Royal v. Commissioner of Social Security

Filing 27

OPINION AND ORDER: The decision of the Commissioner is REMANDED for further proceedings consistent with this Order. Signed by Magistrate Judge Andrew P Rodovich on 3/12/2015. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ALAN JOE ROYAL,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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) Cause No. 1:14-cv-135
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OPINION AND ORDER
This matter is before the court on petition for judicial review of the decision of the
Commissioner filed by the plaintiff, Alan Joe Royal, on May 2, 2014. For the following reasons,
the decision of the Commissioner is REMANDED.
Background
The plaintiff, Alan Joe Royal, filed an application for Disability Insurance Benefits on
March 2, 2011 and Supplemental Security Income on March 8, 2011, alleging a disability onset
date of December 9, 2010. (Tr. 162, 169). The Disability Determination Bureau denied Royal’s
application on April 28, 2011, and again upon reconsideration on July 26, 2011. (Tr. 104, 115).
Royal subsequently filed a timely request for a hearing on October 14, 2011. (Tr. 21). A hearing
was held on September 17, 2012, before Administrative Law Judge (ALJ) William D. Pierson,
and the ALJ issued an unfavorable decision on November 1, 2012. (Tr. 21, 33). Vocational
Expert (VE) Joseph Thompson and Jessica Royal, Royal’s wife, testified at the hearing. (Tr. 21).
The Appeals Council denied review, making the ALJ’s decision the final decision of the
Commissioner. (Tr. 13–15).

At step one of the five step sequential analysis for determining whether an individual is
disabled, the ALJ found that Royal had not engaged in substantial gainful activity since
December 9, 2010, his alleged onset date. (Tr. 23). At step two, the ALJ determined that Royal
had the following severe impairments: minimal spur/disc complex at C2-3, lumbar degenerative
disc disease, and mild right carpal tunnel syndrome. (Tr. 24). Also at step two, the ALJ stated
that Royal had a more recent diagnosis of fibromyalgia. (Tr. 24). At step three, the ALJ
concluded that Royal did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments. (Tr. 25).
The ALJ then assessed Royal’s residual functional capacity as follows:
[T]he claimant is limited to lifting, carrying, pushing and pulling
10 pounds frequently and occasionally throughout the workday.
He is able to stand and/or walk for a total of 2 hours and sit for a
total of 6 hours in an eight-hour period. He can frequently handle
and finger with his dominant hand and upper extremity and can
constantly handle and finger with his non-dominant hand and
upper extremity. He must alternate between sitting and standing
every 45 minutes while remaining on task.
(Tr. 25). The ALJ explained that in considering Royal’s symptoms he followed a two-step
process. (Tr. 25). First, he determined whether there was an underlying medically determinable
physical or mental impairment that was shown by a medically acceptable clinical or laboratory
diagnostic technique that reasonably could be expected to produce Royal’s pain or other
symptoms. (Tr. 25). Then, he evaluated the intensity, persistence, and limiting effects of the
symptoms to determine the extent to which they limited Royal’s functioning. (Tr. 26).
In August 2009, Royal underwent a L5-S1 discectomy with left S1 nerve root
decompression. (Tr. 26). The surgeon, Dr. Hoffman, stated that Royal was able to resume
normal activities within four weeks. (Tr. 26). The ALJ found it appeared that Royal returned to

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substantial gainful work activity in 2010, but Royal alleged disability beginning December 9,
2010. (Tr. 26).
The ALJ concluded that the record supported the finding that Royal had severe back and
neck problems and right carpal tunnel syndrome. (Tr. 26). A late 2010 MRI of his lumbar spine
revealed a recurrent disc extrusion at L5-S1 that abutted the left S1 nerve root, a stable disc
protrusion at L4-5 that mildly deformed the thecal margin, and degenerative disc disease at L4-5
and L5-S1. (Tr. 26). Additionally, a late 2010 MRI of his cervical spine discovered that Royal
had a disc/spur complex at C2-3. (Tr. 26). In June 2012, an electrodiagnostic study indicated a
chronic bilateral L5 and S1 radiculopathy, and a September 2012 electrodiagnostic study found
that Royal had right-sided carpal tunnel syndrome. (Tr. 26). The ALJ also found that Royal
suffered from obesity and had a body mass index of 32.6. (Tr. 26).
For treatment, Royal received chiropractic treatment, physical therapy, hot baths, icing
his neck, caudal, and epidural steroid injections. (Tr. 26). Additionally, he took the following
medications: Cyclobenzaprine, Cymbalta, Chlorzoxazone, Gabapentin, Vicodin, Meloxicam,
Naproxen, Tramadol, Morphine, Ibuprofen, and Oxycodone-Acetaminophen. (Tr. 26). Royal
alleged that cold and activity worsened his pain but that lying down helped. (Tr. 26).
Furthermore, he claimed he spent four days per month solely alternating between lying in bed
and taking hot baths. (Tr. 26). The ALJ concluded that Royal sought the above treatment but
that the record did not support such limiting symptoms that required Royal to lie in bed and take
hot baths four days per month. (Tr. 26).
Royal alleged a constant grinding pain in his middle and lower back and that he had
difficulty standing and walking due to weakness, fatigue, numbness, burning pain, and leg
spasms. (Tr. 26). Additionally, he claimed he used a cane, had difficulty bending and sleeping,

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was limited to sitting for thirty minutes and standing for twenty-five minutes, and could not pick
up a gallon of milk. (Tr. 26). His wife alleged that Royal could not do anything and that he
constantly adjusted his position. (Tr. 26).
The ALJ concluded that the objective medical evidence did not support the degree of
limitations alleged by Royal and his wife. (Tr. 26). The record demonstrated that Royal
received a second lumbar spine surgery in February 2011, but that Dr. Shugart’s medical records
indicated that Royal said his back and legs were not too bad. (Tr. 26–27). Additionally, Royal’s
main complaint involved his neck and arms, although he reported some leg numbness. (Tr. 27).
He exhibited a 5/5 in strength and intact reflexes and exhibited a non-antalgic gait, negative heeltoe walking, and negative straight-leg-raising. (Tr. 27). Furthermore, Dr. Shugart gave Royal no
restrictions. (Tr. 27). The ALJ found the above facts and objective medical evidence
inconsistent with Royal’s claim of disabling function limitations due to lumbar degenerative disc
disease. (Tr. 27).
The ALJ also found that Royal did not aggressively and frequently seek or receive
ongoing treatment for low back and leg symptoms in 2011, which the ALJ found supported his
credibility finding. (Tr. 27). The ALJ noted that Dr. T. Miller’s medical records from June and
August 2012 did not demonstrate any abnormal findings for Royal’s lumbar spine, that March
2011 arthritis panels were negative, and May 2012 ANA, RA, and SED rate screenings reflected
no significant abnormalities for Royal’s back and lower extremities. (Tr. 27).
In June 2012, Royal reported that Cymbalta helped his symptoms and that the burning
sensations in his legs had resolved. (Tr. 27). Additionally, the objective medical evidence
indicated that Royal could transition from seated to standing positions and could get on and off
exam tables independently and without difficulty. (Tr. 27). Royal exhibited positive reflexes

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and full lower extremity strength at 5/5, despite an absent left ankle reflex. (Tr. 27). The ALJ
also noted that a May 2012 examination revealed negative straight leg raises, 5/5 strength, a nonantalgic gait, and a normal heel and toe walk. (Tr. 27). The ALJ concluded that the above
objective medical findings did not support Royal’s claim that a more restrictive RFC was
necessary due to back and lower extremity weakness. (Tr. 27).
The ALJ found Royal incredible because he reported to Dr. Shugart that his back and legs
“are not too bad” on May 25, 2011, but then he told Nurse V. Bradley in May 2012 that the
second surgery did not improve his pain. (Tr. 27). In June 2012, Royal reported back and leg
pain at only “1-2/10” and he exhibited 100% of general active and passive ranges of motion in
his spine, arms, and legs and 75% of lumbar active flexion. (Tr. 27). He also exhibited strength
of 4/5 and 5/5 for his leg and buttock muscles. (Tr. 27). Although he had a decreased left S1
achilles reflex, Royal demonstrated a normal gait and balance. (Tr. 27). However, Royal had a
slight tenderness over the lumbar paraspinals and physical therapy was recommended. (Tr. 27).
The ALJ determined that the above medical evidence supported his RFC assessment. (Tr. 27).
The ALJ stated that Royal used a cane despite no treating physician prescribing one. (Tr.
28). Furthermore, the ALJ found the record unclear whether a cane, even if prescribed, would be
needed for balance or walking on difficult terrain. (Tr. 28). The ALJ concluded that Royal
appeared comfortable at the hearing, remaining seated did not appear to strain him, and he could
move his hands to speak without needing them for support. (Tr. 28). Royal alleged his legs
were burning and shaking, but the ALJ did not notice much change in Royal’s demeanor or
stance. (Tr. 28).
Royal alleged severe neck pain that made it difficult to hold his head up or even lift a
remote. (Tr. 28). He also stated he could not turn his neck at times, his arms and hands became

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stiff and tired, he experienced numbness in his hands and arms, and he had difficulty holding his
arms on a steering wheel. (Tr. 28). Dr. Miller’s notes indicated complaints of paresthesia in
Royal’s upper extremities in May 2011, and magnetic resonance imaging revealed some
degenerative disc disease. (Tr. 28). However, the ALJ concluded that the objective medical
evidence did not support the degree of limitations that Royal alleged. (Tr. 28).
The ALJ admitted there was MRI evidence of a spur/disc complex at C2-3, but he stated
it was described as “minimal” and there was no evidence of thecal mass effect, stenosis, or
foraminal stenosis in Royal’s cervical spine. (Tr. 28). Additionally, the ALJ noted that Royal
did not aggressively seek or receive treatment for cervical complaints since the alleged onset
date. (Tr. 28). Arthritis panels in March 2011 and May 2012 were negative, and there was no
evidence that Royal underwent cervical spine surgery or that one was recommended since the
alleged onset date. (Tr. 28).
June 2012 physical therapy notes indicated general and passive ranges of motion of 100%
of the spine and upper extremities. (Tr. 28). Also at that time, Royal exhibited grip strength of
105 pounds on the right and 120 pounds on the left, but he showed decreased strength in his neck
flexors and decreased cervical flexion and extension. (Tr. 28). Royal had slight tenderness over
the cervical paraspinals but did not exhibit a loss of reflexes in his upper extremities. (Tr. 28).
The ALJ found that Dr. Miller’s treatment notes from June 2012 through August 2012
did not document objective medical evidence that supported Royal’s claims of disabling
symptoms and function limitations, and he was found in no acute distress during that period.
(Tr. 28). When Royal completed physical therapy in August 2012, he alleged burning upper
extremity symptoms and weakness but exhibited pain free lumbar and cervical motion and

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improved strength and stabilization. (Tr. 28). The ALJ indicated that the above findings
supported the conclusion that Royal was incredible. (Tr. 28).
The ALJ indicated that Royal used his hands while talking and appeared able to turn his
neck without significant difficulty at the hearing. (Tr. 29). Although Royal claimed he had
difficulty driving due to neck and arm problems, he admitted he could drive occasionally. (Tr.
29). A September 2012 electromyography test revealed mild carpal tunnel syndrome and no
evidence of cervical radiculopathy. (Tr. 29). The ALJ found the above facts inconsistent with
Royal’s claim of a cervical impairment more imposing than the RFC assessment. (Tr. 29).
Royal alleged that carpal tunnel syndrome in his right hand caused numbness and made it
difficult to grip and pick up small objects. (Tr. 29). He complained to Dr. Miller about right
hand symptoms on March 2, 2011, but his right hand felt better and was less swollen by March
30, 2011. (Tr. 29). Royal did not receive surgery for his carpal tunnel syndrome, he could move
his hands during the hearing, and his treating physicians did not note any difficulty with
handling, fingering, or feeling with his hands. (Tr. 29). Rather, he only exhibited tenderness to
palpation of his right hand, minimal swelling, and was missing the second digit on his right hand.
(Tr. 29). Royal claimed he could not use a screwdriver, but admitted he could use eating
utensils. (Tr. 29). Except for a missing second digit, an x-ray of his right hand was negative.
(Tr. 29). Additionally, the missing second digit did not prevent Royal from working as a wire
harness assembler, lather programmer, or fork lift driver. (Tr. 29).
Royal also alleged he felt shaky, had frequent headaches lasting two or three days, and he
suffered from left ankle and knee pain. (Tr. 29). However, the ALJ noted that he did not
aggressively seek or frequently receive treatment for head, ankle, or knee pain. (Tr. 29).
Additionally, the medical records did not include a diagnostic testing demonstrating a severe

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ankle or knee impairment. (Tr. 29). An x-ray on Royal’s left knee was negative, and a physical
examination following his second lumbar spine surgery was unremarkable. (Tr. 29). Although
Dr. Miller stated that Royal had fibromyalgia in August 2012, the ALJ found no evidence to
support a finding that it constituted a severe and unremitting impairment. (Tr. 29). Rather, the
ALJ concluded there was no evidence in the record that Royal exhibited the typical fibromyalgia
tender points. (Tr. 29).
The ALJ concluded that Royal did not have a severe and medically determinable
headache impairment. (Tr. 30). To reach that conclusion, the ALJ noted a number of
characteristics about headache impairments that Royal’s medical records failed to document.
(Tr. 30). First, the ALJ indicated that the headaches were not the result of a serious illness, there
were not twelve months of ongoing neurological deficits associated with headaches, and the
headaches were not associated with the following for twelve months: fever, weakness, loss of
balance, falling, numbness, tingling, confusion, personality or vision changes, shortness of
breath, or dizziness. (Tr. 30). Additionally, the headaches did not occur in a cluster or cyclic
formation, were not triggered by strenuous activity, exertion, or bending and coughing, and the
headaches were not unresponsive to prescribed treatment. (Tr. 30). Furthermore, Royal did not
frequently seek emergency room treatment or hospitalization for uncontrollable headaches, and
his treating physicians did not document uncontrollable headaches that significantly limited his
functions for twelve months in duration. (Tr. 30).
The ALJ indicated that Royal alleged fibromyalgia, which was diagnosed for a short
period of time. (Tr. 30). The ALJ stated that Royal may have fibromyalgia type pain, but noted
the treatment records and non-medical facts did not indicate pain that precluded full strength or
prevented a normal gait. (Tr. 30). Additionally, he concluded that Royal’s pain did not limit his

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activity to an extent that caused atrophy. (Tr. 30). Rather, the ALJ determined that Royal’s pain
did not prevent him from walking without deficit, using full motion for his joints, bending,
lifting, carrying, sitting, standing, or using full strength of his muscles. (Tr. 30).
Royal claimed he did not do any cooking, shopping, or household chores, and his wife
testified that he did nothing. (Tr. 30). The ALJ found that the objective medical evidence did
not support those claims because there was no evidence of muscle atrophy, which the ALJ
concluded could reasonably be present based on the alleged inactivity. (Tr. 30). Additionally,
the ALJ indicated that Royal could drive occasionally, care for his personal needs, watch
television, and use a riding mower for short time periods, which the ALJ determined reduced
Royal’s credibility for the degree of his limitations. (Tr. 30). Furthermore, Royal received
unemployment compensation in 2011 suggesting that he told the State of Indiana that he could
work but could not find a job. (Tr. 31).
Royal testified he did not experience any medication side effects, except for nausea and a
drunken feeling when he took Vicodin. (Tr. 31). The ALJ found that Royal’s physicians did not
find any persistent or adverse side effects due to prescribed medication. (Tr. 31). The ALJ also
found that Royal was not prescribed an assistive device for a prolonged use for the purpose of
ambulation, motion, or balance. (Tr. 31). Royal did not seek treatment on a regular basis from a
pain clinic or a work hardening program and did not frequently report any acute distress. (Tr.
31). Additionally, Royal was not reported to exhibit significant pain behaviors or signs of
abnormal breathing, uncomfortable movement, or elevated blood pressure. (Tr. 31).
At step four, the ALJ determined that Royal was unable to perform his past relevant
work. (Tr. 31). Considering Royal’s age, education, work experience, and RFC, the ALJ
concluded that there were jobs in the national economy that Royal could perform, including

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bench worker (1,000 jobs in Indiana and 30,000 jobs nationally), hand mounter (1,000 jobs in
Indiana and 30,000 jobs nationally), and assembler (1,000 jobs in Indiana and 24,000 jobs
nationally).
Discussion
The standard for judicial review of an ALJ’s finding that a claimant is not disabled within
the meaning of the Social Security Act is limited to a determination of whether those findings are
supported by substantial evidence. 42 U.S.C. § 405(g) (“The findings of the Commissioner of
Social Security, as to any fact, if supported by substantial evidence, shall be conclusive.”);
Moore v. Colvin, 743 F.3d 1118, 1120–21 (7th Cir. 2014); Bates v. Colvin, 736 F.3d 1093, 1097
(7th Cir. 2013) (“We will uphold the Commissioner’s final decision if the ALJ applied the
correct legal standards and supported her decision with substantial evidence.”); Pepper v. Colvin,
712 F.3d 351, 361–62 (7th Cir. 2013); Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005);
Lopez ex rel Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). Substantial evidence has
been defined as “such relevant evidence as a reasonable mind might accept to support such a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 852
(1972) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed.
2d 140 (1938)); see Bates, 736 F.3d at 1098; Pepper, 712 F.3d at 361–62; Jens v. Barnhart, 347
F.3d 209, 212 (7th Cir. 2003); Sims v. Barnhart, 309 F.3d 424, 428 (7th Cir. 2002). An ALJ’s
decision must be affirmed if the findings are supported by substantial evidence and if there have
been no errors of law. Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013); Rice v. Barnhart,
384 F.3d 363, 368–69 (7th Cir. 2004); Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002).
However, “the decision cannot stand if it lacks evidentiary support or an adequate discussion of
the issues.” Lopez, 336 F.3d at 539.

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Disability and supplemental insurance benefits are available only to those individuals
who can establish “disability” under the terms of the Social Security Act. The claimant must
show that he is unable “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 regulations enumerate the five-step sequential
evaluation to be followed when determining whether a claimant has met the burden of
establishing disability. 20 C.F.R. §§ 404.1520, 416.920. The ALJ first considers whether the
claimant is presently employed or “engaged in substantial gainful activity.” 20 C.F.R. §§
404.1520(b), 416.920(b). If he is, the claimant is not disabled and the evaluation process is over.
If he is not, the ALJ next addresses whether the claimant has a severe impairment or combination
of impairments that “significantly limits . . . physical or mental ability to do basic work
activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c); see Williams v. Colvin, 757 F.3d 610, 613
(7th Cir. 2014) (discussing that the ALJ must consider the combined effects of the claimant’s
impairments). Third, the ALJ determines whether that severe impairment meets any of the
impairments listed in the regulations. 20 C.F.R. § 401, pt. 404, subpt. P, app. 1. If it does, then
the impairment is acknowledged by the Commissioner to be conclusively disabling. However, if
the impairment does not so limit the claimant’s remaining capabilities, the ALJ reviews the
claimant’s “residual functional capacity” and the physical and mental demands of his past work.
If, at this fourth step, the claimant can perform his past relevant work, he will be found not
disabled. 20 C.F.R. §§ 404.1520(e), 416.920(e). However, if the claimant shows that his
impairment is so severe that he is unable to engage in his past relevant work, then the burden of
proof shifts to the Commissioner to establish that the claimant, in light of his age, education, job

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experience, and functional capacity to work, is capable of performing other work and that such
work exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1520(f),
416.920(f).
First, Royal has argued that the ALJ’s determination that Royal and his wife were
incredible was patently wrong. This court will sustain the ALJ’s credibility determination unless
it is “patently wrong” and not supported by the record. Bates v. Colvin, 736 F.3d 1093, 1098
(7th Cir. 2013); Schmidt v. Astrue, 496 F.3d 833, 843 (7th Cir. 2007); Prochaska v. Barnhart,
454 F.3d 731, 738 (7th Cir. 2006) (“Only if the trier of fact grounds his credibility finding in an
observation or argument that is unreasonable or unsupported . . . can the finding be reversed.”).
The ALJ’s “unique position to observe a witness” entitles his opinion to great deference. Nelson
v. Apfel, 131 F.3d 1228, 1237 (7th Cir. 1997); Allord v. Barnhart, 455 F.3d 818, 821 (7th Cir.
2006). However, if the ALJ does not make explicit findings and does not explain them “in a way
that affords meaningful review,” the ALJ’s credibility determination is not entitled to deference.
Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir. 2002). Further, “when such determinations rest
on objective factors or fundamental implausibilities rather than subjective considerations [such
as a claimant’s demeanor], appellate courts have greater freedom to review the ALJ’s decision.”
Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000); see Bates, 736 F.3d at 1098.
The ALJ must determine a claimant’s credibility only after considering all of the
claimant’s “symptoms, including pain, and the extent to which [the claimant’s] symptoms can
reasonably be accepted as consistent with the objective medical evidence and other evidence.”
20 C.F.R. '404.1529(a); Arnold v. Barnhart, 473 F.3d 816, 823 (7th Cir.2007) (“[S]ubjective
complaints need not be accepted insofar as they clash with other, objective medical evidence in
the record.”); Scheck v. Barnhart, 357 F.3d 697, 703 (7th Cir. 2004). If the claimant’s

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impairments reasonably could produce the symptoms of which the claimant is complaining, the
ALJ must evaluate the intensity and persistence of the claimant’s symptoms through
consideration of the claimant’s “medical history, the medical signs and laboratory findings, and
statements from [the claimant, the claimant’s] treating or examining physician or psychologist,
or other persons about how [the claimant’s] symptoms affect [the claimant].” 20 C.F.R.
'404.1529(c); see Schmidt v. Barnhart, 395 F.3d 737, 746–47 (7th Cir. 2005) (“These
regulations and cases, taken together, require an ALJ to articulate specific reasons for
discounting a claimant’s testimony as being less than credible, and preclude an ALJ from merely
ignoring the testimony or relying solely on a conflict between the objective medical evidence and
the claimant’s testimony as a basis for a negative credibility finding.”).
Although a claimant’s complaints of pain cannot be totally unsupported by the medical
evidence, the ALJ may not make a credibility determination “solely on the basis of objective
medical evidence.” SSR 96-7p, at *1; see Moore v. Colvin, 743 F.3d 1118, 1125 (7th Cir. 2014)
(“‘[T]he ALJ cannot reject a claimant’s testimony about limitations on her daily activities solely
by stating that such testimony is unsupported by the medical evidence.’”) (quoting Indoranto,
374 F.3d at 474); Indoranto, 374 F.3d at 474; Carradine v. Barnhart, 360 F.3d 751, 754 (7th
Cir. 2004) (“If pain is disabling, the fact that its source is purely psychological does not disentitle
the applicant to benefits.”). Rather, if the
[c]laimant indicates that pain is a significant factor of his or her
alleged inability to work, the ALJ must obtain detailed descriptions
of the claimant’s daily activities by directing specific inquiries
about the pain and its effects to the claimant. She must investigate
all avenues presented that relate to pain, including claimant’s prior
work record, information and observations by treating physicians,
examining physicians, and third parties. Factors that must be
considered include the nature and intensity of the claimant’s pain,
precipitation and aggravating factors, dosage and effectiveness of
any pain medications, other treatment for relief of pain, functional
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restrictions, and the claimant’s daily activities. (internal citations
omitted).
Luna v. Shalala, 22 F.3d 687, 691 (7th Cir. 1994); see Zurawski v. Halter, 245 F.3d 881,
887-88 (7th Cir. 2001).
In addition, when the ALJ discounts the claimant’s description of pain because it is
inconsistent with the objective medical evidence, he must make more than “a single, conclusory
statement . . . . The determination or decision 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, at *2; see Minnick v.
Colvin, 775 F.3d 929, 937 (7th Cir. 2015) (“[A] failure to adequately explain his or her
credibility finding by discussing specific reasons supported by the record is grounds for
reversal.”) (citations omitted); Zurawski, 245 F.3d at 887; Diaz v. Chater, 55 F.3d 300, 307-08
(7th Cir. 1995) (finding that the ALJ must articulate, at some minimum level, his analysis of the
evidence). He must “build an accurate and logical bridge from the evidence to [his] conclusion.”
Zurawski, 245 F.3d at 887 (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). A
minor discrepancy, coupled with the ALJ’s observations is sufficient to support a finding that the
claimant was incredible. Bates, 736 F.3d at 1099. However, this must be weighed against the
ALJ’s duty to build the record and not to ignore a line of evidence that suggests a disability.
Bates, 736 F.3d at 1099.
Royal has argued that the ALJ erred by drawing negative inferences from his receipt of
unemployment benefits without first inquiring into and considering the totality of the
circumstances. “It is not inappropriate to consider a claimant’s unemployment income in a
credibility determination.” Miocic v. Astrue, 890 F. Supp. 2d 1046, 1059 (N.D. Ill. 2012) (citing
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Schmidt v. Barnhart, 395 F.3d 737, 745–46 (7th Cir. 2005)). “[W]e are not convinced that a
Social Security claimant’s decision to apply for unemployment benefits and represent to state
authorities and prospective employers that he is able and willing to work should play absolutely
no role in assessing his subjective complaints of disability.” Schmidt, 395 F.3d at 746.
However, a disabled claimant may apply for unemployment benefits because he has no other
income. Richards v. Astrue, 370 Fed. Appx. 727, 731 (7th Cir. 2010); see Raducha v. Colvin,
2014 WL 4905702, at *9 (N.D. Ind. Sept. 30, 2014) (distinguishing the case from Richards
because the application for unemployment benefits was not the ALJ’s sole basis for his
credibility determination); see also Shell v. Colvin, 2013 WL 5257830, at *23 (N.D. Ind. Sept.
16, 2013) (finding the ALJ erred by not inquiring into the claimant’s unemployment benefits
when he applied for unemployment benefits before his alleged onset date and received them
before his hospitalization); Kelly v. Colvin, 2013 WL 1332203, at *9–10 (N.D. Ind. Mar. 29,
2013) (finding the ALJ properly considered the claimant’s unemployment benefits as one of
many factors in assessing credibility).
Royal alleged a disability onset date of December 9, 2010 and received unemployment
benefits in 2011. The ALJ considered Royal unemployment benefits application along with a
number of other factors in assessing Royal’s credibility. Because the ALJ considered the
unemployment benefits among many factors and Royal applied for unemployment benefits after
his alleged onset date, the ALJ properly considered Royal’s unemployment benefits application
in assessing his credibility.
Second, Royal has claimed that the ALJ erred by failing to explain how Royal’s ability to
mow his lawn and perform other household activities translated into an ability to work full time.
However, the ALJ relied on Royal’s household activities to determine that his claims were not

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entirely credible regarding the degree of alleged limitations, rather than translating Royal’s
household activities into an ability to work full time as Royal alleged. The ALJ indicated that
Royal stated he did not cook, shop, or perform household chores, and his wife testified that he
did nothing. However, the ALJ compared that to Royal’s other statement that indicated he could
drive occasionally, care for his personal needs, watch television, and use a riding mower for
short time periods. Based on the conflicting claims, the ALJ found Royal and his wife not
entirely credible. The ALJ properly considered Royal’s daily activities pursuant to 20 C.F.R. §
404.1529(c)(3)(i). Furthermore, “[a]n ALJ may consider a claimant’s daily activities when
assessing credibility . . . .” Jelinek v. Astrue, 662 F.3d 805, 812 (7th Cir. 2011).
Third, Royal has claimed that the ALJ erred by determining that he was less credible
because he used a cane when one was not prescribed. Royal indicated that he did not need a
prescription to use a cane and that a doctor did not need to prescribe one in order for him to
credibly use one for ambulation. See Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010)
(“Absurdly, the administrative law judge thought it suspicious that the plaintiff uses a cane, when
no physician had prescribed a cane. A cane does not require a prescription; it had been
suggested to the plaintiff by an occupational therapist.”). The Commissioner distinguished this
case from Parker by noting that Royal presented no evidence of a need for a cane. The ALJ
indicated that the record did not document why Royal needed a cane if one were prescribed.
However, the ALJ did not adequately explain why Royal’s use of a cane, even if not prescribed,
lessened his credibility. Rather, the ALJ simply found it suspicious that Royal used a cane when
one was not prescribed, but as discussed above, a cane does not require a prescription.
Therefore, the ALJ did not adequately explain why Royal’s use of a cane adversely affected his
credibility.

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Next, Royal has argued that the ALJ erred by finding his statements to Dr. Shugart in
May 2011 and to Nurse Bradley in May 2012 inconsistent. After surgery in May 2011, Royal
told Dr. Shugart that his back and legs “are not too bad” but then told Nurse Bradley, in May
2012, that the surgery did not improve his pain. (Tr. 27). The ALJ found those statements
inconsistent and that they “d[id] not enhance his overall credibility.” (Tr. 27). The ALJ did not
adequately explain how those statements contradict one another considering they occurred one
year apart and Royal reported that his pain was progressively getting worse in June 2012.
Royal also has argued that the ALJ improperly found him incredible because he
“appeared comfortable at the hearing” and did not “appear to change much in the form of
demeanor or stance.” (Tr. 28). Royal alleged that the ALJ used a “sit and squirm” test and that
the facts did not support his conclusion. However, the Seventh Circuit repeatedly has endorsed
the role of observation in credibility determinations. Powers v. Apfel, 207 F.3d 431, 436 (7th
Cir. 2000); see Oakes v. Astrue, 258 F. App’x 38, 43 (7th Cir. 2007); Olsen v. Colvin, 551 F.
App’x 868, 875 (7th Cir. 2014) (“[I]t was appropriate for the ALJ to consider her actions during
the administrative hearing.”). The ALJ determined that Royal did not appear to strain to remain
seated and could use his hands to speak without requiring them for support during the hearing.
Additionally, he noted that Royal alleged his legs were burning and shaking but concluded that
his demeanor and stance did not change much. Although Royal alleged that the facts did not
support the ALJ’s conclusion, the ALJ reasonably considered Royal’s appearance and adequately
explained his findings.
Next, Royal has alleged that the ALJ improperly concluded that the objective medical
evidence did not support Royal’s alleged degree of limitations. First, Royal claimed that the
ALJ’s conclusion was based on an incomplete, selective review of the objective medical

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evidence. The ALJ cited Physical Medicine Consultant treatment notes from June 2012 that
reflected that Cymbalta helped Royal’s symptoms including resolving a prior burning sensation
in his leg muscles. Royal noted that the ALJ failed to discuss that Cymbalta did not resolve the
numbness and tingling in his legs and argued that the ALJ must at least minimally discuss
evidence that contradicts the ALJ’s decision. However, an ALJ does not need to discuss every
piece of evidence but is only prohibited from ignoring an entire line of evidence that supports a
finding of disability. Jones v. Astrue, 623 F.3d 1155, 1162 (7th Cir. 2010) (citing Terry v.
Astrue, 580 F.3d 471, 477 (7th Cir. 2009)). Although the ALJ failed to explicitly note that
Cymbalta did not completely resolve Royal’s leg numbness and tingling, he indicated that it
helped his symptoms and had previously discussed Royal’s leg numbness during his review of
Dr. Shugart’s May 2011 medical treatment records.
Royal further has complained that the ALJ relied on selective portions of his physical
therapy records. Specifically, Royal argued that the ALJ ignored Royal’s lack of improvement
in lower extremity and neck strength and his continued complaints of fatigue. However, the ALJ
discussed Royal’s physical therapy notes from May and June 2012. (Tr. 27). The ALJ found
that the physical therapy notes failed to support Royal’s claims because he demonstrated initial
lower extremity strength of 4/5 or 5/5 and through physical therapy either maintained his
strength or slightly improved. (Tr. 27). Additionally, in support of his finding, the ALJ
discussed Royal’s low back and leg pain levels, his pain free lumbar and cervical motion, and his
normal gait and balance. (Tr. 27). The ALJ did not ignore Royal’s alleged weakness or
depressed muscle strength.
Furthermore, Royal has alleged that the ALJ erred by failing to discuss Dr. Miller’s
referral to a rheumatologist and to physical therapy for complaints of pain and tingling in his

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legs. However, the ALJ did discuss Dr. Miller’s findings including that Royal was in no acute
distress during his treatment, had improved strength and stabilization, and exhibited pain free
cervical and lumbar motion. The ALJ determined that Dr. Miller’s findings failed to support
Royal’s claims of a more restrictive RFC. Although the ALJ did not discuss Dr. Miller’s
referral, he adequately discussed the objective medical evidence by reviewing Dr. Miller’s
findings.
Royal also has alleged that the ALJ based his credibility determination on improper
inferences. First, Royal argued that the ALJ drew an improper negative inference based on the
lack of “treatment aggressively sought and frequently received for ongoing complaints.” The
ALJ directed a negative inference against Royal’s credibility for his lack of aggressively seeking
or frequently receiving treatment for low back and leg symptoms, cervical complaints, severe
and unremitting head, ankle, and knee pains, and uncontrollable headaches. (Tr. 27–30). An
individual’s statements may be less credible if the level or frequency of treatment is inconsistent
with the level of complaints. SSR 96-7p.
However, the adjudicator must not draw any inferences about an
individual’s symptoms and their functional effects from a failure to
seek or pursue regular medical treatment without first considering
any explanations that the individual may provide, or other
information in the case record, that may explain infrequent or
irregular medical visits or failure to seek medical treatment.
SSR 96-7p.
The ALJ did not question Royal about his lack of treatment or indicate that he considered
any explanations for the lack of treatment. See Craft v. Astrue, 539 F.3d 668, 679 (7th Cir.
2008) (finding that the ALJ drew a negative inference regarding the claimant’s credibility for his
lack of medical care, but she failed to question him about the lack of treatment during that
period); Roddy v. Astrue, 705 F.3d 631, 638 (7th Cir. 2013) (explaining that the ALJ must elicit
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a reason for failing to pursue medical treatment). Therefore, the ALJ cannot draw a negative
inference from Royal’s lack of treatment because he did not first consider any explanations for
the lack of treatment.
Next, Royal has claimed that the ALJ drew an improper negative inference based on the
lack of evidence of atrophy. The ALJ found that Royal did not exhibit any long-lasting muscle
loss or muscle atrophy, “which might reasonably be expected if [Royal] were actually as inactive
as he and his wife alleged.” (Tr. 30). However, it is not clear how the ALJ concluded that
someone with Royal’s conditions should exhibit muscle atrophy or muscle loss. In Parker, the
court found that the ALJ did not build an accurate and logical bridge when he concluded the
claimant was not entirely credible because she did not exhibit muscle atrophy, extended muscle
loss, or extended reflex abnormalities. Parker v. Colvin, 2014 WL 6750047, at *10 (N.D. Ind.
Dec. 1, 2014). The court found it unclear how the ALJ determined that someone with
debilitating back pain should demonstrate muscle atrophy, muscle loss, or reflex abnormalities.
Parker, 2014 WL 6750047 at *10; see Rodriguez v. Barnhart, 2002 WL 31155056, at *6 (N.D.
Ill. Sept. 27, 2002) (reversing an ALJ’s conclusion that normal deep tendon reflexes and intact
leg strength contradicted a claimant’s allegation of severe back and leg pain because the ALJ did
not rely on any medical authority of record); Yousif v. Chater, 901 F. Supp. 1377, 1385 (N.D.
Ill. 1995) (“Nowhere in the record is there testimony by a doctor that the pain caused by [the
claimant’s] condition ‘usually’ gives rise to the physical manifestations that the ALJ found
lacking.”). “ALJs must not succumb to the temptation to play doctor and make their own
independent medical findings.” Rohan v. Chater, 98 F. 3d 966, 970 (7th Cir. 1996).
In finding Royal incredible because he did not exhibit any extended loss of muscle
strength or muscle atrophy, the ALJ did not cite any medical evidence or opinions that indicated

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that Royal should exhibit those physical manifestations based on his claims or condition.
Furthermore, the record does not support the finding that Royal must exhibit muscle atrophy or
extended muscle loss to be credible. The Commissioner cited Brihn v. Astrue, to argue that the
ALJ may consider a lack of objective medical evidence, such as muscle atrophy, in assessing
credibility. Brihn v. Astrue, 332 F. App’x 329, 333 (7th Cir. 2009). However, in that case, the
ALJ relied on an impartial medical expert who concluded that the claimant’s allegation of
muscle weakness was unsubstantiated by the lack of strength testing to evaluate the impairment
or an exercise routine to counteract atrophy. Brihn, 332 F. App’x at 331. As discussed above,
the medical record is devoid of a medical expert concluding that Royal should exhibit muscle
atrophy or extended muscle loss to substantiate his claims. Therefore, the ALJ improperly drew
an adverse inference from the lack of evidence of muscle atrophy or extended muscle loss.
Based on the above discussion, the court finds that the ALJ’s credibility determination
was patently wrong and not substantially supported by the evidence. Although the ALJ properly
considered other factors in assessing Royal’s credibility, he erred in considering Royal’s use of a
cane and the allegedly inconsistent statements from May 2011 and 2012. Additionally, he
improperly drew negative inferences from Royal’s lack of treatment and the lack of evidence of
muscle atrophy and extended muscle loss. This court cannot find that the ALJ’s credibility
determination was supported by substantial evidence and the ALJ is directed to address those
issues on remand.
Next, Royal has argued that the ALJ failed to adequately account for all of his
impairments in the RFC assessment. SSR 96-8p explains how an ALJ should assess a claimant’s
RFC at steps four and five of the sequential evaluation. In a section entitled, “Narrative

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Discussion Requirements,” SSR 96-8p specifically spells out what is needed in the ALJ’s RFC
analysis. This section of the Ruling provides:
The RFC assessment must include a narrative discussion
describing how the evidence supports each conclusion, citing
specific medical facts (e.g., laboratory findings) and nonmedical
evidence (e.g., daily activities, observations). In assessing RFC,
the adjudicator must discuss the individual’s ability to perform
sustained work activities in an ordinary work setting on a regular
and continuing basis (i.e., 8 hours a day, for 5 days a week, or an
equivalent work schedule), and describe the maximum amount of
each work-related activity the individual can perform based on the
evidence available in the case record. The adjudicator must also
explain how any material inconsistencies or ambiguities in the
evidence in the case record were considered and resolved.
SSR 96-8p (footnote omitted). Thus, as explained in this section of the Ruling, there is a
difference between what the ALJ must contemplate and what he must articulate in his written
decision. “The ALJ is not required to address every piece of evidence or testimony presented,
but he must provide a ‘logical bridge’ between the evidence and his conclusions.” Getch v.
Astrue, 539 F.3d 473, 480 (7th Cir. 2008) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir.
2000)); see Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014). Although the ALJ does not
need to discuss every piece of evidence, he cannot ignore evidence that undermines his ultimate
conclusions. Moore, 743 F.3d at 1123 (“The ALJ must confront the evidence that does not
support her conclusion and explain why that evidence was rejected.”) (citing Terry v. Astrue,
580 F.3d 471, 477 (7th Cir. 2009); Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009); Arnett v.
Astrue, 676 F.3d 586, 592 (7th Cir. 2012)). “A decision that lacks adequate discussion of the
issues will be remanded.” Moore, 743 F.3d at 1121.
First, Royal has argued that the ALJ failed to account for his headaches. The ALJ found
that Royal’s headaches were not a severe medically determinable impairment. To reach that
conclusion, the ALJ cited medical evidence that was missing from the record. He indicated that
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the headaches were not the result of a serious illness, traumatic brain injury, or a condition such
as an aneurysm, tumor, disc disease, or sinus abnormality. The medical records did not
document twelve months of ongoing neurological deficits associated with headaches or that the
headaches had been accompanied by fever, weakness, loss of balance, falling, numbness,
tingling, confusion, personality changes, vision changes, shortness of breath, or dizziness for
twelve months. Additionally, the medical records did not document that the headaches occurred
in cluster or cyclic formations or were triggered by strenuous activity, exertion, or bending and
coughing. Moreover, the medical records did not reflect that the headaches were unresponsive to
prescribed treatment including therapy, dietary changes, or medication or that Royal had sought
emergency room treatment or hospitalization for uncontrollable headaches. Last, the medical
records did not indicate that Royal’s treating physicians reported that he had uncontrollable
headaches that resulted in significant function limitations for twelve months in duration.
Although the ALJ identified what the medical records did not document or show, Royal
argued that the ALJ’s insistence upon such evidence was based on his own lay impressions and
improper. Furthermore, Royal claimed there was no evidence from any doctor or medical
provider that indicated the physical manifestations the ALJ found lacking were required to
establish headaches as a medically determinable impairment. Royal also alleged that Dr. Miller
diagnosed him with headaches, but did not indicate support in the record. Royal also argued that
the ALJ rejected his headache claim solely on the basis that it was not supported by the objective
medical evidence. Moreover, he claimed that the ALJ failed to consider his headaches as a
symptom of his cervical spine impairment. Additionally, Royal indicated that his headaches
started with pain in the back of his neck and moved toward the top of his forehead and that
headaches were a possible symptom of cervical spondylosis.

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The Commissioner argued that Royal failed to establish a more restrictive RFC than the
ALJ. Rather, she claimed that Royal alleged there was sufficient evidence to establish his
headaches as a medically determinable impairment but that he failed to demonstrate how the
headaches were a severe impairment. Additionally, the Commissioner argued that Royal did not
present any evidence that his headaches were a symptom of his cervical spine impairment.
Moreover, she indicated that the ALJ’s assessment was not based solely on his lay opinion but
relied on the lack of evidential support within Royal’s medical treatment records.
Although the ALJ identified a lack of evidence in the medical treatment records, it is not
clear why the ALJ found the listed factors necessary to establish headaches as a medically
determinable impairment. The ALJ did not cite a doctor or other medical source when finding
that the above factors were necessary. Additionally, the ALJ did not mention or discuss Royal’s
allegations of throbbing pain due to headaches or symptoms including nausea, vomiting, and
sensitivity to light that may last two to three days. (Tr. 57, 213). Furthermore, the ALJ solely
relied on the lack of objective medical evidence for rejecting Royal’s headache claim and
Royal’s credibility determination, which this court has found patently wrong. See SSR 96-7p(4)
(“An individual’s statements about the intensity and persistence of pain or other symptoms or
about the effect the symptoms have on his or her ability to work may not be disregarded solely
because they are not substantiated by objective medical evidence.”). It is not clear that the ALJ
considered Royal’s headache allegations because he only discussed the lack of objective medical
evidence.
Finally, Royal has alleged that the ALJ failed to consider his myofascial pain syndrome.
Royal indicated that he was diagnosed with myofascial pain syndrome but that the ALJ failed to
discuss this impairment. However, the Commissioner indicated that the ALJ discussed

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fibromyalgia and alleged that myofascial pain syndrome may develop into fibromyalgia in some
people. Additionally, she claimed that Royal failed to present any medical evidence that his
limitations stemmed from his myofascial pain syndrome. Because the ALJ mistakenly discussed
fibromyalgia, an impairment that Royal did not allege, instead of the diagnosed myofascial pain
syndrome, this court cannot find that the ALJ considered all of Royal’s impairments when
making his RFC assessment. The ALJ is directed to address these issues on remand.
Based on the foregoing reasons, the decision of the Commissioner is REMANDED for
further proceedings consistent with this Order.
ENTERED this 12th day of March, 2015.
/s/ Andrew P. Rodovich
United States Magistrate Judge

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