Klug v. Commissioner of Social Security

Filing 24

OPINION AND ORDER: The Court REVERSES and REMANDS this case. Signed by Chief Judge Theresa L Springmann on 5/4/2018. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ANGELA MARIE KLUG,

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Plaintiff,
v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF THE
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

CAUSE NO.: 1:17-CV-145-TLS

OPINION AND ORDER
Plaintiff Angela Marie Klug seeks review of the final decision of the Commissioner of
the Social Security Administration (Commissioner) denying her application for disability and
disability insurance benefits as well as supplemental security income. The Plaintiff argues that
the Commissioner wrongfully denied her Social Security benefits and erred by failing to include
limitations in her residual functional capacity related to all of her impairments, failing to
appropriately develop the record, and improperly holding the Plaintiff’s non-compliance with
treatment regimens against her credibility.

BACKGROUND
On July 18, 2013, the Plaintiff filed a Title II application for disability and disability
insurance benefits, as well as a Title XVI application for supplemental security income, alleging
disability beginning September 30, 2010. (R. 39.) Her claims were denied initially on February
11, 2014, and upon reconsideration on April 15, 2014. (Id.) On September 10, 2015, the Plaintiff
appeared with a non-attorney representative and testified at a hearing before an administrative

law judge (ALJ). (Id.) Marie N. Kieffer, an impartial vocational expert (VE) also appeared. (Id.)
On February 8, 2017, the ALJ’s decision became the final decision of the Commissioner when
the Appeals Council denied the Plaintiff’s request for review. (R. 1–4.)
On April 10, 2017, the Plaintiff filed this claim 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), 1382c(a)(3)(A). To be found disabled, a claimant
must demonstrate that her physical or mental limitations prevent her from doing not only her
previous work, but also any other kind of gainful employment that exists in the national
economy, considering her age, education, and work experience. §§ 423(d)(2)(A), 1382c(a)(3)(B).
An ALJ conducts a five-step inquiry in deciding whether to grant or deny benefits.
20 C.F.R. §§ 404.1520, 416.920. 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 since her alleged onset date, September 30, 2010. (R.
41.)
In step two, the ALJ determines whether the claimant has a severe impairment limiting
her ability to do basic work activities under §§ 404.1520(c), 416.920(c). In this case, the ALJ
determined that the Plaintiff had multiple severe impairments, including
fibromyalgia/osteoarthritis, in particular back pain with early stenosis and right shoulder pain;

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migraine/sinus headaches; depression; bipolar disorder; and post-traumatic stress disorder
(PTSD). (R. 42.) 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. (Id.) The ALJ
also found that the Plaintiff had bowel problems, but concluded that this condition was nonsevere. (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), 416.920(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),
416.920(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 she can still do physically, despite her limitations—to determine whether she can
perform “past relevant work,” §§ 404.1520(a)(4)(iv), 416.920(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). 416.920(a)(4)(v).
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 that she is additionally limited as follows:
[S]he can only perform a total of two out of eight hours of standing/walking, in
combination, in an 8 hour workday; she can only perform occasional climbing of
ramps and stairs, balancing, stooping, kneeling, crouching, and crawling; she can
never perform climbing ladders, ropes, or scaffolds; she can do only occasional
reaching overhead with the right upper extremity; she should avoid concentrated
exposure to extreme cold, heat, humidity, wetness, loud noise, and bright/flashing
lights; she should avoid even moderate exposure to hazards (i.e. operational control
of dangerous moving machinery, unprotected heights, slippery/uneven/moving
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surfaces). Mentally, the claimant cannot understand, remember, or carry out
detailed or complex job instructions, but can perform simple, repetitive tasks on a
sustained basis (meaning 8 hours a day/5 days a week, or an equivalent work
schedule); she cannot perform tasks requiring intense/focused attention for
prolonged periods; she needs work at a flexible pace (where the employee is
allowed some independence in determining either the timing of different work
activities, or pace of work); she can only tolerate casual/superficial interactions
with others, including supervisors, coworkers, and the general public; and only
occasional interactions with the general public.
(R. 44.)
After analyzing the record, the ALJ concluded that the Plaintiff was not disabled as of her
alleged onset date. (R. 44–52.) The ALJ evaluated the objective medical evidence and the
Plaintiff’s subjective complaints and found that the Plaintiff’s medically determinable
impairments could reasonably be expected to cause some of the alleged symptoms. (R. 46.) 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 that she drops dishes due to cramping in her hand; she tries to clean her house,
but it takes one or two days to complete; she has to use the restroom every hour or two; loud
noises and bright lights trigger her headaches; she experiences alternating constipation and
diarrhea; she can walk for 15 minutes, stand for 10 minutes, sit for 2 hours, and lift/carry 5 to 10
pounds; her right shoulder limits her ability to reach for objects; she has problems
gripping/grasping/using both hands due to cramping; she has nightmare and frequently cries; and
she reported hallucinations, poor attention span, poor memory, and poor task completion. (R. 45–
46.)
Turning to the objective medical evidence, the ALJ found that “the medical evidence of
record does not support the severity of the claimant’s mental or physical impairments” that she
alleged. (R. 46.) The ALJ also noted that the Plaintiff “never demonstrated any obvious pain

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behaviors during the hearing”; rather she “never got up from her seated position during the
hearing and seemed to sit relatively calmly throughout the hearing and answered questions
appropriately without hesitation.” (Id.) The ALJ found that “[w]hile the claimant may experience
some pain and discomfort, the evidence does not establish debilitating functional limitations due
to any physical impairment.” (R. 48.)
The Plaintiff has past relevant work as an assistant manager (skilled SVP6 light work),
sales clerk (semiskilled SVP3 light work), and home companion (semiskilled SVP3 light work).
The ALJ found that the Plaintiff was unable to perform her past relevant work. (R. 50.) Relying
on the VE’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.” (R. 51.) Thus, the ALJ found that the
Plaintiff was not disabled as defined in the Social Security Act as of her alleged onset date. (R.
52.)

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 308. A 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 erred by failing to include limitations in her RFC related
to all of her impairments, failing to appropriately develop the record, and improperly holding the
Plaintiff’s non-compliance with treatment regimens against her credibility. With regard to the
limitations in her RFC, the Plaintiff argues that the ALJ should have credited her testimony
regarding the difficulties she experiences with her hands.
The Court may not overturn the ALJ’s credibility determination unless it is “patently
wrong.” see Elder, 529 F.3d at 413–14. “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
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.
Furthermore, Social Security “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 bases for a negative credibility

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finding.” Schmidt v. Barnhart, 395 F.3d 737, 746–47 (7th Cir. 2005). “The ALJ should not
mechanically recite findings on each factor, but must give specific reasons for the weight given
to the individual’s statements.” Evans v. Astrue, No. 3:10-CV-432, 2012 WL 951489, at *11
(N.D. Ind. Mar. 20, 2012).
The primary reason the ALJ cited for discounting the Plaintiff’s subjective testimony was
that her testimony was not supported by the medical record. But, the Seventh Circuit, and this
District, have rejected this approach. See, e.g., Villano v. Astrue, 556, F.3d 558, 562 (7th Cir.
2009) (“[T]he ALJ may not discredit a claimant’s testimony about her pain and limitations solely
because there is no objective medical evidence supporting it.”); Myles v. Astrue, 585 F.3d 672,
677 (7th Cir. 2009) (same); Moore v. Colvin, 743 F.3d 1118, 1125 (7th Cir. 2014) (same);
Thomas v. Colvin, 534 F. App’x 546, 552 (7th Cir. 2013) (same); Boyd v. Barnhart, 175 F.
App’x 47, 50 (7th Cir. 2006) (reversing and remanding for insufficient credibility determination
where the Commissioner “defended the ALJ’s decision by relying on the objective medical
evidence, the testimony of the vocational expert, and a brief discussion of [the claimant’s] daily
living activities”); Salaiz, 202 F. Supp. 3d at 893–94 (“The ALJ erred when assessing the
Plaintiff’s credibility because she relied entirely on medical evidence . . . .”); Vercel v. Colvin,
No. 2:15-CV-71, 2016 WL 1178529, at *4 (N.D. Ind. Mar. 28, 2016) (Although the “ALJ is not
required to give full credit to every statement of pain made by the claimant . . . a claimant’s
statements regarding symptoms or the effect of symptoms on his ability to work ‘may not be
disregarded solely because they are not substantiated by objective evidence.’”) (quoting SSR 967p at *6).
In fact, “the whole point of the credibility determination is to determine whether the
claimant’s allegations are credible despite the fact that they are not substantiated by the objective

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medical records.” Stephens v. Colvin, No. 1:13-CV-66, 2014 WL 1047817, at *9 (N.D. Ind. Mar.
18, 2014) (emphasis in original). See Thomas, 534 F. App’x at 551 (The ALJ’s argument “that
[the claimant’s] alleged daily activities ‘cannot be objectively verified with any reasonable
degree of certainty’ [] ignores the fact that [the claimant’s] daughter (who forced [the claimant]
to move in with her so that she could provide care) confirmed the type and extent of [the
claimant’s] daily activities.”).
The Court acknowledges the Commissioner’s argument that a claim for disability
benefits cannot be supported by a claimant’s subjective complaints alone. 20 C.F.R.
§§ 404.1529(a), 416.929(a). However, this does not change the fact that a claimant’s subjective
testimony may not be discarded solely due to a lack of objective medical evidence. In the case of
a conflict, the ALJ must make a credibility determination. The ALJ may look for consistency
with the objective medical evidence, but she must also consider other factors. The only other
explanation the ALJ gave that bears upon the Plaintiff’s credibility is that she “never
demonstrated any obvious pain behaviors during the hearing” and “never got up from her seated
position during the hearing and seemed to sit relatively calmly throughout the hearing and
answered questions appropriately without hesitation.” There are multiple issues with this
statement. First, the ALJ appears to be criticizing the Plaintiff for being forthright during the
ALJ’s questioning, even illogically holding it against her credibility. Second, the ALJ does not
explain how the Plaintiff’s ability to sit through a hearing that lasted a little over an hour is
inconsistent with her testimony that she could sit for two hours. Finally, although the ALJ is
entitled to consider his personal observations of the claimant, “[a]n ALJ may not discredit a
claimant’s testimony simply because the claimant failed to ‘sit and squirm.’” Flores v.
Massanari, 19 F. App’x 393, 404 (7th Cir. 2001) (citing Powers v. Apfel, 207 F.3d 431, 436 (7th

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Cir. 2000)) (finding error where the ALJ “allowed [the plaintiff’s] appearance at the hearing to
sway his credibility assessment”). To be sure, the “‘sit and squirm’ test alone does not render a
credibility finding patently wrong.” Godsey v. Colvin, No. 1:14-CV-297, 2015 WL 9223712, at
*7 (N.D. Ind. Dec. 16, 2015) (citing Powers, 207 F.3d at 436.) The Court must consider
“whether the test was used properly in conjunction with other credibility evidence.” Barrett v.
Colvin, No. 4:12-CV-74, 2014 WL 936839, at *9 (N.D. Ind. Mar. 11, 2014). “Here, when the ‘sit
and squirm’ test is used in conjunction with so many other errors in interpreting the evidence, its
usefulness is highly questionable at best.” Id. The Court finds that the ALJ has failed to build an
accurate and logical bridge between the evidence and his conclusions.

CONCLUSION
Accordingly, the Court REVERSES and REMANDS this case. Because the Court is
remanding on this issue, it need not consider the reminder of the parties’ arguments.

SO ORDERED on May 4, 2018.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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