Laymon v. Commissioner of Social Security

Filing 24

OPINION AND ORDER The Court REVERSES and REMANDS this case. Because the Court is remanding on this issue, it need not consider the remainder of the parties arguments. ***Civil Case Terminated. Signed by Chief Judge Theresa L Springmann on 8/28/18. (kjp)

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

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CAUSE NO.: 1:17-CV-457-TLS

OPINION AND ORDER
Plaintiff Scott A. Laymon seeks review of the final decision of the Commissioner of the
Social Security Administration (Commissioner) denying his application for disability and
disability insurance benefits as well as supplemental security income. The Plaintiff argues that
the Commissioner wrongfully denied him Social Security benefits and erred by failing to include
limitations in his residual functional capacity related to all of his impairments and failing to
support the step five findings with substantial evidence.

BACKGROUND
On May 29, 2014, 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 March 25, 2013. (R. 36.) His claims were denied initially and upon
reconsideration. (Id.) On July 20, 2016, the Plaintiff appeared with counsel and testified at a
hearing before an administrative law judge (ALJ). (Id.) Sandra Steele, an impartial vocational
expert (VE) also appeared. (Id.) On October 17, 2017, the ALJ denied the Plaintiff’s

applications. (R. 44.) On September 5, 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 November 3, 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 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), 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 his alleged onset date, March 25, 2013. (R. 38.)
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), 416.920(c). In this case, the ALJ
determined that the Plaintiff was severely impaired by diabetes mellitus with neuropathy in the
bilateral upper and lower extremities. (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 work. (Id.) The ALJ also found that the Plaintiff had multiple non-severe conditions,

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including hypertension, hyperlipidemia, bilateral retinopathy, carpal tunnel syndrome, groin
pull/strain, oral thrush, dizziness, and ocular migraines. (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 he can still do physically, despite his limitations—to determine whether he 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 he had the RFC to perform light work, as defined in 20 C.F.R.
404.1567(b) and 416.967(b), except:
[H]e is not able to climb ladders, ropes, or scaffolds at all and he can only
occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. He
must also avoid all exposure to unprotected heights, slippery or uneven surfaces,
and dangerous moving machinery in the workplace and he is able to handle, finger,
and feel using his upper extremities on a frequent basis.
(R. 40–41.)
After analyzing the record, the ALJ concluded that the Plaintiff was not disabled as of his
alleged onset date. (R. 36–44.) The ALJ evaluated the objective medical evidence and the
Plaintiff’s subjective complaints and found that the Plaintiff’s medically determinable

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impairments could reasonably be expected to cause the alleged symptoms. (R. 41.) 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 consistent with the medical evidence and
other evidence in the record.” (R. 42.) The Plaintiff testified that his feet are numb, he has pain in
his ankles and hands, he cannot open a pill box and generally has difficulty gripping objects, he
need help checking his blood sugar levels three out of five times a day, he takes three naps a day,
he must urinate every 30–60 minutes, he uses a cane without which he cannot stand or walk even
for short period of time, he can walk only about 80 feet with a cane, he can sit for only 60
minutes at a time, he must elevate his legs, he can lift a gallon of milk, he has trouble with
buttons, and he has difficulty climbing stairs. (R. 41.)
Turning to the evidence of record, the ALJ noted that the Plaintiff had a strong work
history and worked for nearly two years despite his diabetes mellitus, and that he only stopped
working due to an unrelated, non-severe injury. (R. 42.) The Plaintiff also received
unemployment compensation payments through the third quarter of 2013, which overlaps the
alleged period of disability by a few months. (Id.) The ALJ also noted that the Plaintiff has been
able to maintain his marriage, get along with his mother, drive, check his blood sugar levels at
least twice a day, exercise, and that there is no evidence of record that the Plaintiff cannot care
for his personal needs independently. (Id.) Looking to the objective medical evidence, the ALJ
found that the Plaintiff’s physical examination findings were largely within normal limits, that
there was no evidence of muscle atrophy or significant deficits in muscle strength, grip strength,
fine finger manipulative ability, or reflexes. (Id.) Further, the ALJ found that there was no
evidence of record that a cane is medically necessary or that the Plaintiff must urinate as
frequently as alleged. (Id.) The ALJ also noted that the Plaintiff had not sought emergency care

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or been hospitalized on an inpatient basis for diabetes mellitus or related complications since
February 2013. (Id.)
The Plaintiff has past relevant work as a saw operator, floor maintenance worker, tire/oil
auto servicer, order filler/stores worker, and industrial truck operator, all of which required more
than light exertion. (R. 43.) The ALJ therefore found that the Plaintiff was unable to perform his
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.” (Id.) Thus,
the ALJ found that the Plaintiff was not disabled as defined in the Social Security Act as of his
alleged onset date. (R. 44.)

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
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Henderson v. Apfel, 179 F.3d 507, 512
(7th Cir. 1999).

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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).

ANALYSIS
The Plaintiff argues that the ALJ erred by failing to include limitations in his RFC related
to all of his impairments and failed to support the step five findings with substantial evidence,
basing it on VE testimony that lacked foundation as to the number of available jobs that the

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Plaintiff could perform. The Commissioner responds that the ALJ appropriately weighed the
evidence of record, including the Plaintiff’s credibility, in coming to her conclusions regarding
the Plaintiff’s RFC and that the VE provided adequate supported for her testimony.
The flaws in the ALJ’s credibility determination prevent the Court from meaningfully
reviewing the RFC analysis and require remand. The Court may not overturn the ALJ’s
credibility determination unless it is “patently wrong.” See Elder, 529 F.3d at 413–14.
“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
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).

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In this case, the ALJ did not give sufficient reasons for the weight given to the Plaintiff’s
statements, and the limited reasons that are cited in the opinion are legally flawed.

A.

Work History
“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 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).
In this case, “[t]he ALJ relies upon the faulty premise that if impairments and/or pain
were present for years and years and it did not keep Plaintiff from working then, it would not
keep him from working now,” Springer v. Colvin, No. 1:13-CV-185, 2014 WL 3075342, at *7
(N.D. Ind. July 2, 2014). The fact that the Plaintiff continued to work despite his diabetes

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mellitus seems to have weighed against the Plaintiff in the ALJ’s determination. (See R. 42.) But,
“[a] disabled person should not be punished for heroic efforts to work . . . .” Hawkins, 326 F.3d
at 918; see also Luttrell v. Berryhill, No. 1:17-cv-2192, 2018 WL 558541, at *4 (S.D. Ind. Jan.
25, 2018 (A plaintiff “should not [be] discredited for attempting to work despite her physical
limitations.”). The ALJ emphasized that the reason that the Plaintiff stopped working was due to
a groin injury rather than the diabetes, which had not prevented him from working for the prior
two years. (R. 42.) However, the ALJ appears to have ignored, without explanation, the
Plaintiff’s testimony that it was not the diabetes itself that interfered with his employment but
rather the increasing neuropathy in his hands. (R. 73–74.) Thus, the Court finds that the ALJ
inappropriately held the Plaintiff’s continued employment against him instead of weighing it in
his 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 he is not disabled.

B.

Daily Living Activities
An individual’s daily activities are among the factors that an ALJ must consider in

making a credibility determination. See Craft, 539 F.3d at 660; Similia v. Astrue, 573 F.3d 503,
517 (7th Cir. 2009). However, 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); see also Herrold v. Colvin, No. 2:13-CV-360, 2015 WL 1243293, at *6

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(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 as these alone are not sound bases for a credibility determination.”)
(citing Moss v. Astrue, 555 F.3d 556, 562 (7th Cir. 2009)).
In this case, the ALJ failed to articulate why the Plaintiff’s daily living activities were
incompatible with his subjective testimony or how his daily living activities demonstrated that he
could hold a full-time job. See Pinder v. Astrue, No. 3:09-CV-363, 2010 WL 2243248, at *5
(N.D. Ind. June 1, 2010) (“Although objective medical evidence and daily activities are
appropriate factors to consider, the ALJ failed to articulate how these factors supported or
contradicted any particular claims made by the Plaintiff.”). For example, the ALJ cited the fact
that the Plaintiff was able to drive (R. 42), but the ALJ did not explain how driving is
incompatible with the Plaintiff’s assertions regarding the limiting effects of his impairments.
Moreover, the ALJ failed to consider the modifications and help that the Plaintiff
required in order to complete the referenced daily activities. 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 or 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)); Blow v. Astrue, No. 1:11-CV-293,

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2012 WL 3233621, at *9 (N.D. Ind. Aug. 6, 2012) (finding improper reliance on daily activities
when others performed almost all of the household chores and any activities the claimant could
perform were at a slower pace with frequent breaks); Rogers v. Commissioner of Soc. 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”).
The ALJ reasoned that the Plaintiff was not as limited as alleged because he could test his
own blood sugar levels twice a day (R. 42.) However, the ALJ ignored that the Plaintiff testified
that he needed to test his blood sugar levels five times a day, and the remaining three times, his
mother, wife, or oldest daughter had to help him because of his grasping and gripping
impairments. (R. 60, 74.) The ALJ stated that there was no evidence that the Plaintiff could not
take care of his personal needs. (R. 42.) But, the Plaintiff required help opening prescription
bottles and injecting insulin, which he needed to do five times a day. (R. 60, 74.) The ALJ also
appears to have ignored the Plaintiff’s testimony about his ability to walk only short distances.
(R. 77–78), that he can retrieve a gallon of milk from the fridge only by hooking it with his arm
like a football and cannot pour himself a glass of milk (R. 79), that buttoning causes him pain (R.
81), that he has to lean on a rail with his arm and “slide up” in order to climb stairs (Id.), and that
his medication required him to lay down for an hour three times a day (R. 75). While the ALJ is
by no means required to address every piece of evidence in the record, the ALJ’s cursory
statement that “there is no evidence in the record that he is unable to care for his personal needs
independently” is clearly contradicted by the Plaintiff’s testimony. The ALJ did not explain how
she concluded that the Plaintiff could conduct these activities on his own and apparently

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“ignored [the Plaintiff’s] qualifications as to how he carried out those activities” to which he
testified. Craft, 539 F.3d at 660 (emphasis in original); see also Schmidt, 395 F.3d at 746–47 (an
ALJ cannot merely ignore a Plaintiff’s testimony without giving sufficient reasons for
discounting it).

C.

Objective Medical Evidence
There is insufficient reasoning and discussion of the record remaining to overcome the

ALJ’s errors regarding the Plaintiff’s work history and daily living activities. It appears that the
primary reason on which the ALJ relied for discounting the Plaintiff’s subjective testimony was
that his testimony was not supported by the medical record. The ALJ acknowledged the
Plaintiff’s testimony regarding the use of a cane, difficulty grasping objects, and urinary
frequency, but found, rather summarily, that these limitations were not documented anywhere in
the record. (R. 42.) 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.

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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 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). The Court acknowledges 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. But, the Court has found that the
ALJ’s other considerations are fatally flawed. The Court therefore finds that the ALJ has failed
to build an accurate and logical bridge between the evidence and her conclusions.

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

SO ORDERED on August 28, 2018.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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