Kaczmarek v. Commissioner of Social Security

Filing 20

OPINION AND ORDER: The Court hereby GRANTS Plaintiff's Brief in Support of Reversing the Decision of the Commissioner of Social Security [DE 17], REVERSES the final decision of the Commissioner of Social Security, and REMANDS this matter for f urther proceedings consistent with this Opinion and Order. In light of the errors noted in the first ALJ decision on the instant claims that were not corrected in the second decision, the Court SUGGESTS that this matter be assigned to a different ALJ on remand. Signed by Magistrate Judge Paul R Cherry on 8/2/18. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
LAURA R. KACZMAREK,
Plaintiff,
v.
NANCY A. BERRYHILL,
Deputy Commissioner for Operations,
Social Security Administration,
Defendant.

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CAUSE NO.: 1:17-CV-356-PRC

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Laura R. Kaczmarek
on August 18, 2017, and a Social Security Opening Brief of Plaintiff [DE 14], filed by Plaintiff on
January 17, 2018. Plaintiff requests that the September 13, 2016 decision of the Administrative Law
Judge denying her claim for disability insurance benefits and supplemental security income be
reversed and remanded for an award of benefits or for further proceedings. On January 25, 2018, the
Deputy Commissioner filed a response, and Plaintiff filed a reply on March 28, 2018. For the
following reasons, the Court grants Plaintiff’s request for remand.
PROCEDURAL BACKGROUND
On June 13, 2011, Plaintiff filed applications for disability insurance benefits and
supplemental security income, alleging disability beginning July 14, 2008. The applications were
denied initially and on reconsideration. Administrative Law Judge William D. Pierson (“ALJ”) held
a hearing and, on May 14, 2013, Magistrate Judge Andrew P. Rodovich, presiding by consent of the
parties, granted Plaintiff’s request to remand the matter to the agency for further proceedings. On
remand, the Appeals Council remanded the matter to ALJ Pierson for a hearing and new decision.
The ALJ held a hearing on July 12, 2016. In attendance at the hearing were Plaintiff, Plaintiff’s

attorney, Plaintiff’s son, and an impartial vocational expert. On September 13, 2016, the ALJ issued
a written decision denying benefits, making the following findings:
1.

The claimant meets the insured status requirements of the Social Security Act
through December 31, 2013.

2.

The claimant has not engaged in substantial gainful activity since July 14,
2008, the alleged onset date.

3.

The claimant has the following severe impairments: osteoarthritis and
bursitis of the hips, sacroiliitis, chronic pain syndrome, myofascial pain
syndrome, disorders of the spine (including discogenic and degenerative
changes in the cervical, thoracic, and lumbar spine), bilateral shoulder
problems (including tendonitis, bursitis, rotator cuff tearing, and degenerative
changes), bilateral knee problems (including bursitis, degenerative changes,
chondromalacia, patallae alta, Osgood-Schlatter syndrome, and low-grade
injuries to some of the ligaments), and obesity.

4.

The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1.

5.

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b) except that she can only occasionally
bend and stoop in addition to what is required to sit. She can also
occasionally kneel, crouch, crawl, and use ramps and stairs (1-2 flights with
handrails). She cannot climb ladders, ropes, or scaffolds at all.

6.

The claimant is capable of performing her past relevant work as a fast food
worker.

7.

The claimant has not been under a disability, as defined in the Social Security
Act, from July 14, 2008, through the date of this decision.

(AR 662-73).
The Appeals Council denied Plaintiff’s request for review, leaving the ALJ’s decision the
final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. Plaintiff filed this civil
action pursuant to 42 U.S.C. §§ 405(g) and 1383(c) for review of the Agency’s decision.

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The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42
U.S.C. § 405(g).
STANDARD OF REVIEW
The Social Security Act authorizes judicial review of the final decision of the agency and
indicates that the Commissioner’s factual findings must be accepted as conclusive if supported by
substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ will reverse
only if the findings are not supported by substantial evidence or if the ALJ has applied an erroneous
legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Substantial evidence
consists of “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005) (quoting Gudgel v. Barnhart,
345 F.3d 467, 470 (7th Cir. 2003)).
A court reviews the entire administrative record but does not reconsider facts, re-weigh the
evidence, resolve conflicts in evidence, or substitute its judgment for that of the ALJ. See Boiles v.
Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000);
Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Thus, the question upon judicial review of an
ALJ’s finding that a claimant is not disabled within the meaning of the Social Security Act is not
whether the claimant is, in fact, disabled, but whether the ALJ “uses the correct legal standards and
the decision is supported by substantial evidence.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir.
2013) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010); Prochaska v.
Barnhart, 454 F.3d 731, 734-35 (7th Cir. 2006); Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir.

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2004)). “[I]f the Commissioner commits an error of law,” the Court may reverse the decision
“without regard to the volume of evidence in support of the factual findings.” White v. Apfel, 167
F.3d 369, 373 (7th Cir. 1999) (citing Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997)).
At a minimum, an ALJ must articulate his analysis of the evidence in order to allow the
reviewing court to trace the path of his reasoning and to be assured that the ALJ considered the
important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Diaz v. Chater, 55
F.3d 300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). An ALJ must
“‘build an accurate and logical bridge from the evidence to [the] conclusion’ so that [a reviewing
court] may assess the validity of the agency’s final decision and afford [a claimant] meaningful
review.” Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007) (quoting Scott, 297 F.3d at 595)); see
also O’Connor-Spinner, 627 F.3d at 618 (“An ALJ need not specifically address every piece of
evidence, but must provide a ‘logical bridge’ between the evidence and his conclusions.”); Zurawski
v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (“[T]he ALJ’s analysis must provide some glimpse into
the reasoning behind [the] decision to deny benefits.”).
DISABILITY STANDARD
To be eligible for disability benefits, a claimant must establish that she suffers from a
“disability” as defined by the Social Security Act and regulations. The Act defines “disability” as
an inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). To be found disabled, the claimant’s impairment must not only prevent her from
doing her previous work, but considering her age, education, and work experience, it must also

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prevent her from engaging in any other type of substantial gainful activity that exists in significant
numbers in the economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. §§ 404.1520(e)-(f),
416.920(e)-(f).
When a claimant alleges a disability, Social Security regulations provide a five-step inquiry
to evaluate whether the claimant is entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The steps are: (1) Is the claimant engaged in substantial gainful activity? If yes, the claimant is not
disabled, and the claim is denied; if no, the inquiry proceeds to step two; (2) Does the claimant have
an impairment or combination of impairments that are severe? If no, the claimant is not disabled,
and the claim is denied; if yes, the inquiry proceeds to step three; (3) Do(es) the impairment(s) meet
or equal a listed impairment in the appendix to the regulations? If yes, the claimant is automatically
considered disabled; if no, then the inquiry proceeds to step four; (4) Can the claimant do the
claimant’s past relevant work? If yes, the claimant is not disabled, and the claim is denied; if no,
then the inquiry proceeds to step five; (5) Can the claimant perform other work given the claimant’s
residual functional capacity (RFC), age, education, and experience? If yes, then the claimant is not
disabled, and the claim is denied; if no, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v),
416.920(a)(4)(i)-(v); see also Scheck v. Barnhart, 357 F.3d 697, 699-700 (7th Cir. 2004).
At steps four and five, the ALJ must consider an assessment of the claimant’s residual
functional capacity (RFC). The RFC “is an administrative assessment of what work-related activities
an individual can perform despite [her] limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th
Cir. 2001). The RFC should be based on evidence in the record. Craft v. Astrue, 539 F.3d 668, 676
(7th Cir. 2008) (citing 20 C.F.R. § 404.1545(a)(3)). The claimant bears the burden of proving steps

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one through four, whereas the burden at step five is on the ALJ. Zurawski, 245 F.3d at 885-86; see
also Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
ANALYSIS
Plaintiff seeks remand, arguing that the ALJ erred in assessing Plaintiff’s subjective
symptoms and in determining Plaintiff’s RFC. Because of multiple errors in the ALJ’s evaluation
of Plaintiff’s subjective statements, the case will be remanded.
In making a disability determination, the Social Security Administration will consider a
claimant’s statements about her symptoms, such as pain, and how the symptoms affect her daily life
and ability to work. See 20 C.F.R. §§ 404.1529(a), 416.929(a). Subjective allegations of disabling
symptoms alone cannot support a finding of disability. Id. The Administration’s decisionmaker must
weigh the claimant’s subjective complaints, the relevant objective medical evidence, and any other
evidence of the following factors:
(1)
(2)
(3)
(4)
(5)
(6)
(7)

The individual’s daily activities;
Location, duration, frequency, and intensity of pain or other symptoms;
Precipitating and aggravating factors;
Type, dosage, effectiveness, and side effects of any medication;
Treatment, other than medication, for relief of pain or other symptoms;
Other measures taken to relieve pain or other symptoms;
Other factors concerning functional limitations due to pain or other symptoms.

See id. §§ 404.1529(c)(3), 416.929(c)(3). “[S]ubjective symptom evaluation is not an examination
of an individual’s character.” SSR 16-3p, 2017 WL 5180304, *2 (Oct. 25, 2017). “Adjudicators must
limit their evaluation to the individual’s statements about his or her symptoms and the evidence in
the record that is relevant to the individual’s impairments.” Id. at *11.
The ALJ found that Plaintiff’s medically determinable impairments could reasonably be
expected to cause some of her alleged symptoms, but also found that the statements made by

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Plaintiff and her children regarding the intensity, persistence, and limiting effects of her symptoms
were not supported and presented five reasons for so finding: (1) in addition to the instant
applications, Plaintiff filed for disability insurance benefits and supplemental security income in
April 2010 and September 2015, and these claims were denied; (2) Plaintiff’s worker’s
compensation application was denied; (3) Plaintiff was cleared for kitchen duty when she was
incarcerated in 2012; (4) Plaintiff could engage in “at least a somewhat full range of activities”; and
(5) the statements are not supported by the medical evidence. (AR 667). Because of errors in the
ALJ’s reasoning, there is no accurate and logical bridge from the evidence to the conclusion, and
the case must be remanded. Further, because the ALJ repeats his prior errors regarding Plaintiff’s
activities, the Court will suggest that this case be assigned to a different ALJ on remand. See Travis
v. Sullivan, 985 F.2d 919, 924-25 (7th Cir. 1993).
First, the ALJ provides no clear analysis of Plaintiff’s other claims filed with the Social
Security Administration or explanation of how this is relevant to Plaintiff’s impairments. The
Deputy Commissioner asserts, without explanation that these claims were “properly considered,”
but the Court sees no logical bridge from these other claims to Plaintiff’s impairments and the
veracity of her statements of her subjective symptoms. Because the ALJ must connect the evidence
to his conclusion, there is error here.
Second, and similarly to the first reason, denial of a worker’s compensation claim appears
to say little about Plaintiff’s impairments. The determination of disability or nondisability by other
governmental agencies or nongovernmental entities is not binding on the Social Security
Administration. 20 C.F.R. §§ 404.1504, 416.904.

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Further, the ALJ identifies no evidence indicating that the worker’s compensation claim was
denied because Plaintiff was found not to be disabled. The ALJ cites, generally, Exhibit 5F in
support. This exhibit is 35 pages of office treatment records. Plaintiff, not the ALJ identifies a
passage in this exhibit that discusses worker’s compensation. This passage indicates that Plaintiff
“would like to be able to claim this [injury] as work-related because she clearly got worse when she
changed to this new job.” (AR 374). Though not clear, this record suggests that the claim was denied
because the injury was not work-related and not because there was no injury. The ALJ has not
logically connected the denial of worker’s compensation to the determination that the intensity,
persistence, and limiting effects of Plaintiff’s symptoms are not as severe as alleged.
Third, the ALJ explains his decision by noting that Plaintiff was “cleared for kitchen duty”
when she was incarcerated in 2012. As noted above, this determination is not binding on the Social
Security Administration. Additionally, the ALJ once again cites an exhibit, the 21-page Indiana
Department of Corrections Intake Form at Exhibit 22F, without a more specific citation. Though the
form indicates that she was “cleared for kitchen duty,” there is no discussion of what kitchen duty
entails. (See AR 621). For example, the number of hours and type of work performed in a kitchen
duty shift has not been identified for the Court. Further, it is unclear whether “cleared for kitchen
duty” is a statement that Plaintiff is physically capable of doing the work required on kitchen duty
instead of, for example, a statement that it is safe for her to be around food being prepared for human
consumption. Regardless, Plaintiff testified that she was not given any duties while incarcerated and
that “they specifically put me in a dorm where you do not have a job because of my disabilities and
my age -- limitations.” (AR 53). Once again, the necessary logical connection is missing between
this evidence and the ALJ’s conclusion.

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Fourth, the ALJ found that Plaintiff could perform “at least a somewhat full range of
activities.” (AR 667). In his earlier decision, the ALJ similarly found that Plaintiff could “engage
in a rather full range of activities.” (AR 21). As Judge Rodovich noted in his earlier opinion, the ALJ
“failed to note that her activities were accompanied by pain or that some activities caused her hands
to go numb.” (AR 751). The ALJ noted that Plaintiff could
care for her personal needs independently (albeit allegedly not on a daily basis), do
some light housework (allegedly with breaks), fold some laundry, watch her
grandchildren, heat meals, empty the litter box, unload the dishwasher, do some
shopping, watch television, pay bills, and pick up her children/grandchildren from
school at times. In addition, she worked part-time as a stocker for at least a short
period of time after the alleged onset date.
(AR 667 (internal citation omitted)). This description of limited activity leads the Court to question
the ALJ’s classification of these activities as comprising a “somewhat full range.” Regardless, the
ALJ fails to indicate how any of the activities noted above make any of Plaintiff’s symptoms less
intense, persistent, or limiting than alleged. The Seventh Circuit Court of Appeals has often warned
against equating the performance of daily activities with the ability to perform full-time, competitive
work. Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012); Punzio v. Astrue, 630 F.3d 704, 712
(7th Cir. 2011); Moss v. Astrue, 555 F.3d 556, 562 (7th Cir. 2009); Zurawski, 245 F.3d at 887).
Here, Plaintiff’s ability to care for her personal needs is alleged to be a less than daily activity. There
are also limits on her ability to perform other tasks, such as needing 20-30 minute breaks after
folding laundry for 15-20 minutes, (AR 665), and performing chores and errands that do not require
much movement, (AR 282). As previously noted by Judge Rodovich, Plaintiff indicated that she
tired easily and had pain while working as a stocker. (AR 752, citing AR 86-87). The ALJ has
summarized Plaintiff’s activities and concluded that they do not support her allegation of inability

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to perform full-time work, but he fails to provide the necessary links connecting the one to the other.
This is error.
The combined errors in the above four reasons provided by the ALJ are enough for the Court
to order remand, as the Court cannot say that the decision is supported by substantial evidence in
light of the errors.
The ALJ provides significantly more analysis regarding his fifth reason: that Plaintiff’s
allegations are not supported by the medical evidence. However, a few matters contained in this
analysis are worthy of note. First, the ALJ acknowledged that Plaintiff alleged that her hands hurt,
(AR 665), but did not address Plaintiff’s EMG results, which Dr. Shah interpreted as suggestive of
carpal tunnel syndrome, (AR 1316).
Next, one of the ALJ’s reasons for determining an inconsistency between the absence of
certain findings and disabling pain contains a logical fallacy. The ALJ writes:
SSR 16-3p states that reduced joint motion, spasm, motor disruption or sensory
deficit can illustrate findings consistent with statements about symptoms and
functional effects and may be associated with pain. Thus, it is reasonable to argue
that, conversely, this language also establishes that the absence of motor or sensory
disruption or reduced joint motion illustrate findings inconsistent with statements
regarding symptoms, functional effects or conditions with disabling pain.
(AR 669). This is “the fallacy of the inverse (otherwise known as denying the antecedent): the
incorrect assumption that if P implies Q, then not-P implies not-Q.” N.L.R.B. v. Noel Canning, 134
S. Ct. 2550, 2603 (2014) (Scalia, J., concurring in the judgment). An illustration of this fallacy is
as follows. Start with the premise that, if there is fire, then there must be oxygen. The fallacy comes
in inferring that, because there is no fire, then there must not be oxygen.
Further, even if the ALJ’s inferrence were not flawed, the premise is not true. Plaintiff does
not have an absence of reduced joint motion and spasms. As the ALJ noted, Plaintiff had medical
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findings of decreased range of motion in her neck and shoulders and muscle spasms in her neck and
back. (AR 667). The ALJ noted that these findings are specifically indicated in SSR 16-3p as
findings that may be associated with pain. (AR 669). Thus, the ALJ’s fifth reason also contains
errors.
All of the reasons provided for not accepting the alleged intensity, persistence, and limiting
effects of Plaintiff’s subjective symptoms are flawed. The ALJ’s determination on this matter cannot
be affirmed, and the case must be remanded. Because the determination of subjective symptoms
affects the residual functional capacity determination, a full review of the residual functional
capacity is not warranted here. On remand, however, the ALJ is directed to consider the evidence
regarding carpal tunnel syndrome and possible limitations that may be associated with it.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS Plaintiff’s Brief in Support of Reversing
the Decision of the Commissioner of Social Security [DE 17], REVERSES the final decision of the
Commissioner of Social Security, and REMANDS this matter for further proceedings consistent
with this Opinion and Order. In light of the errors noted in the first ALJ decision on the instant
claims that were not corrected in the second decision, the Court SUGGESTS that this matter be
assigned to a different ALJ on remand.
So ORDERED this 2nd day of August, 2018.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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