Berryhill, 864 F.3d 567, 571 (7th Cir.

2017)(Part-time work is not good evidence of ability to engage in full-time
employment…). Here, Plaintiff explained she was not paid and ALJ Scurry found
Plaintiff had not engaged in SGA during the relevant time period. He also never
addressed that she reported having difficulties performing some tasks because of
her pain. (Tr. 1077-79). Without an explanation, ALJ Scurry’s conclusion here is
unsupported.
Last, a “subjective symptom evaluation is not an examination of an
individual’s character.” SSR 16-3p, 2017 WL 5180304, at *2; See Krontz v.
Berryhill, No. 1:17-CV-305-PRC, 2018 WL 3738249, at *8 (N.D. Ind. Aug. 7,
2018). Without an explanation by ALJ Scurry, and given his failure to identify
supportive evidence, ALJ Scurry appears more concerned with impermissibly
34

evaluating Plaintiff’s overall character or truthfulness than with focusing on
whether the intensity and persistence of Plaintiff’s symptoms limit her ability to
perform work-related activities on a full-time basis.
Finally, it is clear that ALJ Scurry completely ignored abundant evidence
related to many of the remaining factors. His failure to consider this evidence is
also an error.

For example, there is evidence that her symptoms persisted

despite her treatment compliance, and that she chose surgery over continuing
with less invasive treatment because she wished to achieve more definitive relief
from her pain.

(Tr. 1373).

Further, ALJ Scurry completely failed to discuss

ample evidence about Plaintiff’s medications, like type, dosage, effectiveness, and
side effects and whether this evidence was consistent with her statements and
other evidence. During the relevant time period, Plaintiff’s rheumatoid arthritis
treatment alone endured at least five different medication changes; a number of
dosage changes; and some even caused Plaintiff to experience adverse side effects.
Yet, ALJ Scurry never discussed whether evidence of these factors was consistent
with Plaintiff’s statements concerning the nature of her symptoms and pain.
Because ALJ Scurry improperly analyzed evidence and failed to support his
reasons with substantial evidence, his subjective symptom determination itself
must be considered patently wrong. See Craft v. Astrue, 539 F.3d 668, 680 (7th
Cir. 2008).

We cannot deem the error harmless, because it impacted several

aspects of ALJ Scurry’s findings with respect to Plaintiff’s RFC, including a
finding of greatest consequence here, Plaintiff’s ability to perform past relevant
work or to adjust to other work. Therefore, this case must be remanded to the
35

agency for further proceedings. See Ghiselli v. Colvin, 837 F.3d 771, 778–79
(7th Cir. 2016).
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
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 Terrie E. G.’s application for
DIB 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:

August 28, 2018
s/Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

36