Brown v. Commissioner of Social Security

Filing 27

OPINION AND ORDER: VACATING the Commissioner's denial of benefits and REMANDING case to Commissioner of Social Security for further proceedings. Signed by Judge Robert L Miller, Jr on 8/13/2014. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ELLEN R. BROWN,
PLAINTIFF
vs.
CAROLYN COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT

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CAUSE NO. 1:13cv34RLM

OPINION AND ORDER
In August 2010, Ellen Brown lost her job as an injection mould operator
and sometimes fork lift operator when her employer decided she couldn’t do her
job under restrictions her doctor had ordered. Ms. Brown applied for disability
insurance and Supplemental Security Income benefits, and lost.1 This is what Ms.
Brown said while testifying at the hearing on her petition:
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She experiences sharp shooting pain traveling across her lower back
into the inside of her right leg.

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Her pain is constant even with medication that has been prescribed
to her.

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Ms. Brown seeks Disability Insurance and Supplemental Security Income benefits
under Title II, 42 U.S.C. § 401, et seq. and Title XVI, 42 U.S.C. § 1381, et seq. respectively of
the Social Security Act. She filed her applications on August 11, 2010, asserting an onset date
of May 8, 2010 due to a number of issues including back problems and depression. Her
application was denied initially, on reconsideration, and after an administrative hearing in
September 2011, at which she was represented by counsel. The ALJ found that Ms. Brown had
some severe physical impairments but could still perform certain jobs available in the national
and regional economy, so she wasn’t disabled within the meaning of the Act. See 20 C.F.R. §
416.920(g). The Appeals Council denied review of the ALJ’s decision, making the ALJ’s decision
the final determination of the Commissioner.

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She can’t work, mostly due to the pain.

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The pain curtails her general activities, too:
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It’s hard for her to travel in a car because getting in and out of
the car is painful.

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She has to lean on the cart when she goes to the store.

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She spreads her chores out throughout the week because she
can’t do housework for very long.

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She has to sit while her food cooks and can’t stand long
enough to prepare the food properly.

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She can’t sit for as long as an hour at a time.

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She lies down most of the day.

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If she tries to lift anything heavier than a gallon of milk, pain shoots
down her spine.

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She naps several times a day because of the fatigue from her pain.

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Depression and anxiety keep her from gainful employment, too:
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She cries “at the drop of a hat sometimes”.

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She dislikes being around others because of her nervousness.

An ALJ must consider a claimant’s testimony about her own condition if
medical evidence supports her testimony. Indoranto v. Barnhart, 374 F.3d 470,
474 (7th Cir. 2004). There is medical evidence to support Ms. Brown’s testimony
about her pain and her depression.

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In April 2010, Ms. Brown complained to her doctor of pain all over
her lower back, radiating into her legs.

•

In May 2010, her doctor noted that she had sciatic pain and still
suffered right leg pain that affected her sleep.

•

An ensuing MRI showed:
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mild degenerative disc disease L5-S1 with a central disc
protrusion that touched, but didn’t displace, the anterior thecal
sac;

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grade I retrolisthesis L4 on L5 with mild degenerative disc
disease, with an increased disc bulge greater on the right side,
and moderate right (and very mild left) neuroforaminal
narrowing;

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degenerative spurrin L2-L4 without disc space height loss
representing spondylosis; and

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a bone marrow signal remarkable for discogenic end-plate
changes surrounding the L5-S1 intervertebral disc.

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Ms. Brown began treatment with the Centers for Pain Relief, where
her doctor noted chronic lower back pain radiating into her leg, with
numbness and tingling in her foot, and that Ms. Brown could get
relief from pain only by not moving and prescription medications;
bending, lying flat, and lifting just made it worse.

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The doctor ordered a caudal epidural steroid injection in June 2010,
in the left L4-L5 facet joint and near the nerve roots on the L4-L5 and
L5-S1 spaces.

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Ms. Brown reported continued chronic pain in her August visit to the
Centers for Pain Relief, and was diagnosed with Lumbar Facit
Athropathy, Sacroilitis, left L5 Radiculopathy, and Thoracic
Myofascial Pain Syndrome.

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Dr. Revathi Bingi conducted a consultative psychological evaluation
in August 2010, and said Ms. Brown’s depression and anxiety
appeared to be decreasing her quality of life, so she gave her a global
assessment of functioning score of 49, which connotes serious
symptoms — such as suicidal ideation, severe obsessional rituals,
frequent shoplifting — or serious impairment in social, occupational,
or school functioning (see Bates v. Colvin, 736 F.3d 1093, 1099 n.3
(7th Cir. 2013)).

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Physical findings were about the same during Ms. Brown’s September
visit to the Centers for Pain Relief, but she reported that the pain
medication had started to lose its effect, so the doctors increased the
prescribed dosage; she also presented with muscle weakness.

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Ms. Brown returned in November, with about the same findings.

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In December, she reported that the medications were helping, but her
lower right back pain radiating down her leg still hit 10 on a 10-point
scale at times; she said her pain was sharp and constant.

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In February 2011, Ms. Brown reported that the pain on her left side
was worse, but wasn’t radiating into her left leg.

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In March, the doctors at the Centers for Pain Relief noted the same
symptoms.

The record contained considerable evidence indicating that Ms. Brown
wasn’t disabled, most notably her own testimony about her day-to-day activities:
she cooked food in a microwave oven or slow cooker, did the dishes, kept her
bird’s cage clean, went to a pub with her boyfriend about once a week, watched
NASCAR on occasion, shopped for herself and her grandmother at Wal-Mart (and
took her mother to Wal-Mart once a week), cared for her own personal hygiene,
completed household chores like laundry with the benefit of breaks, drove,
managed her own finances, and engaged in regular social interactions with her
family. Medical records made reference to her normal gait; only Dr. Bingi’s records
(which resulted from a single examination) referred to difficulty being around
others.
So the ALJ had considerable challenges of weighing evidence on his plate.
Noting that most of what Dr. Bingi described of her examination seemed
inconsistent with the GAF rating of 49, the ALJ gave Dr. Bingi’s “opinion little
weight as the opinion is inconsistent with the doctor’s own observation, which
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accordingly rendered it less persuasive.” As to the restrictions imposed on physical
activity by the doctor at to the Centers for Pain Relief, the ALJ gave the opinion
“limited weight as it does not fully align with the medical record as a whole and
is inconsistent with the overall evidence.” The ALJ gave little weight to another
doctor’s restrictions on physical activity because they weren’t consistent with the
activities Ms. Brown had described. The ALJ gave some weight to a state doctor’s
restrictions, but noted that Ms. Brown was “more impaired than determined by
the State doctor.” Another state doctor had conducted a psychiatric review and
placed considerable weight on the reports of Ms. Brown’s physical activities and
her ex-employer’s failure to mention significant difficulties in dealing with other
people; that doctor found that Ms. Brown’s mental condition wasn’t severely
limiting, and the ALJ gave that opinion “significant weight as it is consistent with
the medical record as a whole.”
Finally, as to Ms. Brown’s testimony, the ALJ said this:
After careful consideration of the evidence, the undersigned finds that
the claimant’s medically determinable impairments could reasonably
be expected to cause the alleged symptoms; however, the claimant's
statements concerning the intensity, persistence and limiting
effects of these symptoms are not credible to the extent they are
inconsistent with the above residual functional capacity
assessment.
The court of appeals has been critical of this language because it is a
tautology: the ALJ finds the claimant’s testimony incredible except to the extent
the ALJ finds it credible and supportive of the ALJ’s conclusion. Bjornson v.
Astrue, 671 F.3d 640, 645 (7th Cir. 2012); Parker v. Astrue, 597 F.3d 920, 922
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(7th Cir. 2010). The court of appeals has recognized that the ALJs have far more
work than can be handled without some shortcuts, and so affirms rulings that
contain that language if the court can tell why the ALJ ruled as he or she did.
Pepper v. Colvin, 712 F.3d 351, 367-368 (7th Cir. 2013); see also Shideler v.
Astrue, 688 F.3d 306, 312 (7th Cir, 2012). But with or without that boilerplate
language, the ALJ “must provide a ‘logical bridge’ between the evidence and the
conclusions so that [the court] can assess the validity of the agency’s ultimate
findings and afford the claimant meaningful judicial review.” Jones v. Astrue, 623
F.3d 1155, 1160 (7th Cir. 2010); accord Beardsley v. Colvin, — F.3d —, No. 133609, 2014 WL 3361073, at *2 (7th Cir. July 10, 2014); Craft v. Astrue, 539 F.3d
668, 677 (7th Cir. 2008). That bridge is missing from the ALJ’s findings and
conclusions.
The bulk of the evidence to which the ALJ pointed when limiting the weight
of medical opinion came from Ms. Brown. The ALJ pointed to Ms. Brown’s daily
activities — evidence that came primarily from Ms. Brown, though her mother
provided some as well — when rejecting the opinions of two doctors concerning
postural limitations — whether Ms. Brown could bend or twist, and how long she
could sit or stand. The ALJ gave significant weight to the state doctor’s psychiatric
opinion because the ALJ saw it as consistent with the evidence of Ms. Brown’s
daily activities — the lion’s share of which came from Ms. Brown’s testimony —
and the ex-employer’s failure to note difficulties with others during the 13 years
before the claimed onset date of Ms. Brown’s alleged emotional disability.
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The ALJ’s opinion is quite thorough in most respects, but one searches in
vain for the logical bridge by which the ALJ concluded that Ms. Brown’s testimony
was credible — almost dispositively so — when she described her daily activities,
but “not credible” when she described the intensity persistence and limiting effects
of her back pain and her emotional condition. In the absence of such a bridge, the
court must vacate and remand the Commissioner’s decision to deny benefits to
Ms. Brown.
Ms. Brown asks for a reversal and an order to award benefits. This record
doesn’t entitle her to such an order. This record contains plenty of evidence
sufficient to support a grant of benefits, and plenty to support a denial of benefits.
This court can’t weigh the evidence, Simila v. Astrue, 573 F.3d 503, 513 (7th Cir.
2009), and there is no other way to resolve the doctors’ disparate views. Today’s
ruling is based on the shortcomings of findings prepared by an overworked ALJ,
not on the shortcomings of the evidence that might support a remand.
The court VACATES the Commissioner’s denial of benefits and REMANDS
the case to the Commissioner for further proceedings.
SO ORDERED.
ENTERED: August 13, 2014

/s/ Robert L. Miller, Jr.
Robert L. Miller, Jr., Judge
United States District Court

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