Lothridge v. Commissioner of Social Security

Filing 25

OPINION AND ORDER: The Court REVERSES and REMANDS this case for further proceedings in accordance with this Opinion and Order. Signed by Chief Judge Theresa L Springmann on 11/29/2017. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
HORTANSIA DONNALEE
LOTHRIDGE,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.

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CAUSE NO.: 1:17-CV-89-TLS

OPINION AND ORDER
Plaintiff Hortansia Donnalee Lothridge seeks review of the final decision of the
Commissioner of the Social Security Administration (“the Commissioner”) denying her
application for disability insurance benefits and for supplemental security income. The Plaintiff
argues that the Commissioner wrongfully denied her disability benefits and supplemental
security income and erred by (1) impermissibly drawing inferences about her symptoms based
on her failure to obtain regular medical treatment without first considering reasons why she
failed to obtain such treatment, and (2) by failing to adequately explain the reasons behind the
weight given to various medical evaluations and opinions.

BACKGROUND
A.

Procedural Background
On May 20, 2013, the Plaintiff filed her Title II application for a period of disability and

disability insurance benefits, as well as a Title XVI application for supplemental security
income, alleging disability beginning on December 14, 2009. (R. 24, ECF No. 19.) Her claims

were denied initially on October 24, 2013, and upon reconsideration on February 20, 2014. (Id.)
On June 24, 2015, the Plaintiff appeared with counsel and testified at a hearing before an
administrative law judge (ALJ). (Id.) Sharon D. Ringenberg, a vocational expert, also appeared
and testified at the hearing. (Id.) On September 1, 2015, the ALJ denied the Plaintiff’s
application, finding she was not disabled prior to her date last insured, December 31, 2014. (R.
24–37.) On January 10, 2017, the ALJ’s decision became the final decision of the Commissioner
when the Appeals Council denied the Plaintiff’s request for review. (R. 1–3.)
On March 11, 2017, the Plaintiff filed this claim [ECF No. 1] in federal court against the
Acting Commissioner of the Social Security Administration.

THE ALJ’S FINDINGS
Disability is defined as the “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A). To be found disabled, a claimant must demonstrate
that his physical or mental limitations prevent him from doing not only his previous work, but
also any other kind of gainful employment that exists in the national economy, considering his
age, education, and work experience. § 423(d)(2)(A).
An ALJ conducts a five-step inquiry in deciding whether to grant or deny benefits.
20 C.F.R. § 404.1520. The first step is to determine whether the claimant no longer engages in
substantial gainful activity (SGA). Id. In the case at hand, the ALJ found that the Plaintiff has
been unable to engage in SGA from her alleged onset date, December 14, 2009, to her date last
insured, December 31, 2014. (R. 24.)

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In step two, the ALJ determines whether the claimant has a severe impairment limiting
his ability to do basic work activities under § 404.1520(c). In this case, the ALJ determined that
the Plaintiff had multiple severe impairments, including fibromyalgia, obesity, chronic
obstructive pulmonary disorder (COPD), asthma, bipolar I disorder, depression, mood disorder,
anxiety, posttraumatic stress disorder (PTSD), and attention deficit disorder (ADD). (R. 26.) The
ALJ found that these impairments caused more than minimal limitations in the Plaintiff’s ability
to perform the basic mental and physical demands of work. (R. 27.) The ALJ also found that the
Plaintiff had multiple non-severe impairments, including hyperlipidemia, hypertension, history
of kidney infection, history of migraines/headaches, allergies, left shoulder disorder,
degenerative disc disease of the lumbar spine, vitamin D deficiency, mild mitral and tricuspid
regurgitation and mild left atrial enlargement. (Id.) As to the Plaintiff’s migraines, allergies, left
shoulder impairment, degenerative disc disease, vitamin D deficiency, and cardiac dysfunction,
the ALJ noted that there was little evidence of significant or ongoing treatment. (Id.)
Step three requires the ALJ to “consider the medical severity of [the] impairment” to
determine whether the impairment “meets or equals one of the [the] listings in appendix 1 . . . .”
§ 404.1520(a)(4)(iii). If a claimant’s impairment(s), considered singly or in combination with
other impairments, rise to this level, there is a presumption of disability “without considering
[the claimant’s] age, education, and work experience.” § 404.1520(d). But, if the impairment(s),
either singly or in combination, fall short, the ALJ must proceed to step four and examine the
claimant’s “residual functional capacity” (RFC)—the types of things he can still do, despite his
limitations—to determine whether he can perform “past relevant work,” § 404.1520(a)(4)(iv), or
whether the claimant can “make an adjustment to other work” given the claimant’s “age,
education, and work experience.” § 404.1520(a)(4)(v).

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The ALJ determined that the Plaintiff’s impairments did not meet or equal any of the
listings in Appendix 1 and that she had the RFC to perform light work, as defined in 20 C.F.R.
§ 404.1567(b) and 416.967(b), except:
She can frequently balance; she can occasionally climb ramps and stairs; she can
occasionally stoop, kneel, crouch and crawl; she can never climb ladders, ropes or
scaffolds; and she should avoid concentrated exposure to extreme cold, extreme
heat, wetness, humidity, noise, vibration, fumes, odors, dusts, gases, poor
ventilation, and hazards. In addition, the claimant can understand, remember and
carry out simple instructions; she can make judgments on simple work-related
decisions; she can respond appropriately to occasional interactions with supervisors
and coworkers, but she should avoid interactions with the general public; she can
respond appropriately to usual work situations; and she can deal with changes in a
routine work setting.
(R. 29.)
After analyzing the record, the ALJ concluded that the Plaintiff was not disabled from her
alleged onset date to her date last insured. The ALJ evaluated the objective medical evidence and
the Plaintiff’s subjective symptoms. The ALJ found that the Plaintiff’s medically determinable
impairments could reasonably be expected to cause some of the alleged symptoms. (R. 30.) But,
the ALJ found that the Plaintiff’s testimony and prior statements regarding the intensity,
persistence, and limiting effects of these symptoms were “not entirely credible.” (Id.) The
Plaintiff testified regarding her level of pain and the functional restrictions on her daily activities.
Specifically, the Plaintiff claimed that she had “difficulty lifting, squatting, bending, standing,
walking, sitting, kneeling, climbing stairs, completing tasks, concentrating, understanding, using
her hands, getting along with others and with her memory.” (Id.) She also testified that she was
unable to work because of “breathing problems and due to pain in her hands, shoulders, back,
hips and legs.” (Id.) She further testified that she uses her inhaler daily, “takes medication for
fibromyalgia and arthritis,” can “stand for five minutes, sit for five to 10 minutes, and lift 10
pounds,” “has difficulty being around other people,” and “takes medication and sees a counselor
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weekly for her mental impairments.” (Id.) However, the ALJ found that “the claimant’s medical
records showed that the claimant’s symptoms have responded well to treatment when she is
compliant with her health care providers’ recommendations.” (R. 31.)
The Plaintiff had past relevant work as a certified nursing assistant, which the vocational
expert advised was semiskilled work generally performed at the medium exertional level but
performed at the heavy exertional level by the Plaintiff. (R. 36.) Thus, the ALJ concluded that
the Plaintiff was not capable of performing any past relevant work. (Id.) However, relying on the
vocational expert’s testimony, the ALJ found that “considering the claimant’s age, education,
work experience, and residual functional capacity, there are jobs that exist in significant numbers
in the national economy that the claimant can perform.” (Id.) Thus, the ALJ found that the
Plaintiff was not disabled as defined in the Social Security Act since her alleged onset date. (R.
37.)

STANDARD OF REVIEW
The decision of the ALJ is the final decision of the Commissioner when the Appeals
Council denies a request for review. Liskowitz v. Astrue, 559 F.3d 736, 739 (7th Cir. 2009). The
Social Security Act establishes that the Commissioner’s findings as to any fact are conclusive if
supported by substantial evidence. See Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995). Thus,
the Court will affirm the Commissioner’s finding of fact and denial of disability benefits if
substantial evidence supports them. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2009).
Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting

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Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Henderson v. Apfel, 179 F.3d 507, 512
(7th Cir. 1999).
It is the duty of the ALJ to weigh the evidence, resolve material conflicts, make
independent findings of fact, and dispose of the case accordingly. Richardson, 402 U.S. at 399–
400. The reviewing court reviews the entire record; however it does not substitute its judgment
for that of the Commissioner by reconsidering facts, reweighing evidence, resolving conflicts in
evidence, or deciding questions of credibility. See Diaz, 55 F.3d at 608. The court will “conduct
a critical review of the evidence,” considering both the evidence that supports, as well as the
evidence that detracts from, the Commissioner’s decision, and “the decision cannot stand if it
lacks evidentiary support or an adequate discussion of the issues.” Lopez ex rel. Lopez v.
Barnhart, 336 F.3d 535, 539 (7th Cir. 2003) (internal quotations omitted).
When an ALJ recommends the denial of benefits, the ALJ must first “provide a logical
bridge between the evidence and [her] conclusions.” Terry v. Astrue, 580 F.3d 471, 475 (7th Cir.
2009) (internal quotation marks and citation omitted). Though the ALJ is not required to address
every piece of evidence or testimony presented, “as with any well-reasoned decision, the ALJ
must rest its denial of benefits on adequate evidence contained in the record and must explain
why contrary evidence does not persuade.” Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008).
However, if substantial evidence supports the ALJ’s determination, the decision must be
affirmed even if “reasonable minds could differ concerning whether [the claimant] is disabled.”
Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).

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ANALYSIS
The Plaintiff argues that the ALJ (1) impermissibly drew inferences about the Plaintiff’s
symptoms and their functional effects based on her failure to seek regular medical treatment
without first considering the reasons for such failure, and (2) did not provide adequate reasons
for the weight assigned to various medical opinions and evaluations.

A.

Failure to Seek Medical Treatment
The Plaintiff claims that the ALJ’s questioning at the hearing and the ALJ’s opinion

overemphasize the fact that the Plaintiff did not seek regular medical treatment for all of her
impairments or failed to comply with treatment plans. But, the Plaintiff points out that the ALJ
failed to ask her why she was non-compliant or failed to seek care. The Commissioner responds
that, to the extent the ALJ considered the Plaintiff’s non-compliance with medical
recommendations and failure to seek medical care, the ALJ was concerned with the conservative
nature of the Plaintiff’s treatment, which was only one factor relevant to the Plaintiff’s
credibility.
“Although a history of sporadic treatment or the failure to follow a treatment plan can
undermine a claimant’s credibility, an ALJ must first explore the claimant’s reasons for the lack
of medical care before drawing a negative inference.” Shauger v. Astrue, 675 F.3d 690, 696 (7th
Cir. 2012); see also Craft, 539 F.3d at 679 (“The 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.”). This is so because “[t]here may be a reasonable explanation behind
[the plaintiff’s] actions, such as she may not have been able to afford the treatment, further
treatment would have been ineffective, or the treatment created intolerable side effects.” Murphy

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v. Colvin, 759 F.3d 811, 816 (7th Cir. 2014). “Good reasons” for failing to obtain treatment “may
include an inability to afford treatment, ineffectiveness of further treatment, or intolerable side
effects. Shauger, 675 F.3d at 696; see also Frierson v. Colvin, No. 2:14-CV-170, 2015 WL
5174058, at *6 (N.D. Ind. Sept. 2, 2015) (finding fault where “[t]he ALJ did not ask Plaintiff
about his compliance with treatment, and the credibility section of his opinion does not address
any reasons for noncompliance, such as inability to afford treatment or the fact that failure to
comply with treatment may be a sign of mental disability rather than a reason to discount its
severity” (citing Kangail v. Barnhart, 454 F.3d 627, 630 (7th Cir. 2006)).
In fact, if an ALJ takes into consideration a claimant’s failure to seek treatment in a
credibility determination, the ALJ is required to inquire as to the reasons for such failure. See
Murphy, 759 F.3d at 816 (finding fault where “the ALJ did not ask [the plaintiff] why she did not
attend all of her physical therapy sessions, or why she did not comply with her home exercise
program”); Epting v. Colvin, No. 2:14-CV-385, 2016 WL 1237888, at *8 (N.D. Ind. Mar. 29,
2016) (“When considering noncompliance with treatment . . . an ALJ is also required [to] make a
determination about whether noncompliance with treatment is justified . . . .”); Galloway v.
Colvin, No. 2:14-CV-24, 2015 WL 893172, at *5 (N.D. Ind. Mar. 3, 2015) (noting that “[h]ad
the ALJ’s opinion actually cited this fact as a reason for finding Plaintiff not credible, it would
have been an error since he did not explore potential reasons why she wasn’t treated that year”
(citing Shauger, 675 F.3d at 696)); Pitaroski v. Colvin, No. 213-CV-00112, 2014 WL 3687234,
at *12 (N.D. Ind. July 24, 2014) (remanding because “the ALJ did not make the requisite inquiry
to discover the reasons [the plaintiff] either failed to seek treatment . . . or to take his medications
as prescribed”). An ALJ may not infer that a claimant “must have felt fine” during gaps in

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treatment without asking why the claimant received no treatment during those gaps. Cole v.
Colvin, 831 F.3d 411, 415 (7th Cir. 2016).
An ALJ also cannot draw a negative inference based on a claimant’s failure to obtain
adequate treatment, even if she has sought some treatment during the relevant time period. See
Visinaiz v. Berryhill, 243 F. Supp. 3d 1008, 1014 (N.D. Ind. 2017) (remanding where “the ALJ
did not ask Plaintiff about her perceived failure to seek adequate treatment” when the Plaintiff’s
only treatment was through medication that provided “some benefit”); Parker v. Colvin, No.
2:15-CV-316, 2016 WL 4435622, at * 5 (remanding where “[t]he ALJ found Plaintiff less than
credible in part because she did not attend as many physical therapy appointments as authorized
by her insurance and was not participating in pain management or the types of pain medication
the ALJ thought would be appropriate” without “ask[ing] Plaintiff about her physical therapy
appointments or pain medication regime[n], and did not credit the pain medications Plaintiff did
take”).
However, the Court may not overturn the ALJ’s credibility determination unless it is
“patently wrong.” See Elder, 529 F.3d at 413–14 (7th Cir. 2007). “An ALJ is in the best position
to determine the credibility of witnesses, and a credibility determination will be overturned only
if it is patently wrong.” Pinder v. Astrue, No. 3:09-CV-363, 2010 WL 2243248, at *4 (N.D. Ind.
June 1, 2010) (citing Craft, 539 F.3d at 678). “Reviewing courts therefore should rarely disturb
an ALJ’s credibility determination, unless that finding is unreasonable or unsupported.” Getch v.
Astrue, 539 F.3d 473, 483 (7th Cir. 2008). However, “a failure to adequately explain his or her
credibility finding by discussing specific reasons supported by the record is grounds for
reversal.” Minnick v. Colvin, 775 F.3d 929, 937 (7th Cir. 2015) (citing Terry, 580 F.3d at 477);
Brindisi v. Barnhart, 315 F.3d 783, 787–88 (7th Cir. 2003); Salaiz v. Colvin, 202 F. Supp. 3d

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887, 893 (N.D. Ind. 2016). “The determination of credibility must be supported by the evidence
and must be specific enough to enable the claimant and a reviewing body to understand the
reasoning.” Craft, 539 F.3d at 678.
In this case, the Court is unable to engage in a meaningful review of the ALJ’s decision
and “cannot assess the validity of the ALJ’s credibility determination because the ALJ did not
ask important questions to determine if” the Plaintiff’s failure to obtain medical care was
“justifiable.” Murphy, 759 F.3d at 816. At the Plaintiff’s hearing, the ALJ spent a significant
amount of time asking the Plaintiff about the medical care she obtained for her impairments. (R.
52–58.) During this line of questioning, the Plaintiff stated that she had discontinued at least two
of her medications because of their side effects (R. 54, 57) and that she was not currently getting
treatment for kidney infections, although she had received such treatment in the past (R. 54–55).
At one point, the ALJ appears to have interrupted the Plaintiff when she implied that she did not
have insurance and had to seek care under her son’s insurance. (R. 57.) The ALJ did not follow
up on any of this testimony regarding reasons for gaps in the Plaintiff’s treatments.
The ALJ’s written opinion indicates that the fact that the Plaintiff’s medical history did
not demonstrate “significant symptoms or treatment” for several of her impairments and that she
failed to attend appointments and continue certain medications weighed negatively against the
Plaintiff’s credibility. (R. 30–33.) For example, in regards to her mental health, the ALJ noted
that the Plaintiff failed to attend scheduled appointments in December 2013, August 2014,
October 2014, and April 2015. (R. 33.) There is no indication that the ALJ inquired as to why the
Plaintiff missed these appointments. The ALJ also noted that the Plaintiff reported that “she had
not taken [one of her] medication[s] for a few days” in February 2014, that “she was not taking
any medication” in February 2015, and that that “she had not taken medication in approximately

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three months in March 2015. (R. 33.) However, with the exception of one medication that the
ALJ acknowledged was discontinued due to a side effect, the ALJ did not inquire as to why the
Plaintiff had ceased taking her other medications. “[F]ailure to comply with treatment may be a
sign of mental disability rather than a reason to discount its severity.” Frierson, 2015 WL
5174058, at *6 (citing Kangail, 454 F.3d at 630). The ALJ also found it significant that there was
a five-year gap in the Plaintiff’s mental health treatment but did not inquire as to the reasons for
that gap.
The ALJ also found it significant that the Plaintiff was advised by her health care
providers to exercise. (R. 32.) However, the ALJ did not inquire whether she followed this
advice or, if not, why she chose not to follow this advice. See Murphy, 759 F.3d at 816 (finding
fault where “the ALJ did not ask [the plaintiff] why . . . she did not comply with her home
exercise program”).
Therefore, to the extent that the ALJ’s failure to consider the reasons for the Plaintiff’s
perceived lack of medical treatment affected her credibility, the Court will remand this case.

B.

Weight Assigned to Medical Opinions
The Plaintiff takes issue specifically with the weight the ALJ assigned to treating

physician James Ehlich, M.D. “A treating physician’s medical opinion is entitled to controlling
weight if it is well supported by objective medical evidence and consistent with other substantial
evidence in the record.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013). ALJs are not
required to give a treating physician’s opinion controlling weight, but in such a case, the ALJ
must “provide a sound explanation for his decision to reject” that opinion. Id. The Commissioner
argues that the ALJ adequately articulated her reasoning for assigning no weight to Dr. Ehlich’s

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opinion. Specifically, the ALJ found that Dr. Ehlich’s opinion was a legal conclusion reserved to
the ALJ, that the opinion did not set forth specific functional limitations relevant to the Plaintiff’s
RFC, and that it was inconsistent with the “relatively benign objective medical finding and lack
of significant clinical findings over multiple exams.” (R. 35.) Moreover, the ALJ noted that Dr.
Ehlich’s opinion appeared to be prepared at the Plaintiff’s request for a note stating that “she is
unable to work for next year.” (Id.)
The Plaintiff contends that “the record of [Dr. Ehlich] as to [the Plaintiff] appears to be
notably deeper than just the visits on record” and “the apparent scope and history [Dr. Ehlich]
ha[d] with treating [the Plaintiff] seems to be more substantial than the records provided.” (Pl.
Br. 9–10, ECF No. 19.) The Plaintiff argues that, had the ALJ contacted Dr. Ehlich in order to
retrieve more detailed records, the ALJ could have given the appropriate weight to Dr. Ehlich’s
opinion. (Id.) But, the Plaintiff does not specifically identify what additional evidence was not
before the ALJ that the ALJ should have considered. “Mere conjecture or speculation that
additional evidence might have been obtained in the case is insufficient to warrant a remand.”
Smullen v. Colvin, No. 1:15-CV-187, 2016 WL 4501113, at *6 (N.D. Ind. Aug. 29, 1016)
(quoting Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir. 2009)). Thus, the Plaintiff must
“identify[] specific, relevant facts that the ALJ overlooked.” Id. See also Abdul Rahim N. AlRamadi v. Colvin, No. 1:14-CV-327, 2015 WL 7761617, at *6 (N.D. Ind. Dec. 2, 2015)
(“Although [the plaintiff] has claimed that he received additional treatment from [the physician],
he has not identified any specific facts or medical evidence that the ALJ failed to obtain.”)
(citing Nelms, 553 F.3d at 1098). Because the Plaintiff has only vaguely asserted that there could
be more evidence out there, the Court cannot say that the Plaintiff was prejudiced by any
omission. See Nelms, 553 F.3d at 1098.

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However, because the Court is remanding on the issue regarding whether the ALJ
properly considered the reasons for the Plaintiff’s perceived lack of medical treatment, the ALJ
should also reconsider whether, in light of those reasons, Dr. Ehlich’s opinion is consistent with
the remainder of the record.

CONCLUSION
Accordingly, the Court REVERSES and REMANDS this case for further proceedings in
accordance with this Opinion and Order.
SO ORDERED on November 29, 2017.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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