Vogelgesang v. Commissioner of Social Security

Filing 27

AMENDED OPINION AND ORDER: The Court REVERSES and REMANDS this case. Because the Court is remanding on these issues, it need not consider the remainder of the parties' arguments. Signed by Chief Judge Theresa L Springmann on 5/14/2018. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
AMANDA LYNN VOGELGESANG,
Plaintiff,
v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF THE
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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CAUSE NO.: 1:17-CV-146-TLS

OPINION AND ORDER
Plaintiff Amanda Lynn Vogelgesang seeks review of the final decision of the
Commissioner of the Social Security Administration (Commissioner) denying her application for
disability and disability insurance benefits. The Plaintiff argues that the Commissioner
wrongfully denied her Social Security benefits and erred by failing to build a logical bridge
between all of the Plaintiff’s impairments and her residual functional capacity, improperly
holding the Plaintiff’s failure to comply with treatment plans or otherwise seek consistent
treatment against her credibility, failing to give the appropriate weight to a state agency
psychological examination, and by overemphasizing the Plaintiff’s daily activities.

BACKGROUND
On October 5, 2015, the Plaintiff filed a Title II application for disability and disability
insurance benefits, alleging disability beginning on December 1, 2014. (R. 19.) Her claims were
denied initially, and upon reconsideration. (Id.) On August 8, 2016, the Plaintiff appeared with
counsel and testified at a hearing before an administrative law judge (ALJ). (Id.) Charles McBee,

an impartial vocational expert (VE) also appeared. (Id.) On February 9, 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 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). 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).
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 since her alleged onset date, December 1, 2014. (R. 21.)
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). In this case, the ALJ determined that
the Plaintiff had multiple severe impairments, including a history of stage IV thyroid cancer and
myxoma tumor in the left thigh. (Id.) 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

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work. (Id.) The ALJ also found that the Plaintiff had multiple non-severe impairments, including
headaches, a low vitamin D level, and mental impairments, including anxiety, depression, and
attention deficit hyperactivity disorder, but that “the claimant is, at most, only mildly limited by
her mental impairments in her ability to perform activities of daily living, maintain social
functioning, and sustain concentration, persistence, or pace.” (R. 21–23.)
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 she can still do physically,
despite her limitations—to determine whether she 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).
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 the full range of sedentary work as
defined in 20 C.F.R. 404.1567(a).” (R. 24.) The ALJ imposed no other limitations on the
Plaintiff’s RFC.
After analyzing the record, the ALJ concluded that the Plaintiff was not disabled as of her
alleged onset date. (R. 19–29.) 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. 25.) But,

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the ALJ found that the Plaintiff’s testimony and prior statements regarding the intensity,
persistence, and limiting effects of these symptoms were “not entirely consistent with the
medical evidence and other evidence in the record.” (Id.) The Plaintiff testified that she would
miss at least 9 days of work per month, that she suffers from left leg pain at a level 8, that she has
spasms in her legs to or 3 nights per week, that she is able to lift only a case of water, stand for
15–20 minutes at a time, sit for 20 minutes at a time, and walk for 20–25 minutes at a time. (R.
24.) She also testified that she felt sick in some way on a daily basis and that she had difficulty
squatting, kneeling, climbing stairs, completing tasks, and using her hands. (R. 25.) The
Plaintiff’s mother stated that the Plaintiff sometimes needed to lie down, did not complete tasks,
experienced cramping in her left leg, and had difficulty squatting, kneeling, and walking more
than a quarter of a mile. (Id.)
The ALJ also cited other parts of the record that did not support the Plaintiff’s testimony,
including that the Plaintiff continued to work after she was treated for her severe impairments,
suggesting that she was not as limited as alleged; and that she “is able to engage in a rather full
range of activities,” noting that she is the primary caregiver for her two children, has friends, can
drive, takes her children to and from school, helps her children with their homework, makes
dinner sometimes, does laundry, does some shopping and housework, helps care for the family
pets, visits her grandparents, cares for her personal needs, goes out alone, pays bills, and counts
change. (Id.) Turning to the objective medical evidence, the ALJ noted that Plaintiff had not
required surgery on her left leg since her alleged onset date, nor did she take any medication for
her left leg issues on a regular or consistent basis and only once sought emergency room
treatment since her alleged onset date. (Id.) The ALJ also found that the Plaintiff’s physical
examination findings were “largely within normal limits.” (R. 26.) Thus, the ALJ concluded that

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“[t]he documentation of such findings, or the absence of such limitations of function within the
objective medical findings, undermine, fail to support, or are inconsistent with allegations for
greater limitations of function lasting twelve months in duration,” which “undermine[s] the
weight accorded to testimony and allegations.” (Id.) The ALJ also found that the Plaintiff’s lack
of ongoing mental health treatment through a psychiatrist, counselor, or psychologist tended to
“undermine allegations for a severe mental impairment[] imposing significant limitation of
function for twelve months in duration and despite treatment.” (Id.) The ALJ stated that “there is
no medical opinion of record to fully corroborate the allegations made by the claimant and her
mother or to support a more restrictive assessment of the claimant’s physical residual functional
capacity than acknowledged by the undersigned.” (R. 27.) Ultimately, the ALJ concluded that
“[t]he claimant failed her burden of establishing a logical bridge between her allegations, the
record and greater limitations of function lasting twelve months in duration.” (Id.)
The Plaintiff has past relevant work as a cashier, which is unskilled, light work. (Id.) The
ALJ found that the Plaintiff was unable to perform her past relevant work. (Id.) 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. 28.) Thus, the ALJ found that the Plaintiff was not
disabled as defined in the Social Security Act as of her alleged onset date. (R. 29.)

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

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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
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

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affirmed even if “reasonable minds could differ concerning whether [the claimant] is disabled.”
Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).

ANALYSIS
The Plaintiff argues that the ALJ erred by failing to build a logical bridge between all of
the Plaintiff’s impairments and her residual functional capacity, improperly holding the
Plaintiff’s failure to comply with treatment plans or otherwise seek consistent treatment against
her credibility, failing to give the appropriate weight to a state agency psychological
examination, and by overemphasizing the Plaintiff’s daily activities. Most of the Plaintiff’s
arguments attack the ALJ’s credibility determination.

A.

Credibility Determination
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

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and must be specific enough to enable the claimant and a reviewing body to understand the
reasoning.” Craft, 539 F.3d at 678.
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
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).
In discounting the Plaintiff’s testimony, the ALJ noted that the Plaintiff continued to
work after being treated for her two severe impairments, that the Plaintiff engages in “a rather
full range of activities,” and that the Plaintiff’s testimony is not corroborated by the medical
record.

1.

Work History
The ALJ found that the fact that the Plaintiff worked after she was treated for her two

severe impairments “suggest[ed] that she was not as limited as she and her mother alleged,”
despite the fact that none of the referenced work qualified as SGA. (R. 25.) “There is no inherent
inconsistency in being both employed and disabled.” Ghiselli v. Colvin, 837 F.3d 771, 778 (7th
Cir. 2016). “An ALJ is not statutorily required to consider a claimant’s work history, but a
claimant with a good work record is entitled to substantial credibility when claiming an inability
to work because of a disability.” Stark v. Colvin, 813 F.3d 684, 689 (7th Cir. 2016) (internal

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quotation omitted). “The fact that someone is employed is not proof positive that he is not
disabled, for he may be desperate and exerting himself beyond his capacity, or his employer may
be lax or altruistic.” Wilder v. Chater, 64 F.3d 335, 338 (7th Cir. 1995); see also Hawkins v.
First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 918 (7th Cir. 2003) (finding
argument “would be correct were there a logical incompatibility between working full time and
being disabled from working full time”); Ghiselli, 837 F.3d at 778 (“Persisting in looking for
employment even while claiming to suffer from a painful disability might simply indicate a
strong work ethic or overly-optimistic outlook rather than an exaggerated condition.”). “A
positive work history makes a claimant more credible, and a desire to resume work similarly
makes a claimant more credible, not less[.]” Cullinan v. Berryhill, 878 F.3d 598, 604 (7th Cir.
2017) (internal citations omitted). Thus, the Court finds that the ALJ inappropriately held the
Plaintiff’s continued employment against her instead of weighing it in her favor. Although the
ALJ may ultimately come to the same conclusion regarding the Plaintiff’s credibility, on remand,
the ALJ should weigh the Plaintiff’s work history positively rather than as proof that she is not
disabled.

2.

Daily Living Activities
The ALJ’s credibility determination also rested on the Plaintiff’s daily living activities.

The ALJ noted that “the claimant is able to engage in a rather full range of activities as she is the
primary caregiver for her 2 children (ages 9 and 13), has friends, and is able to drive, take her
children to and from school, help her children with their homework, make dinner sometimes, do
laundry, do some shopping and housework, help care for the family pets, visit her grandparents,
care for her personal needs . . . go out alone, pay bills, and count change[.]” (R. 25.) The Plaintiff

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argues that the ALJ placed undue weight on her ability to conduct daily living activities without
considering the assistance she required to perform them.
The Seventh Circuit has emphasized that there are “critical differences between activities
of daily living and activities in a full-time job” including flexibility in scheduling, possible help
from family members, and lack of minimum performance standards; and “[t]he failure to
recognize these differences is a recurrent . . . feature of opinions by administrative law judges in
social security disability cases.” Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012).
In this case, the ALJ failed to consider the modifications and assistance that the Plaintiff
required to complete the referenced daily activities. For example, the Plaintiff testified that at
least two days out of the week, her mother cooks dinner or does the laundry. (R. 53.) She
testified that she “ha[s] to live with [her] mother at this point” because of her problems with
confusion and memory. (R. 62–63.) The ALJ did not even acknowledge the Plaintiff’s testimony
on this issue and therefore “ignored [the Plaintiff’s] qualifications as to how [she] carried out
those activities.” Craft, 539 F.3d at 660 (emphasis in original). Courts have repeatedly found
fault with decisions where the ALJ noted that the claimant could perform daily activities but
failed to examine the physical or mental consequences of performing those activities and the
claimant’s need for assistance or modifications. See, e.g., Sneed v. Berryhill, No. 2:16-CV-195,
2017 WL 4325303, at *3 (N.D. Ind. Sept. 29, 2017) (“If the ALJ wishes to hold Plaintiff’s daily
activities against her, he must . . . discredit Plaintiff’s claims of how much her children help with
the activities.”); Herrold v. Colvin, No. 2:13-CV-360, 2015 WL 1243293, at *6 (N.D. Ind. Mar.
17, 2015) (“[T]he Seventh Circuit has repeatedly criticized credibility determinations that are
based on a plaintiff’s ability to take care of his personal hygiene, children, or household chores.”)
(citing Moss v. Astrue, 555 F.3d 556, 562 (7th Cir. 2009)); see also Rogers v. Comm’r of Soc.

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Sec., 486 F.3d 234, 248–249 (6th Cir. 2007) (finding fault where the ALJ “fail[ed] to examine
the physical effects coextensive with [the] performance” of daily activities and “failed to note or
comment upon the fact that [the claimant] receive[d] assistance of many everyday activities and
even personal care from her children”). On remand, when considering the Plaintiff’s daily living
activities, the ALJ should ensure that he takes into account any assistance or modifications the
Plaintiff requires to perform such daily living activities.

3.

Objective Medical Evidence
The remaining 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); see also 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

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to work ‘may not be disregarded solely because they are not substantiated by objective
evidence.’”) (quoting SSR 96-7p 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
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.”).
Thus, the Court cannot say that the ALJ built a logical bridge regarding the Plaintiff’s
credibility and is unable to meaningfully review the ALJ’s analysis.

B.

RFC Analysis
Although the Court is unable to meaningfully review the ALJ’s decision due to the errors

in the credibility determination, the ALJ’s conclusions regarding the Plaintiff’s RFC are
problematic for another reason: The ALJ appears to have used the wrong standard at step four of
the analysis.
In the step four analysis, the ALJ stated that the lack of objective medical evidence
“tend[ed] to undermine allegations for a severe mental impairment[] imposing significant
limitations of function for twelve months in duration and despite treatment,” and that “[t]he
claimant failed her burden of establishing a logical bridge between her allegations, the record
and greater limitations of function lasting twelve months in duration.” (R. 26–27 (emphasis

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added).) However, whether an impairment imposes a significant limitation of function for twelve
months is not the question at this step; that is the question at step two. At step four, “the ALJ
need[s] to consider the aggregate effect of this entire constellation of ailments—including those
impairments that in isolation are not severe.” Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th
Cir. 2003) (emphasis in original). “The fact that [an impairment] standing alone is not disabling
is not grounds for the ALJ to ignore [it] entirely—it is [its] impact in combination with [the
claimant’s] other impairments that may be critical to his claim.” Yurt v. Colvin, 758 F.3d 850,
860 (7th Cir. 2014). That is, “a competent evaluation of [a claimant’s] application depends on the
total effect of all his medical problems.” Golembiewski, 322 F.3d at 918; see also Williams v.
Colvin, 757 F.3d 610, 613 (7th Cir. 2014) (“As we—and other circuits—have emphasized
repeatedly . . . the combined effects of the applicant’s impairments must be considered, including
impairments that considered one by one are not disabling.”).
“A failure to fully consider the impact of non-severe impairments requires reversal.”
Denton v. Astrue, 596 F.3d 419, 423 (7th Cir. 2010) (citation omitted); see also Parker v. Astrue,
597 F.3d 920, 923 (7th Cir. 2010) (finding that “failure to consider the cumulative effect of
impairments not totally disabling in themselves was an elementary error”); Terry, 580 F.3d at
477 (noting that even where impairments would “not on their own be disabling, that would only
justify discounting their severity, not ignoring them altogether”); Verlee v. Astrue, No. 1:12-CV45, 2013 WL 1760810, at *5 (N.D. Ind. Apr. 24, 2013) (remanding where “ALJ failed to discuss,
and effectively ignored, the Plaintiff’s” non-severe impairments when determining the Plaintiff’s
RFC).
The ALJ’s opinion does not indicate full consideration of the aggregate effect of the
Plaintiff’s impairments, both severe and non-severe. In fact, by focusing on whether the

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Plaintiff’s impairments imposed significant limitations lasting for twelve months, the ALJ’s
opinion demonstrates a fundamental misunderstanding of the analysis that is required at step
four. Therefore, on remand, the ALJ should also ensure that the aggregate of the Plaintiff’s
impairments, both severe and non-severe, are fully considered when determining the Plaintiff’s
RFC.

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

SO ORDERED on May 14, 2018.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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