Morgan v. Commissioner of Social Security

Filing 29

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 4/4/2016. (tc)

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

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Case No. 1:15-cv-90

OPINION AND ORDER
This matter is before the court on petition for judicial review of the decision of the
Commissioner filed by the plaintiff, Jody Morgan, on April 17, 2015. For the following reasons,
the decision of the Commissioner is REMANDED.
Background
The plaintiff, Jody Morgan, filed an application for Supplemental Security Income on
May 15, 2012, alleging a disability onset date of January 1, 2009. (Tr. 15). The Disability
Determination Bureau denied Morgan’s application on August 14, 2012, and again upon
reconsideration on September 26, 2012. (Tr. 15). Morgan subsequently filed a timely request
for a hearing on October 16, 2012. (Tr. 15). A hearing was held on May 3, 2013, before
Administrative Law Judge (ALJ) Patricia Melvin, and the ALJ issued an unfavorable decision on
August 15, 2013. (Tr. 15–24). Vocational Expert (VE) Charles H. McBee and Morgan testified
at the hearing. (Tr. 15). The Appeals Council denied review, making the ALJ’s decision the
final decision of the Commissioner. (Tr. 5–7).
At step one of the five step sequential analysis for determining whether an individual is
disabled, the ALJ found that Morgan had not engaged in substantial gainful activity since May

15, 2012, the application date. (Tr. 17). At step two, the ALJ determined that Morgan had the
following severe impairments: bulging discs with lumbar radiculopathy, osteoarthritis, and
chronic obstructive pulmonary disease. (Tr. 17). She also found that Morgan’s carpal tunnel
syndrome was non-severe because it did not have more than a minimal effect on her ability to
perform work activities. (Tr. 17). The ALJ indicated that Morgan had a mild limitation in daily
living activities. (Tr. 18). She noted that Morgan could drive, cross-stitch, read, watch
television, shop, do her own laundry, change her bed, and mow her lawn with a riding mower.
(Tr. 18). At step three, the ALJ concluded that Morgan did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments. (Tr. 18).
The ALJ then assessed Morgan’s residual functional capacity as follows:
the claimant has the residual functional capacity to perform light
work as defined in 20 CFR 416.967(b) except she can stand or walk
2 hours out of an 8 hour workday; she can never climb ladders, ropes
and scaffolds; she can occasionally climb ramps and stairs; and she
must avoid concentrated exposure to extreme cold, extreme heat,
wetness and humidity; pulmonary irritants such as fumes, odors, and
gases, chemicals, and poorly ventilated areas.
(Tr. 19). The ALJ explained that in considering Morgan’s symptoms she followed a two-step
process. (Tr. 19). First, she 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 Morgan’s pain or other
symptoms. (Tr. 19). Then, she evaluated the intensity, persistence, and limiting effects of the
symptoms to determine the extent to which they limited Morgan’s functioning. (Tr. 19).
Morgan testified that she had back pain from a herniated and a bulging disc, hip pain
from arthritis, pain from carpal tunnel syndrome, and headaches. (Tr. 19). She stated that her

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pain was seven or eight out of ten without medication and three out of ten with medication. (Tr.
19). She indicated that injections relieved some pain, that she used an inhaler daily for COPD,
and that her inhaler controlled her COPD, despite smoking one pack of cigarettes daily. (Tr. 19).
Morgan wore splints for her carpal tunnel syndrome, and her medication stabilized her
hypertension. (Tr. 19). The ALJ found that Morgan’s impairments could cause her alleged
symptoms but that Morgan was incredible regarding the intensity, persistence, and limiting
effects of her symptoms. (Tr. 19–20).
The ALJ then reviewed Morgan’s objective medical evidence. (Tr. 20–22). She noted
that Morgan had asthma, which caused shortness of breath, and that she used an inhaler three to
four times a day. (Tr. 20). The ALJ indicated that Morgan had a moderate obstructive defect,
but that Morgan underwent a cardiac workup and a stress test, which had normal results. (Tr.
20). Morgan complained of back pain, but the ALJ stated that examination records showed no
apparent distress or back tenderness and that Morgan had a normal gait and reflexes. (Tr. 20).
In March 2011, Morgan went to the emergency room for a panic attack, but a physical
examination was normal and she was discharged in stable condition. (Tr. 20).
Morgan received treatment for lower back pain with Physical Medicine Consultants. (Tr.
20). She complained of pain ranging from zero to ten out of ten. (Tr. 20). Throughout her
treatment from 2011 to 2012, Morgan’s pain lessened to one or two out of ten. (Tr. 21).
Additionally, she did not appear in distress, could transition from sitting to standing
independently, had a normal and nonantalgic gait, and stated that she was doing “quite well.”
(Tr. 21). However, Morgan did have some pain to palpation along the midline of her lower back.
(Tr. 21).

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Morgan underwent a consultative examination with Dr. Gautham Gadiraju on November
15, 2010. (Tr. 21). She complained of lower back and hip pain that radiated into her legs with a
severity of five or six out of ten. (Tr. 21). Morgan said she had difficulty performing tasks, like
cleaning the dishes, but said she could dress herself, tie her shoes, and handle buttons. (Tr. 21).
Dr. Gadiraju found that she had normal joint movement, normal heel and toe walking, normal
tandem walking, a normal squat, and full range of motion in her cervical neck. (Tr. 21). He also
noted that her gait was stable, she was not in acute distress, that she could carry twenty pounds
thirty feet, and lift twenty pounds above her head. (Tr. 21). However, he did indicate that she
had some tenderness to palpation in her upper back and lumbar spine. (Tr. 21). He
recommended that she complete physical therapy and pain management. (Tr. 21).
Morgan also received treatment for lower back and hip pain at Fort Wayne Orthopedics
throughout 2011. (Tr. 21). The ALJ noted that her physical examination was unremarkable and
showed 5/5 strength in her legs. (Tr. 21). Internal and external rotation of Morgan’s hip did not
cause pain or discomfort, but she had some lumbar spine tenderness. (Tr. 21). A lumbar MRI
was unremarkable, except for some paracentral disc herniation at 5-1, and an EMG showed
subtle S1 radiculopathy. (Tr. 21).
On August 6, 2012, Dr. H. M. Bacchus performed a consultative examination, where
Morgan complained of carpal tunnel syndrome, migraines, depression, anxiety, hypertension,
bulging discs, osteoarthritis, and COPD. (Tr. 22). Morgan stated that she was diagnosed with
osteoarthritis in her hips and back and that she was putting off back surgery. (Tr. 22). Dr.
Bacchus indicated that Morgan completed her daily living activities independently, that she was
alert and oriented, that she was not in acute distress, and that she could move on and off the
examination table. (Tr. 22). However, he noted that she had some hip numbness with a positive

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Tinel’s sign, had minor deficits in her range of motion, and had some right leg numbness. (Tr.
22). Morgan’s gait and station were normal, she could walk on her heels, tandem walk, hop, and
squat, and her muscle strength was 5/5. (Tr. 22). Dr. Bacchus concluded that she could work
full time while sitting six to eight hours a day and standing up to two hours a day in a climatecontrolled environment to prevent COPD symptoms. (Tr. 22).
A July 13, 2012 lumbar spine MRI was stable with mild disc and vertebral degenerative
changes at multiple levels. (Tr. 22). A November 20, 2012 view of Morgan’s left hip was
normal and showed no arthritic changes. (Tr. 22). December 2012 treatment notes from
Physical Medicine Consultants indicated that Morgan had a stable, nonantalgic gait and that she
could transition from sitting to standing without difficulty. (Tr. 22). Additionally, records from
February 2013 noted that injections improved her pain by 70 to 80% and that she had no
tenderness in her lower back. (Tr. 22).
The state agency opinions found that Morgan could perform medium work, but the ALJ
limited her to light work considering her subjective complaints. (Tr. 22). The ALJ gave Dr.
Bacchus’s opinion significant weight because it was consistent with the objective medical
evidence. (Tr. 22). The ALJ also noted Morgan’s daily living activities and that she could
concentrate and follow instructions. (Tr. 22). The ALJ concluded that the objective medical
evidence supported her RFC assessment because the x-rays and MRI’s showed mild
degenerative changes and the treatment records noted a normal gait, an ability to transition from
sitting to standing, and no apparent distress. (Tr. 22). Additionally, the ALJ stated that
Morgan’s inhalers controlled her COPD, which had not caused any serious breathing problems
previously. (Tr. 22).

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At step four, the ALJ found that Morgan had no past relevant work. (Tr. 23).
Considering Morgan’s age, education, work experience, and RFC, the ALJ concluded that there
were jobs in the national economy that she could perform, including production assembler (1,000
jobs locally and 90,000 jobs nationally), small product assembler (1,000 jobs locally and 50,000
jobs nationally), and hand packages inspector (500 jobs locally and 50,000 jobs nationally). (Tr.
23–24).
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)). 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). 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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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 she 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. § 416.920. The ALJ first considers whether the claimant is presently employed or
“engaged in substantial gainful activity.” 20 C.F.R. § 416.920(b). If she is, the claimant is not
disabled and the evaluation process is over. If she 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. § 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 her past work. If, at this fourth step, the claimant can perform her past
relevant work, she will be found not disabled. 20 C.F.R. § 416.920(e). However, if the claimant
shows that her impairment is so severe that she is unable to engage in her past relevant work,
then the burden of proof shifts to the Commissioner to establish that the claimant, in light of her
age, education, job experience, and functional capacity to work, is capable of performing other

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work and that such work exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R.
§ 416.920(f).
First, Morgan has argued that the ALJ’s credibility finding 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); 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 her 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).
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.”). If the claimant’s 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

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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); 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
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).
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In addition, when the ALJ discounts the claimant’s description of pain because it is
inconsistent with the objective medical evidence, she 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); 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). She must “build
an accurate and logical bridge from the evidence to her 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 1098. 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.
Morgan has argued that the ALJ failed to identify any support for her credibility finding.
She noted that the ALJ indicated that the objective medical evidence supported the RFC, but that
the ALJ did not explain how it supported her credibility finding. The Commissioner has
identified instances where the ALJ noted inconsistencies between Morgan’s subjective
complaints and the objective medical evidence. For example, the ALJ indicated that testing
showed mild degenerative changes and that Morgan had a normal gait and full muscle strength,
despite Morgan’s complaints of disabling back pain. The Commissioner also has claimed that
the ALJ relied on Morgan’s inconsistent statements regarding her daily living activities. She

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indicated that Morgan told Dr. Gadiraju that she had trouble doing dishes and preparing meals
but that she told the agency that she drove, shopped, cooked, cleaned, mowed the lawn with a
riding mower, and could concentrate and follow instructions.
The ALJ failed to build an accurate and logical bridge from the evidence to her
credibility finding. The ALJ did identify inconsistencies between the objective medical evidence
and Morgan’s subjective complaints, but she could not reject Morgan’s complaints based solely
on the objective medical evidence. See Moore, 743 F.3d at 1125. Although the Commissioner
has argued that the ALJ relied on Morgan’s inconsistent statements regarding her daily living
activities, the ALJ did not indicate that Morgan’s statements were inconsistent or explain how
they were inconsistent. However, even if the ALJ had relied on those statements, it is unclear
why Morgan’s 2010 statement that she had difficulty doing dishes and preparing meals was
inconsistent with her statement, two years later, that she could drive, shop, cook, clean, mow
with a riding mower, concentrate, and follow instructions. Furthermore, Morgan’s 2012
statement also indicated that she could not cook big meals and that she needed her children to
help with cleaning and household chores. (Tr. 242). Therefore, any inconsistency was minor
and without any explanation by the ALJ, it does not provide a sound basis for the ALJ’s
credibility finding. See Beardsley v. Colvin, 758 F.3d 834, 838 (7th Cir. 2014).
The Commissioner also has claimed that the ALJ relied on Morgan’s treatment to find
her incredible. Again, the ALJ did not indicate or explain how Morgan’s treatment rendered her
incredible. The ALJ did mention that Morgan had put off surgery, but she did not inquire into
Morgan’s reasoning. See Craft v. Astrue, 539 F.3d 668, 679 (7th Cir. 2008) (“[T]he ALJ ‘must
not draw any inferences’ about a claimant’s condition from this failure unless the ALJ has
explored the claimant’s explanations as to the lack of medical care.”) (quoting SSR 96-7p).

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Because the ALJ did not explore Morgan’s reasons for declining surgery, she could not rely on
that to find Morgan incredible. Here, the ALJ did not provide a valid reason for finding Morgan
incredible, except for the objective medical evidence. Therefore, the ALJ’s credibility finding
was patently wrong. She should provide more support for her finding on remand.
Second, Morgan has argued that the ALJ’s RFC assessment was incomplete because she
did not account for her carpal tunnel syndrome. 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 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 she must articulate in her 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, she cannot ignore evidence that undermines her ultimate
conclusions. Moore, 743 F.3d at 1123 (“The ALJ must confront the evidence that does not
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support her conclusion and explain why that evidence was rejected.”) (citations omitted). “A
decision that lacks adequate discussion of the issues will be remanded.” Moore, 743 F.3d at
1121.
Morgan has argued that the ALJ’s RFC assessment was incomplete because it did not
acknowledge or account for any limitations from her carpal tunnel syndrome. She indicated that
the ALJ found that it was a non-severe medically determinable impairment, but that she did not
provide any explanation for that finding. Morgan has alleged that her carpal tunnel syndrome
limited her ability to use her hands for more than one hour and that that limitation would
preclude the jobs listed by the VE. The Commissioner has argued that the medical evidence did
not support any work-related limitations due to carpal tunnel syndrome. Therefore, she has
claimed that the ALJ did not need to discuss Morgan’s carpal tunnel syndrome within her RFC
assessment.
The ALJ found that Morgan’s carpal tunnel syndrome was a non-severe impairment. (Tr.
17). However, she did not discuss the impairment any further. It is not clear why the ALJ did
not include any restrictions based on Morgan’s carpal tunnel syndrome or why the syndrome
would not preclude Morgan from using her hands for a prolonged period. Because this matter is
being remanded on a separate issue, the ALJ should consider whether Morgan’s carpal tunnel
syndrome would preclude prolonged use of her hands on remand.
Based on the foregoing reasons, the decision of the Commissioner is REMANDED for
further proceedings consistent with this Order.
ENTERED this 4th day of April, 2016.
/s/ Andrew P. Rodovich
United States Magistrate Judge

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