Till v. Commissioner of Social Security
OPINION AND ORDER: Case is REVERSED and REMANDED to Commissioner for further proceedings. Clerk directed to enter a judgment in favor of Till and against the Commissioner. Signed by Magistrate Judge Roger B Cosbey on 7/18/2014. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
TERESA L. TILL,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Cause No. 1:13-CV-181
OPINION AND ORDER
Plaintiff Teresa L. Till appeals to the district court from a final decision of the
Commissioner of Social Security (“Commissioner”) denying her application under the Social
Security Act (the “Act”) for a period of disability and Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”).1 (See Docket # 1.) For the following reasons, the
Commissioner’s decision will be REVERSED, and the case will be REMANDED to the
Commissioner for further proceedings in accordance with this Opinion and Order.
I. PROCEDURAL HISTORY
Till applied for SSI and DIB in June 2009, alleging that she became disabled May 9,
2009. (Tr. 189-91, 197-99.) The Commissioner denied Till’s application initially and upon
reconsideration, and Till requested an administrative hearing. (Tr. 88-95, 98-103.) On April 29,
2011, a hearing was conducted by Administrative Law Judge (“ALJ”) John Pope, at which Till,
who was represented by counsel; her boyfriend; and a vocational expert (“VE”) testified. (Tr. 4883.) On August 25, 2011, the ALJ rendered an unfavorable decision to Till, concluding that she
All parties have consented to the Magistrate Judge. (Docket # 13); see 28 U.S.C. § 636(c).
was not disabled because she could perform a significant number of unskilled jobs in the
economy. (Tr. 17-30.) The Appeals Council denied Till’s request for review, making the ALJ’s
decision the final decision of the Commissioner. (Tr. 1-13, 339-46); 20 C.F.R. §§ 404.981,
Till filed a complaint with this Court on June 5, 2013, seeking relief from the
Commissioner’s final decision. (Docket # 1.) In this appeal, Till contends that the ALJ
improperly evaluated her credibility regarding symptom testimony, and failed to properly
evaluate the opinions of her treating psychiatric nurse. (Opening Br. of Pl. in Social Security
Appeal Pursuant to L.R. 7.3 (“Opening Br.”) 15-25.) Because Till’s first argument is
meritorious and warrants remand, the Court need not reach her latter assertion.
II. FACTUAL BACKGROUND2
At the time of her alleged onset date, Till was fifty-three years old (Tr. 189); had a high
school education; was certified as a practical nurse (Tr. 54); and possessed work experience as a
licensed practical nurse (Tr. 29). She alleges disability due to attention deficit hyperactivity
disorder (“ADHD”); depressive disorder, NOS; anxiety disorder, NOS; post-bilateral L5-S1
laminotomies and foraminotomies with a fusion at L5-S1; degenerative changes in the lumbar
spine; post-operative changes in the lumbar spine from partial laminectomies and fusion at L5S1; post-right medial lateral meniscectomy with lateral condyle chondroplasty; cubital tunnel
syndrome; and right ulnar neuropathy. (Opening Br. 2.)
In the interest of brevity, this Opinion recounts only the portions of the 1320-page administrative record
necessary to the decision.
At the hearing, Till testified that she is divorced and currently living in a two-story house
with her boyfriend. (Tr. 53.) She previously worked full-time as a licensed practical nurse, but
lost her job because she could no longer handle the attendant responsibilities, and was suffering
from increased bouts of confusion, anxiety, and forgetfulness (including forgetting to show up
for work). (Tr. 55, 67.) After losing her job, Till attended vocational rehabilitation, but had
limited success and was unable to find work. (Tr. 56.)
Till testified that she had a spinal fusion in 2005, and was involved in a car accident a
year later. Id. Due to this accident, Till indicated that she has significant ongoing pain and
muscle spasms, which are exacerbated by physical activity. (Tr. 56-57.) Till acknowledged that
because she is uninsured, lacks the financial resources, and otherwise disliked the side effects of
several of her medications, her treatment has been limited. (Tr. 58-59, 67-68.) For instance,
Till’s treatment for physical pain and diabetes is limited to hot showers, resting, and going to a
free clinic three to four times a year for medication management and checkups. (Tr. 59-60, 6768.) Till admitted that no doctor has ever placed a limitation on her physical activity. (Tr. 60.)
On a typical day, Till gets out of bed around 2:00 p.m., showers, takes medication, and
then sits down to rest. (Tr. 62.) She then walks about her house, stopping to sit or lie down when
she starts to hurt. (Tr. 62-63.) At around 7:00 p.m., she makes dinner, eats, and tries to clean up.
(Tr. 64.) At 9:30 p.m. she sits down to rest, going to sleep between 12:30 a.m. and 2:00 a.m. Id.
Till reports that she has problems sleeping because of pain and racing thoughts. (Tr. 64-65.)
Till testified that although she can dress herself, grooming and bathing are painful. (Tr.
65.) And although she shops for groceries, she usually does so with the assistance of a
motorized cart. Id. She is able to do a little laundry, but has difficulty sweeping or vacuuming,
and has to stay in bed for a day after doing so. (Tr. 65-66.) Till indicated that she does try to
exercise daily, walking about an hour with the assistance of a cane. (Tr. 66.)
In terms of social interaction, Till speaks with her son by telephone once every couple of
weeks, shares a house with her boyfriend, and maintains a couple of friends from her days as a
nurse, but she rarely sees or interacts with them. (Tr. 69.) She also indicated that she has
difficulty getting along with people in public arenas. (Tr. 70.)
Till’s boyfriend also testified, essentially corroborating Till’s testimony on her daily
activities and symptoms. (Tr. 76.) Of importance to this appeal, Till’s boyfriend explained that
although they try to socialize with another couple once a week, there are times where Till does
not participate because she does not feel like socializing. (Tr. 77.)
B. Summary of the Medical Evidence
In 2002, Till was diagnosed with ADHD, which had been present since childhood, but had
remained undiagnosed. (Tr. 347.) In October 2005, she underwent bilateral L5-S1 laminotomies
and foraminotomies, and had a posterolateral interbody fusion, L5 to S1. (Tr. 358-59.) In October
2006, Till was involved in a car accident, and was admitted to the emergency room with
complaints of left chest pain; her diagnosis was status post motor vehicle crash, with blunt left
thoracic injury and minor closed injury. (Tr. 362-63.) Dr. Jody Neer diagnosed Till with
postconcussive syndrome with typical headache and cognitive impairment. (Tr. 416.)
In December 2006, Dr. Frances Goff conducted a neuropsychological evaluation. (Tr.
487.) Till reported memory loss, lack of focus, word retrieval deficits, tearfulness,
misinterpretation of others, anxiety, irritability, emotional liability, and depression. (Tr. 488.) Dr.
Goff noted that while Till’s speech pattern was slurred or dysarthric during the initial
consultation, her speech pattern was normal during follow-up. Id. Dr. Goff opined that Till’s
distracted thought process was possibly related to her history of Adult Attention Deficit Disorder.
Id. In February 2007, Dr. Neer saw Till on follow-up, finding that her post-concussive syndrome
was markedly improved, and that an MRI of the brain and EEG were both normal. (Tr. 408.)
Two months later, Dr. William Berghoff evaluated Till due to ongoing left knee pain
stemming from her car accident. (Tr. 577-78.) An MRI the following month revealed an
arthroscopically detectible tear involving the posterior horn of the lateral meniscus, and an
associated small joint effusion. (Tr. 469.) That August, Dr. Berghoff performed a medial lateral
meniscectomy with lateral condyle chondroplasty. (Tr. 595.)
In February 2009, Till was evaluated by Ms. Sharon Altholz at Park Center. (Tr. 915-22.)
Till reported problems with attention, focus, and concentration; difficulty with appetite and sleep
pattern; overall general pain; significant memory loss; continued speech problems; and difficulty
getting along with others. (Tr. 915-17.) Ms. Altholz reported that Till worried excessively, was
overactive and distracted, suffered from a depressed and anxious affect, and found that although
her thinking form was normal, her thought content was helpless, hopeless, and worthless. (Tr.
917.) Ms. Altholz also noted that Till had good basic hygiene, and no problems with cooking or
cleaning. (Tr. 919.) Finally, although Till was unable to manage her time appropriately or
maintain her schedule, she was capable of independent living. Id. Till was diagnosed with
depressive disorder, NOS; ADHD, predominantly inattentive type; anxiety disorder, NOS;
alcohol abuse, in full remission, and assigned a Global Assessment Function (“GAF”) of 52.3 (Tr.
GAF scores reflect a clinician’s judgment about the individual’s overall level of functioning. American
Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders 32 (4th ed., Text Rev. 2000). A GAF
score of 51 to 60 reflects moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or
moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-
In April 2009, Till saw Nurse Karen Lothamer at the Park Center for an insight diagnostic
evaluation. (Tr. 938.) Till reported problems with depression, mood fluctuation, agitation,
memory impairment, and symptoms of inattention. Id. On mental status examination, she was
overactive, distractible, depressed, and anxious; had helpless and worthless thought content; and
had problems with memory; however, she had normal speech and thinking form, and no
orientation problems or suicidal thoughts. (Tr. 939.) Till reported that she was currently working
part-time as a private duty nurse. (Tr. 941.) She was assigned the same GAF and diagnosis
(except her alcohol abuse was not in remission). (Tr. 942.)
From April 2009 to September 2010 Till saw Nurse Lothamer (or occasionally one of her
peers) approximately ten times for medication management. (Tr. 938-62, 1108-17, 1200-01,
1232-40, 1246-50, 1300-03, 1311-15). Aside from an insight diagnostic evaluation, which lasted
fifty minutes, these meetings typically lasted between fifteen and twenty minutes, and consisted
of Till reporting how she felt, and Ms. Lothamer filling out a check-the-box mental functioning
assessment. (See, e.g., Tr. 947-51.) Initially, these assessments typically indicated that Till had
helpless, hopeless, or worthless thought content; impaired memory; depressed mood; flat affect;
and poor judgment. (See, e.g., id.) Later in her treatment, however, these assessments typically
indicated that Till had normal thought content and perception, fair judgment, and no memory
problems. (See, e.g., Tr. 1311-15.) Because most of the assessments contain similar information,
only the remarkable portions (such as her transition from poor to normal mental health) are
Likewise, Till also attended individual and group therapy sessions at Park Center with
therapist Judith Woodyard (or occasionally one of her peers) from April 2009 to January 2011.
(Tr. 963-71, 1084-97, 1118-26, 1202-31, 1241-45, 1251-59, 1306-10.) Although Till missed
several appointments, it appears they were scheduled on a monthly basis. These treatment plans
and therapy notes follow the same pattern as the mental function assessment; that is, initially Till
had bouts of depression and suffered from ADHD, anxiety issues, and had moderate difficulty in
social and occupational functioning, but later in treatment was deemed to be showing positive
progress. (Compare Tr. 963, with Tr. 1303.) Accordingly, only the remarkable excerpts from
these plans are recounted here.
In August 2009, Dr. Elizabeth Struble performed a consultative examination on behalf of
Social Security. (Tr. 1045.) Till reported issues with memory and concentration, and that she had
become increasingly emotional and unstable. Id. Till indicated that she can dress and feed
herself, but can only perform household chores in short intervals and cannot mow the grass. (Tr.
1046.) On physical examination, Till’s spine was tender to palpitation, but her gait and strength
were normal, as was her range of motion in the cervical and lumber spine and knees. (Tr. 1048.)
On neurological examination, Till was alert and oriented times three with good personal hygiene;
although she had some flight of ideas, she could follow simple directions and had normal mood
and affect. Id. Dr. Struble concluded that Till had no limitations in sitting, walking, lifting,
carrying, seeing, hearing or speaking. (Tr. 1049.)
In September 2009, Dr. B. Whitley, a non-examining state agency doctor, found Till had
no physical limitations (Tr. 1052); this opinion was affirmed by Dr. J. Sands in February 2010
Also in September 2009, Ms. Lothamer wrote a letter indicating that Till’s diagnoses
caused her difficulty in concentrating, understanding directions, staying focused, completing
tasks, and finding that these symptoms were exacerbated by the car accident. (Tr. 1050.) Further,
she concluded that that Till would be unable to maintain any type of employment. Id.
The following month, Wayne Von Bargen, Ph.D., performed a psychological evaluation.
(Tr. 1053-55.) Till reiterated her memory and depression problems, but stated that her symptoms
had improved. (Tr. 1053-54.) Dr. Von Bargen reported that Till was adequately groomed and
cooperative, but often gave rambling, contradictory, and incomplete answers. (Tr. 1053.) He also
concluded that Till appeared able to adequately care for herself and perform routine daily
activities although she is somewhat unproductive and disorganized. (Tr. 1054-55.) Till was
diagnosed with depressive disorder NOS, anxiety disorder NOS, ADHD NOS, rule out cognitive
disorder NOS subsequent to head injury, and assigned a GAF of 55. (Tr. 1055.)
That same month, Till reported to Ms. Lothamer that her medications had helped her
depression and concentration, but she was still having issues with memory. (Tr. 1108.) On
examination, Till was depressed with a flat affect, but had normal and coherent thought content
and perception, no memory problems, fair judgment, normal speech, and was oriented times
three. (Tr. 1108-09.)
In December 2009, Till saw Dr. Von Bargen at the request of Social Security for
administration of the Wechseler Memory Scale. (Tr. 1058.) During testing, Till exhibited no
speech problems, was alert, and displayed appropriate gross and fine motor skills. (Tr. 1058.)
Till’s test scores placed her in the average to superior range; specifically, her ability to recall
information immediately following presentation and following a thirty minute delay were both in
the high average range, her ability to sustain attention and concentration fell in the average range.
(Tr. 1059.) This was her lowest score and Dr. Von Bargen concluded it reflected a significant
relative weakness with respect to immediate and general memory. Id.
In December 2009, Stacia Hill, a non-examining state agency psychologist, conducted a
Psychiatric Review Technique, finding that Till had mild limitations in restriction of activities of
daily living and maintaining social functioning, and moderate difficulty maintaining
concentration, persistence or pace. (Tr. 1075.) Dr. Hill also completed a mental residual
functional capacity assessment, finding that Till was moderately limited in her ability to
understand and remember detailed instructions, and ability to carry out detailed instructions, but
was not significantly limited in the other eighteen categories. (Tr. 1079-80.) In January 2010, J.
Larsen, a non-examining state agency psychology, affirmed Dr. Hill’s opinion. (Tr. 1185.)
In January 2010, Till told Park Center employees that she was no longer having problems
with depression, and requested a decreased dosage in medication, which was granted. (Tr. 1201.)
In April 2010, Till reported to Ms. Woodyard that she had been partly successful in her job
referral services. (Tr. 1244.) Although she had begun the process, her instability inhibited her
from following through and attending vocational rehabilitation appointments. Id.
In July 2010, Ms. Lothamer completed a form regarding Till’s ability to do work-related
mental activities. (Tr. 1260.) Ms. Lothamer found that Till’s chronic pain, lack of energy and
motivation, and difficulties with focusing, concentration, and depression would cause
absenteeism. Id. She opined that Till would miss more than three days a month due to her mental
illness. Id. Ms. Lothamer also stated that Till would require a ten to fifteen minute break every
two hours due to her mental illness. (Tr. 1261.)
Ms. Woodyard completed an identical form the following month. (Tr. 1262.) Ms.
Woodyard stated that Till’s problems with sleeping, inability to remember appointments, and fear
and emotional inability to function in the workplace would cause absenteeism. Id. Ms. Woodyard
opined that Till could not work full time, and would need extra breaks due to fatigue, restlessness,
and distractibility. (Tr. 1263.)
An October 2010 treatment plan indicated that Till was regularly attending scheduled
therapy appointments with good interest and participation, and that she was working well with
medical services. (Tr. 1306-08.) The plan also indicated, however, that Till needed continued
treatment to address her difficulties with anxiety and social functioning. (Tr. 1308.)
In November 2010, Till went to Matthew 25 to go over recent x-ray and lab tests. (Tr.
1292.) While there, Till developed back spasms, got diaphoretic, and was sent to the emergency
III. STANDARD OF REVIEW
Section 405(g) of the Act grants this Court “the power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the decision of the
[Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
The Court’s task is limited to determining whether the ALJ’s factual findings are supported by
substantial evidence, which means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005). The
decision will be reversed only if it is not supported by substantial evidence or if the ALJ applied
an erroneous legal standard. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).
To determine if substantial evidence exists, the Court reviews the entire administrative
record but does not re-weigh the evidence, resolve conflicts, decide questions of credibility, or
substitute its judgment for the Commissioner’s. Id. Rather, if the findings of the Commissioner
are supported by substantial evidence, they are conclusive. Jens v. Barnhart, 347 F.3d 209, 212
(7th Cir. 2003). Nonetheless, “substantial evidence” review should not be a simple rubber-stamp
of the Commissioner’s decision. Clifford, 227 F.3d at 869.
A. The Law
Under the Act, a claimant is entitled to DIB or SSI if she establishes an “inability to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to . . . last for a continuous period of not less than 12
months.” 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A), 1382c(a)(3)(A). A physical or mental impairment
is “an impairment that results from anatomical, physiological, or psychological abnormalities
which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.”
42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner evaluates disability claims pursuant to a five-step evaluation process,
requiring consideration of the following issues, in sequence: (1) whether the claimant is currently
unemployed; (2) whether the claimant has a severe impairment; (3) whether the claimant’s
impairment meets or equals one of the impairments listed by the Commissioner, see 20 C.F.R. §
404, Subpt. P, App. 1; (4) whether the claimant is unable to perform her past work; and (5)
whether the claimant is incapable of performing work in the national economy.4 See Dixon v.
Before performing steps four and five, the ALJ must determine the claimant’s RFC or what tasks the
claimant can do despite her limitations. 20 C.F.R §§ 404.1520(e), 404.1545(a), 416.920(e), 416.945(a). The RFC is
then used during steps four and five to help determine what, if any, employment the claimant is capable of. 20 C.F.R.
§§ 404.1520(e), 416.920(e).
Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001); 20 C.F.R. §§ 404.1520, 416.920. An
affirmative answer leads either to the next step or, on steps three and five, to a finding that the
claimant is 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 except the fifth, where it
shifts to the Commissioner. Clifford, 227 F.3d at 868.
B. The ALJ’s Decision
On August 25, 2011, the ALJ issued the decision that ultimately became the
Commissioner’s final decision. (Tr. 17-30.) He found at step one that Till had not engaged in
substantial gainful activity since her alleged onset date; and at step two, that ADHD; depression;
anxiety disorder, NOS; and obesity were severe impairments. (Tr. 19.) At step three, the ALJ
determined that Till’s impairment or combination of impairments were not severe enough to meet
a listing. (Tr. 20-21.)
Before proceeding to step four, the ALJ determined that Till’s symptom testimony was not
reliable to the extent it was inconsistent with the following RFC: “[T]he claimant has the residual
functional capacity to perform medium work . . . except she is limited to unskilled work.” (Tr. 21.)
At step four, the ALJ concluded that Till is unable to perform any past relevant work. (Tr. 29.) At
step five, however, the ALJ concluded that Till could perform a significant number of unskilled,
medium jobs within the economy under Medical-Vocational Rule 203.22. (Tr. 30.) Accordingly,
Till’s claims for DIB and SSI were denied. (Tr. 29-30.)
C. The ALJ’s Credibility Determination Will Be Remanded
On appeal, Till argues that the five reasons provided by the ALJ for discounting her
credibility were flawed because the ALJ selectively recounted the testimony at the hearing and the
medical evidence. Of Till’s various arguments, two have merit, as it is apparent from the record
that the ALJ (1) failed to account for Till’s limitations in performing her daily activities; and (2)
failed to accurately recite Till’s level of social activity in a fair and balanced manner. Ultimately,
the ALJ’s flawed credibility determination constitutes reversible error. See Carradine v. Barnhart,
360 F.3d 751 (7th Cir. 2004).
Because the ALJ is in the best position to evaluate the credibility of a witness, his
determination is entitled to special deference. Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000).
If an ALJ’s determination is grounded in the record and he articulates his analysis of the evidence
“at least at a minimum level,” Ray v. Bowen, 843 F.2d 998, 1002 (7th Cir. 1988); see Ottman v.
Barnhart, 306 F. Supp. 2d 829, 838 (N.D. Ind. 2004), creating “an accurate and logical bridge
between the evidence and the result,” Ribaudo v. Barnhart, 458 F.3d 580, 584 (7th Cir. 2006), his
determination will be upheld unless it is “patently wrong.” Powers, 207 F.3d at 435; see also
Carradine, 360 F.3d at 754 (remanding an ALJ’s credibility determination because the ALJ’s
decision was based on “serious errors in reasoning rather than merely the demeanor of the
At the same time, the ALJ’s credibility determination “must contain specific reasons for the
finding on credibility, supported by the evidence in the case record, and must be sufficiently
specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator
gave to the individual’s statements and the reasons for that weight.” SSR 96-7p, 1996 WL 374186,
at *2. An ALJ may not reject subjective complaints of pain solely because the medical evidence
does not fully support them. Powers, 207 F.3d at 435.
1. The ALJ Failed to Consider Till’s Limitations in Performing Daily Activities
In assessing Till’s daily activities, the ALJ found that Till’s testimony was “not fully
credible” because “[d]espite her allegations of back pain, fatigue, and depression, she said she is
able to dress, groom, and bathe herself, go grocery shopping, prepare simple meals, do the dishes,
laundry, sweep, vacuum, and sew.” (Tr. 28.)
In making this credibility assessment the ALJ erred by ignoring Till’s numerous
qualifications and limitations in performing such household activities. Jones v. Astrue, 623 F.3d
1155, 1162 (7th Cir. 2010) (“An ALJ may not ignore a claimant’s limiting qualifications with
regard to her daily activities.”). For instance, although Till indicated that she is able to groom and
bathe herself, she explained that she does so with “a lot of pain” and that she has to “really fight 
to take baths because it hurts so bad to get in and out of the tub and just stand there barefooted in
the tub.” (Tr. 65.) Moreover, Till explained that she typically shops for groceries in a motorized
cart, and even then she avoids doing so when she is in pain. (Tr. 65.) Additionally, she indicated
that she tries to avoid any sweeping or vacuuming, and when she does perform these activities she
has to spend the next day in bed recovering. (Tr. 65-66.)
The ALJ’s mischaracterization of Till’s daily activities fails to “build a ‘logical bridge’
between the evidence and [his] conclusions. Hamilton v. Colvin, 525 F. App’x 433, 439 (7th Cir.
2013) (unpublished); see Scott v. Astrue, 647 F.3d 734, 740 (7th Cir.2011); Terry v. Astrue, 580
F.3d 471, 475 (7th Cir. 2009); Wulf v. Astrue, 09 C 6505, 2011 WL 1642522, at *19 (N.D. Ill. May
2, 2011) (finding that the ALJ’s credibility determination was not supported by substantial
evidence because he failed to provide “a fair characterization of [claimant’s] testimony”
concerning daily activities).
The Commissioner attempts to salvage the ALJ’s credibility finding, arguing that it was
limited to showing that Till’s subjective complaints of pain were inconsistent with her range of
daily activities. The Commissioner’s argument is flawed in several respects. First, it ignores that
the ALJ did not consider the limitations and qualifications Till placed on her daily activities.
Whatever weight or consideration the ALJ placed on these limitations when assessing Till’s
credibility is unknown, as the ALJ says nothing about it. Second, and more importantly, the fact
that Till is able to perform minimal daily activities does not, as the ALJ suggests, contradict her
complaints of pain. Zurwaski, 245 F.3d at 887 (finding that plaintiff's activities “are fairly
restricted (e.g., washing dishes, helping his children prepare for school, doing laundry, and
preparing dinner) and not the sort that necessarily undermines or contradicts a claim of disabling
pain”); Wulf, 2011 WL 1642522, at *19 (find that claimant’s “daily activities are fairly restricted
and do not undermine or contradict a claim of disabling pain”) (quotation omitted); Lawson v.
Barnhart, 455 F.Supp.2d 747, 771 (N.D.Ill.2006) (same); see also Clifford, 227 F.3d at 872
(“minimal daily activities ... do not establish that a person is capable of engaging in substantial
physical activity”). Simply put, Till’s minimal daily activities does not contradict her subjective
complaints of pains.
Although an ALJ need not consider every piece of evidence, he must represent the record
fairly and accurately represent the record regardless of whether it favors his conclusion. Terry v.
Astrue, 580 F.3d 471, 477 (7th Cir. 2009). “Unless the ALJ properly finds [Till’s] testimony to be
incredible on remand, any such testimony about how [Till] copes with [her] daily activities should
be considered in the RFC assessment.” Craft v. Astrue, 539 F.3d 668, 680 (7th Cir. 2008); see
Zurawski, 245 F.3d at 888 (finding the ALJ's credibility analysis flawed for failing to discuss
evidence favoring claimant); Zenka v. Astrue, 904 F. Supp. 2d 884, 896 (N.D. Ill. 2012) (holding
that ALJ’s credibility determination was flawed because claimant “testified to having a number of
limitations in performing the everyday activities the ALJ considered, most of which were ignored
by the ALJ”).
2. The ALJ’s Assessment of Till’s Social Activity Rests Upon a Skewed Portrayal
Till next takes issue with the ALJ’s assessment of her social activity. The ALJ found the
testimonies of Till and her boyfriend inconsistent, observing that “claimant testified that she only
socializes once in a great while, but her boyfriend said that they try to get together with another
couple once a week.” (Tr. 28.)
“Testimonial inconsistencies can indeed form the basis of an adverse credibility finding.”
Hamilton v. Colvin, 525 F. App’x 433, 437 (7th Cir. 2013) (unpublished) (citing SSR 96-7p). Till
contends that there is no testimonial inconsistency, however, as the ALJ “cherry-picked” her and
her boyfriend’s testimony.5 To explain, in response to a question from the ALJ about her social
activity, Till stated that she maintains some friends from nursing, but only sees them “[o]nce in a
great while” because she has difficulty interacting with others. (Tr. 69.) By comparison, Till’s
boyfriend testified as follows:
Okay. Now, what about being out in public, how does she do out in public?
Well, she seems to be, you know, it depends on the day, but she seems to be able to
socialize to a certain point and then she can’t do it anymore.
Can you give me an example?
It should be noted that in the same credibility section the ALJ found Till’s boyfriend’s testimony
“consistent with her allegations.” (Tr. 28.) This is at odds, however, with his statement that Till and her boyfriend
had inconsistent testimony regarding her social activity. On remand, the ALJ should reconcile his conflicting
statements, and consider the entirety of any testimony concerning Till’s socialization when determining whether any
Well, we try to meet with another couple once a week and there are some weeks
that we’ve passed because she’s in a lot of pain or she just doesn’t feel like
As is evident from the testimony quoted above, the ALJ’s conclusion that Till’s testimony
was inconsistent with that of her boyfriend is troublesome as Till and her boyfriend were referring
to different groups of people when discussing her social activity. Moreover, Till’s boyfriend’s
testimony described how limited her social activity was, yet it is being proffered by the ALJ for
The ALJ failed to “address the evidence in a balanced manner,” when finding that Till’s
statement that she only sees her nursing friends “once in a great while” contradicted her
boyfriend’s statement that they attempt to see another couple once a week. Moore v. Colvin, No.
13-2460, --- F.3d ---, 2014 WL 763223, at *6 (7th Cir. Feb. 27, 2014); Flynn v. Astrue, 563 F.
Supp. 2d 932, 940 (N.D. Ill. 2008) (the ALJ must also “explain why contrary evidence does not
persuade”). Furthermore, the ALJ’s failure to accurately and completely recite Till’s boyfriend’s
testimony created a skewed portrayal of what was testified to. Consequently, on remand the ALJ
must support his credibility findings with accurate and fair recitations of the evidence. Zurawski,
245 F.3d at 887 (“Where, as here, the ALJ denies benefits, our cases make it clear that the ALJ
must build an accurate and logical bridge from the evidence to [his] conclusion.”) (citation and
internal quotations omitted).
Admittedly, the ALJ mentioned a few other reasons to discredit Till that have more
traction. He thought it suspicious that Till’s failed vocational rehabilitation was largely due to her
failure to respond to potential job opportunities; noted that Till’s psychological issues seem to be
treated with medication, which she had stopped taking due to the side effects; and observed that
Till’s psychological tests revealed average to above-average scores in memory and concentration,
which is inconsistent with her alleged memory and concentration problems. (Tr. 28.)
Nevertheless, these others reasons do not assuage the Court’s concern that the ALJ’s flawed
credibility determinations appear directly relevant to whether Till has the ability to perform
unskilled medium work; work that “usually requires frequent bending-stooping,” “flexibility of the
knees as well as the torso” and states that “being on one’s feet for most of the workday is critical.”
Consequently, the case will be remanded so that the ALJ may reassess the credibility of
Till’s complaints in accordance with Social Security Ruling 96-7p. See Brindsi ex rel. Brindsi v.
Barnhart, 315 F.3d 783, 787 (7th Cir. 2003) (“In evaluating the credibility of statements
supporting a Social Security application, we have noted that an ALJ must comply with the
requirements of Social Security Ruling 96-7p.”).
For the reasons articulated herein, the decision of the Commissioner is REVERSED, and
the case is REMANDED to the Commissioner for further proceedings in accordance with this
Opinion and Order. The Clerk is directed to enter a judgment in favor of Till and against the
Enter for this 18th day of July 2014.
S/Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge
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