Stewart v. Commissioner of Social Security

Filing 20

OPINION AND ORDER: This case is REMANDED to the Commissioner of Social Security for further proceedings consistent with this Opinion and Order. Signed by Judge Joseph S Van Bokkelen on 7/23/13. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA

TERESA STEWART,
Plaintiff,
v.

Civil Action No. 1:12-CV-186-JVB

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

OPINION AND ORDER
Plaintiff, Teresa Stewart, seeks judicial review of the final decision of the Defendant,
Michael J. Astrue, Commissioner of Social Security, who denied her applications for Disability
Insurance Benefits and Supplemental Social Security Income under the Social Security Act. For
the following reasons, the Court remands this case to the Social Security Administration for
further proceedings consistent with this Opinion.

A. Procedural Background
Plaintiff applied for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income disability (“SSI”) benefits on February 26, 2009, alleging a disability onset date of May
29, 2008. (R. at 168–176.) Her application was initially denied on June 30, 2009, (R. at 101–
103), as well as upon reconsideration on September 30, 2009 (R. at 111–113). Plaintiff then

requested a hearing before an Administrative Law Judge (“ALJ”). (R. at 117–118.) The hearing
was held before on August 23, 2010. (R. at 49–81.) On April 13, 2011, the ALJ determined the
Plaintiff was not disabled. (R. at 27–40.) The ALJ initially found that Plaintiff does not have an
impairment, or combination of impairments, that qualify as per se disabling. (R. at 30.) In
defining Plaintiff’s residual functioning capacity (“RFC”), the ALJ found that she is unable to:
perform work that imposes close regimentation of production; handle intense contact
with the public or strangers; work without the opportunity to sit or stand; walk or stand
for more than 50% of the workday; reach extreme postures more than occasionally; walk
or stand for longer than twenty minutes at a time; lift and carry greater than twenty
pounds occasionally or ten pounds frequently; perform work requiring constant
manipulation with the hands or fingers; work in atmospheric concentrations of dust,
smoke, or fumes; work in temperature or humidity extremes; work in hazardous
conditions; work around vehicles moving in close quarters; and reach more than ninety
degrees of cervical rotation.
(R. at 32.) According to the ALJ, this RFC classification allowed for Plaintiff to perform a
reduced range of unskilled, light work. (R. at 38.) The ALJ’s opinion became final when the
Appeals council denied Plaintiff’s request for review on May 16, 2012. (R. at 1–4.)
Plaintiff was also denied DIB and SSI in 2005. (R. at 86.) A different ALJ found at that time
that Plaintiff had an RFC that was consistent with mildly limited, sedentary work. Given
Plaintiff’s age at the time, forty-nine, Medical Vocational Rule 202.21 directed that Plaintiff was
not disabled. See 20 CFR § 404, Subpt. P, App. 2. If Plaintiff was found to have the same RFC in
the current decision, at an age of 52, Medical Vocational Rule 202.21 would direct that Plaintiff
was disabled and would be entitled to benefits. See Id.

B.

Factual Background

(1)

Plaintiff’s Background and Testimony

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Plaintiff was born in 1958. (R. at 316.) She completed one year of college at Ivy Tech (R. at
55) and some job-related training (R. at 55–56.) Since the alleged onset date of May 29, 2008,
Plaintiff has not had any income or employment. (R. at 179.) Plaintiff was last employed in 2005
as a receptionist and earned $1,260 per month. (R. at 202.) As a receptionist, Plaintiff answered
switch boards, met vendors, ordered lunches, and generally managed the office. (R. at 217.) She
was able to lift fifty pounds and regularly lifted twenty-five pounds. (Id.) She spent several hours
walking and standing but spent the majority of the time sitting. (Id.) Before she was a
receptionist, Plaintiff’s longest held job was as a restaurant manager. (R. at 202.) She held this
position for fourteen years. (Id.)
Plaintiff testified that she stopped working because she could no longer get out of bed in the
morning and could not keep up with a regular schedule. (R. at 57.) She stated that one of her
main problems is not being able to think properly due to her short term memory loss. (R. at 57.)
She thinks she could go back to work if she was able to get her memory back but doubts that will
ever happen. (Id.)
Beyond her mental problems, Plaintiff claimed that she is in nearly constant pain and suffers
from extreme fatigue. (R. at 64–69.) Plaintiff further testified that these ailments not only
affected her ability to work but also affected her ability to carry out normal daily activities. (R. at
68–71.) She alleges that she has trouble opening bottles (R. at 68–69), cannot look at a computer
screen for more than ten minutes (R. at 69), and, on a “bad day”, cannot get out of bed. (R. at
70.) Her household chores are limited to cleaning off the table after dinner a few times a week
(R. at 71.) and keeping her bed made (Id.)

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(2)

Medical Evidence
On May 29, 2008, the alleged disability onset date, Plaintiff underwent lumbar

decompression and fusion surgery because of a herniated disk that was severely compressing a
nerve. (R. at 311–312.) The surgery initially alleviated some of the pain (R. at 349), but she later
reported that the nerve pain returned and may have even gotten worse (R. at 340, 342). Medical
reports have documented a history of Plaintiff suffering from neck, back, and shoulder problems.
(See R. at 340, 345, 358, 385, 534, 602.)
Plaintiff also endures extreme, chronic fatigue. She has reported to psychologists that some
days she cannot get out of bed (R. at 391), and that she can only work for ten to fifteen minutes
before needing to rest. (R. at 423.) In addition, Plaintiff suffers from anxiety and depression,
which may contribute to her fatigue. However, a rheumatologist, Dr. Campbell attributes a large
amount of the fatigue to severe fibromyalgia. (R. at 489–490.)

(3)

Vocational Expert Testimony
Vocational expert Charles McBee (“VE”) testified at Plaintiff’s August 23, 2010, hearing

before the ALJ. (R. at 72–79.) The ALJ read to the VE a hypothetical set of limitations that
closely resembled Plaintiff’s final RFC. (R. at 73–74.) Based upon these limitations, the VE
testified that this person could not perform any of Plaintiff’s past work. (R. at 74.) The VE,
however, did cite ten potential jobs that existed in significant numbers in both the Indiana and
national economies. (R. at 75–78.)
Plaintiff’s attorney then asked the VE a series of questions that added additional limitations
to the ALJ’s hypothetical. (R. at 76–79.) The attorney first asked if jobs would exist that

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accommodated “no more than occasional hand and finger manipulation” as opposed to “no
constant manipulation”. (R. at 76.) The VE testified that, even with this additional limitation,
there would still be jobs that existed in significant numbers. (R. at 76–77.) The attorney then
added the limitation of “no manipulation of the hands and fingers” at all. (R. at 78.) The VE
stated that there are jobs that exist, but only in limited numbers. (R. at 78.)
The attorney then added more extreme limitations. (R. at 79–80.) First, the attorney asked if a
person that would need to rest in the lying down position after looking at a computer screen for
twenty minutes could obtain employment. (R. at 79.) The VE testified that there are no jobs that
could accommodate that limitation. (R. at 79.) The Plaintiff then proposed two more limitations:
having to stand up and walk around for 50% of the work day and being absent more than one day
per month. The ALJ stipulated that there would be no jobs that could accommodate such extreme
limitations.

(4)

Appeals Council
Plaintiff submitted additional medical records from Dr. David Lutz of the NueroSpine and

Pain Center from late 2009 and early 2010. (R. at 648–665.) The evidence showed that Plaintiff
had an affirmative diagnosis of fibromyalgia, received trigger point injections, and was
prescribed Cymbalta. (R. at 648, 654–655, 661.) It attempted to rebut the ALJ’s statement in his
unfavorable decision that there was nothing in the record to show that Plaintiff was definitely
given a diagnosis of fibromyalgia. (R. at 35.) The Appeals Council rejected this evidence as not
providing a reason for changing the ALJ’s decision. (R. at 2.)

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Plaintiff also submitted medical records dating from before the alleged disability onset date
and after the date of the ALJ’s decision. (R. at 2, 666–818.) The Appeals Council rejected this
evidence finding that it could not affect the ALJ’s decision as it was from an irrelevant time
period. (R. at 2.) The Appeals Council encouraged Plaintiff to file for Social Security Benefits
again if she wished for that evidence to be considered. (Id.)

C.

Standard of Review
The Social Security Act requires the ALJ’s decision to be supported by substantial evidence.

42 U.S.C. § 405(g). Therefore, a court must uphold the decision if it is reached under the correct
legal standard and supported by substantial evidence. Rohan v. Chater, F.3d 966, 970 (7th Cir.
1996). Substantial evidence is defined as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). This Court will not
reconsider facts, re-weigh the evidence, resolve conflicts in the evidence, decide questions of
credibility, or substitute its judgment for that of the ALJ. Boiles v. Barnhart, 395 F.3d 421, 425
(7th Cir. 2005). However, in reviewing the record and the ALJ’s decision, this Court will ensure
that the ALJ built an “accurate logical bridge from the evidence to his conclusion so that, as a
reviewing court, we may access the validity of the agency’s ultimate findings and afford a
claimant meaningful judicial review.” Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002).

D.

Disability Standard

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To qualify for DIB or SSI benefits, the claimant must establish that she suffers from a
disability. A disability is an “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). The Social Security Administration (“SSA”) established a
five-step inquiry to evaluate whether a claimant qualifies for disability benefits. A successful
claimant must show:
(1) she is not presently employed;
(2) her impairment is severe;
(3) her impairment is listed or equal to a listing in 20 C.F.R. § 404, Subpart P, Appendix 1;
(4) she is not able to perform her past relevant work; and
(5) she is unable to perform any other work within the national and local economy.
Scheck v. Barnhart, 357 F.3d 697, 699–700 (7th Cir. 2004).
An affirmative answer leads either to the next step or, on steps three and five, to a finding
that the claimant is not disabled. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001). A
negative answer at any point other than step three stops the inquiry and leads to a finding that the
claimant is not disabled. Id. The burden of proof lies with the claimant at every step other than
the fifth, where it shifts to the Commissioner. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir.
2000).

E.

Analysis
Plaintiff asserts four main issues on appeal: (1) whether the ALJ improperly assessed

Plaintiff’s credibility; (2) whether the ALJ legally erred in defining Plaintiff’s RFC; (3) whether
the ALJ improperly applied the Medical-Vocational Guidelines; and (4) whether the Appeals

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Council properly rejected the submission of new evidence, namely, a medical report detailing an
affirmative fibromyalgia diagnosis.
The Court is unable to assess the ALJ’s credibility finding as he did not build a proper
“logical bridge” between the evidence and the conclusion that nearly all of what Plaintiff
testified to was “not entirely credible” or “not entirely persuasive.1 Therefore, a remand is
necessary.
The Court cannot reach the level of review on issues (2) and (3) because the ALJ may have
incorporated a faulty credibility determination into the assessment of claimant’s RFC. The Court
does find, though, that the Appeals Council improperly rejected the new evidence, as it was both
“new” and “material”.

(1)

The ALJ’s credibility assessment fails to build a logical bridge
“An ALJ is in the best position to determine the credibility of witnesses, and we review that

determination deferentially.” Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008) (citing Sims v.
Barnhart, 442 F.3d 536, 538 (7th Cir. 2006)). The Court will only overturn a credibility finding
if it is patently wrong. Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006). Demonstrating
that the ALJ’s credibility finding is patently wrong is a high burden. Turner v. Astrue, 390 Fed.
Appx. 581, 587 (7th Cir. 2010). But the ALJ must still build a sufficient logical bridge between
the evidence and the conclusion to afford this Court the opportunity for meaningful review. See
Shramek v. Apfel, 226 F.3d 809 (7th Cir. 2000).

1

This Circuit has held that the boilerplate language used in the ALJ’s opinion, without more, is meaningless. See,
e.g., Parker v. Astrue, 597 F.3d 920, 920 (7th Cir. 2010); Bjornson v. Astrue, 671 F.3d 640, 643 (7th Cir. 2012).

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The ALJ begins his credibility determination with the familiar boilerplate language: “[t]he
following allegations made by the claimant . . . are found to be not entirely credible, especially
with regard to the extent or duration of the alleged symptoms and limitations.” (R. at 33.) The
ALJ then goes on to list nearly everything that the claimant has alleged. It appears to the Court
that the ALJ believed almost nothing of what Plaintiff claimed.
The ALJ states that her credibility is lessened by several factors. (R. at 33.) The first of which
is that she was previously found to be not disabled by the SSA in 2005. (Id.) The ALJ does not
explain why he finds this to lessen her credibility. Plaintiff is not a serial filer2 and her medical
condition has significantly changed since her last filing3. The Court finds this determination to be
especially troubling, because the ALJ in the 2005 case found her RFC to be consistent with
sedentary work. A similar conclusion in this case, given her age, would yield a finding of
disabled. Accordingly, the Court cannot find this to be a harmless error. On remand, the ALJ
must explain why he found this to lessen Plaintiff’s credibility.
The ALJ also found Plaintiff’s daily activities to undermine her credibility. Plaintiff’s daily
activities include:
being able to watch a computer for at least short periods of time, watch television, do
some laundry, drive a car sometimes, leave her home unaccompanied, count change, go to
church sometimes, talk on the phone to others, and read the Bible. In addition, the
Claimant and Ms. Coe testified that the claimant tried to help clean up the kitchen two or
three times per week and Ms. Coe added that the claimant kept her room clean.
(R. at 36–37.) The ALJ then stated that all of these activities support the finding that the claimant
is not limited as she claims. (R. at 37.) It is unclear to the Court how these minimal daily
activities undermine any of Plaintiff’s allegations. It would seem that a person who suffers from
severe pain and fatigue would still have the ability to count change. On remand, the ALJ must

2
3

 Besides the denial in 2005, Plaintiff has only filed for social security benefits one other time in 1981. (R. at 190.) 
 Plaintiff had lumbar decompression and fusion surgery. Supra at 5.  

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articulate, at least minimally, why he finds these daily activities to be inconsistent with Plaintiff’s
alleged symptoms.
This is not to say that the ALJ failed entirely. The ALJ did cite to record and explained a
significant portion of his conclusions. But this Court agrees with the principle that “an
administrative agency’s decision cannot be upheld when the reasoning process employed by the
decision maker exhibits deep logical flaws.” Carradine v. Barnhart, 360 F.3d 751 (7th Cir.
2004) (citing Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002); Sarchet v. Chater, 78 F.3d
305, 307 (7th Cir. 1996); Adorno v. Shalala, 40 F.3d 43, 44 (3rd Cir. 1994)). The ALJ stating
that a prior denial of benefits lessens Plaintiff’s credibility, without explanation, constitutes a
deep logical flaw. Furthermore, the ALJ must explain why Plaintiff’s ability to do minimal daily
chores lessens her credibility in any way. See, e.g., Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir.
2000) (“minimal daily activities, such as those in issue, do not establish that a person is capable
of engaging in substantial physical activity”).

(2)

RFC determination and the Medical-Vocational Guidelines
Plaintiff claims that the ALJ did not consider her sleep dysfunction in defining the RFC. The

Court agrees that the ALJ failed to adequately explain what role Plaintiff’s sleep dysfunction had
in the RFC assessment. The Court can only assume that the ALJ discounted the severity of the
sleep dysfunction because of an adverse credibility finding. But because a claimant’s credibility
is determined before the RFC is assessed, this Court cannot reach the level of review on the issue
of the RFC. To the extent that the ALJ does not believe Plaintiff’s well-documented sleep

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dysfunction, the ALJ should build a logical bridge between that conclusion and the evidence
contained in the record.
For the same reasons, this Court cannot reach the level of review on the issue of the MedicalVocational Guidelines.

(3)

The Appeals Council Improperly Rejected the New Evidence
Plaintiff submitted additional medical evidence confirming a diagnosis of fibromyalgia to the

Appeals Council. But the Appeals Council rejected the evidence finding that it “did not provide a
basis for changing the ALJ’s decision.” (R. at 2.) This Court will review the Appeals Council’s
decision de novo. Farrell v. Astrue, 692 F.3d 767, 771 (7th Cir. 2012).
The Appeals Council must consider the evidence if it is both “new” and “material.” Id.; 20
C.F.R. § 404.970(b) (“If new and material evidence is submitted, the Appeals Council shall
consider the additional evidence only where it relates to the period on or before the date of the
administrative law judge hearing decision.”) “New” simply requires that the evidence be new to
the administrative record. Farrell, 692 F.3d 767, 771. Materiality, on the other hand, is a casespecific inquiry.
The ALJ based part of his decision on the fact that “there is no medical evidence of record to
support a finding that the claimant was definitely given this diagnosis [of fibromyalgia].” (R. at
35.) The new evidence attempts to fill in this gap. It is certainly material if the Court agrees that
there was no positive diagnosis of fibromyalgia. However, on page 490 of the record, it appears
to the Court that Dr. Campbell diagnosed Plaintiff with fibromyalgia: “[s]he has severe
fibromyalgia with trigger points, muscle pain, stiffness, fatigue and poor rest.” In any event, the

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Court still finds that the new evidence was material, as it provides a second, confirmed diagnosis
of fibromyalgia. On remand, the ALJ must consider the new evidence, pp. 648–665 of the
Administrative Record. The ALJ should also consider Dr. Campbell’s findings.
Plaintiff also submitted medical records from before the alleged disability onset date and
after the hearing date. The Council properly rejected that evidence because it did not relate to the
relevant time period. See 20 C.F.R. § 404.970(b).

F.

Conclusion
The Court finds that the ALJ failed to build a logical bridge from the evidence to his

credibility finding, which precludes this Court from meaningfully reviewing the decision. On
remand, the ALJ is directed to revisit his decision and explain in greater detail his findings
consistent with this Opinion. Furthermore, the ALJ is directed to incorporate into the record pp.
648–665 and consider the evidence contained therein.
The Court vacates the ALJ’s opinion and remands this case to the Social Security
Administration for further proceedings consistent with this Opinion.
SO ORDERED on July 23, 2013.

s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE

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