Miller v. Commissioner of Social Security

Filing 28

OPINION AND ORDER: The decision of the Commissioner is REVERSED and this case is REMANDED to the Social Security Administration for further proceedings consistent with this Courts opinion pursuant to sentence four of 42 U.S.C. §405(g). Signed by Judge Rudy Lozano on 4/24/2015. (rmn)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
NOAH M. MILLER,

)
)
)
)
)
) NO. 2:13–CV-028
)
)
)
)
)

Plaintiff,
vs.
CAROLYN W. COLVIN, COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

OPINION AND ORDER
This

matter

is

before

the

Court

for

review

of

the

Commissioner of Social Security’s decision denying Disability
Insurance Benefits to Plaintiff Noah M. Miller.

For the reasons

set forth below, the decision of the Commissioner is REVERSED
and this case is REMANDED to the Social Security Administration
for further proceedings consistent with this opinion pursuant to
sentence four of 42 U.S.C. section 405(g).

BACKGROUND
On

June

application

9,

for

2010,
Social

Noah

M.

Security

Miller

(“Miller”)

Disability

Benefits

filed

an

(“DIB”)

under Title II of the Social Security Act, 42 U.S.C. section 401
et seq.
13, 2009.

Miller alleged that his disability began on February
The Social Security Administration (“SSA”) denied his

1

initial

application

and

also

denied

his

claim

upon

reconsideration.
Miller

requested

a

hearing,

and

on

December

22,

2011,

Miller appeared with his attorney at an administration hearing
before

Administrative

Law

Judge

(“ALJ”)

Henry

Kramzyk.

Testimony was provided by Miller and vocational expert (“VE”)
Leonard M. Fisher.
decision

denying

On December 29, 2011, the ALJ issued a
Miller’s

claim,

finding

him

not

disabled

because he is capable of making a successful adjustment to other
work that exists in significant numbers in the national economy.
(Tr. 25.)
Miller requested that the Appeals Council review the ALJ’s
decision, but that request was denied.
decision

became

the

Commissioner’s

Accordingly, the ALJ’s

final

decision.

See

20

C.F.R. § 422.210(a).

Miller has initiated the instant action

for

of

judicial

review

the

Commissioner’s

final

decision

pursuant to 42 U.S.C. section 405(g).

DISCUSSION1
Facts
Miller was born in September 1979, and was 29 years old on
the alleged disability onset date of February 13, 2009.

1

(Tr.

These facts have been borrowed liberally from the parties’
briefs.
2

165.)
past

He has a high school education.
relevant

employment

as

carpenter, and final finisher.

(See id.)

Miller alleges the

impairments:

degenerative

disc

an

Miller’s

includes

following

work

(Tr. 170.)

assembler,

disease;

essential

tremors disease; arthritis; and knee and hip problems.

(Tr.

169.)
Medical Evidence
The medical evidence can be summarized as follows:
Prior to his alleged onset date, Miller suffered from low
back pain and tremors in his hands.
Miller’s

orthopedic

surgeon,

Dr.

(Tr. 253.)
Alan

In June 2007,

W.

McGee,

M.D.,

recommended physical therapy and pain medication for his back
pain.

(Tr. 249-50.)
On

January

bilateral
fusion.

15,

2008,

decompressive
(Tr. 313.)

Miller

underwent

laminotomies,

an

L4-5,

L5-S1

foraminotomies,

and

In April 2008, Miller told Dr. McGee that

he was “doing exceptionally well” after surgery, though he had
some low back pain.
for

pain,

and

restrictions.

was
(Id.)

(Tr. 301.)
allowed

Miller was prescribed Vicodin
to

return

to

work

with

no

In December 2008, Miller met with his

primary care physician, Dr. James F. Hanus, D.O., regarding pain
in his knee, and numbness in his right arm and hand.
61.)

3

(Tr. 259-

From

February

physician.

2009

(Tr. 19.)

to

July

2010,

Miller

did

not

see

In July 2010, Miller received a physical

consultative evaluation from Dr. Gina Moore Dudley, M.D.
264-67.)

a

(Tr.

Among other things, Dr. Moore Dudley recorded Miller’s

spinal fusion surgery and claims of tremors in his hands since
age eight.

(Tr. 264.)

Miller told Dr. Moore Dudley that he

could stand for three to four hours in an eight hour day, walk
on level ground for a mile, sit for one hour, lift up to 25
pounds, and walk upstairs with difficulty.

(Tr. 265.)

Dr.

Moore Dudley found that Miller’s “ambulation was normal,” his
“gait

was

okay

ambulation.”

with

no

(Tr. 266.)

assistive

device

required

Dr. Moore Dudley provided, in part,

the following functional assessment of Miller:
for

at

least

restrictions
require

six
in

one;”

hours;

terms
lift

for

of
and

sit
an

without

restrictions;

assistive

carry

stand and walk

device

occasionally

“have

as

he

did

50

pounds

no
not
and

frequently 25 pounds, with some decrease in his range of motion;
have infrequent postural limitations secondary to his decreased
range of motion; infrequently have some difficulty with bending,
stooping

and

limitations.

kneeling;

and

no

manipulative

or

environmental

(Tr. 266-67.)

On August 18, 2010, State agency physician Dr. Fernando
Montoya, M.D., completed a Physical Residual Functional Capacity
Assessment of Miller.

(Tr. 269-76.)
4

Dr. Montoya’s assessment

of Miller’s standing, walking and lifting limitations was the
same

as

Dr.

Moore

Dudley’s.

(Tr.

270.)

In

addition,

Dr.

Montoya limited Miller to six hours of sitting in an eight hour
day, and

suggested the following postural limitations:

never

climbing scaffolding; and only occasionally balancing, stooping,
kneeling,

crouching,

(Tr. 271.)

crawling,

or

climbing

ramps

or

stairs.

Dr. Montoya also suggested that Miller avoid uneven

slippery surfaces and unprotected heights.

(Tr. 273.)

State

agency physician, Dr. J. Sands, M.D., affirmed Dr. Montoya’s
opinion on December 21, 2010.

(Tr. 277.)

In December 2010, Miller reported that the pain in his back
was worse than it had been in August 2010, and that he was
taking

over-the-counter

little bit.”

(Tr. 192.)

pain

medications,

which

“help[ed]

a

Miller also noted that he could stand

for one hour and sit for 30 minutes.

(Id.)

On February 15, 2011, Dr. Hanus conducted a physical exam
of Miller.

(Tr. 291.)

Dr. Hanus noted that Miller had severe

pain in his lower back that caused him to limp, and right leg
pain.

(Id.)

Miller rated his pain as 8 out of 10.

(Id.)

Miller also complained of numbness and tingling in his hands and
forearms, and that he was dropping objects.

(Id.)

Neurological

testing revealed decreased grip strength in both hands, as well
as Phalen and Tinel in both arms, indicating probable bilateral
carpal tunnel syndrome.

(Id.)

The results of a straight leg
5

lifting test were negative.

(Id.)

Dr. Hanus recommended a

magnetic resonance imaging (“MRI”) of Miller’s lumbosacral spine
and an electromyography (“EMG”) of both arms, but because Miller
had “no insurance and no money coming in,” they would delay
these tests until Miller could pay for them.

(Id.)

On March 18, 2011, an MRI of Miller’s lumbar spine was
performed

that

displayed

post

fusion at L4-5 and L5-S1.

operative

(Tr. 289.)

changes

of

posterior

It did not show recurrent

disc bulge or herniation, central canal stenosis, lateral recess
or foraminal stenosis.

(Id.)

On March 30, 2011, Dr. Bhupendra K. Shah, M.D., performed
an

electromyogram

(“EMG”)

on

Miller.

(Tr.

284.)

The

EMG

results suggested a mild degree ulnar nerve entrapment of the
right wrist and borderline to very minimal ulnar nerve entrap at
the left wrist.

(Id.)

Because the changes were “very minimal

at best,” Dr. Shah recommended clinical correlation.

(Id.)

On April 7, 2011, Miller underwent an MRI of his cervical
spine, the results of which were “unremarkable” with minimal
disc

desiccation

and

disc

spine with no encroachment.

bulge

present

(Tr. 279-80.)

in

the

mid-cervical

In a letter to Dr.

Hanus dated April 12, 2011, Dr. Shah noted that Miller walked
with a limp, used a cane, and had mild tremors of his right
hand.

(Tr. 279.)

6

On

May

11,

2011,

Dr.

Hanus

completed

a

Medical

Source

Statement diagnosing Miller with severe and constant back pain
and tremors.

(Tr. 294-98.)

Dr. Hanus determined that Miller

was limited to sitting, standing and walking for less than one
hour

during

an

eight-hour

work

day,

lifting

ten

pounds

occasionally, and occasionally balancing, but never stooping.
(Tr. 296-97.)
Dr. Hanus’s treatment notes from June, July, and August
2011 document Miller’s complaints of pain in his back and neck,
and his right arm shakiness and muscle spasms.

(Tr. 429-30.)

Dr. Hanus prescribed Percocet for pain, as well as Valium and
Zanaflex for the muscle spasms.

(Tr. 429-31, 452.)

On or about November 1, 2011, neurologist Dr. Madhav Bhat,
M.D.,

conducted

a

neurological

examination

of

Miller,

taking

into consideration the results of Miller’s prior MRI and EMGs.
(Tr. 412-13.)

Dr. Bhat concluded the examination results were

“unremarkable,” and attributed the pain in Miller’s neck, right
arm, and right leg to mechanical sources.

(Tr. 413.)

hand tremors were found to be “nonspecific.”

(Id.)

Miller’s
Dr. Bhat

recommended no other specific workup for Miller, but suggested
that he would benefit from a vocational rehabilitation program.
(Id.)

7

Hearing Testimony
Miller testified that he last worked in February 2009, when
he was laid off because his employer shut down.

(Tr. 38.)

He

testified that he received unemployment benefits for “I believe
nine months.
they lasted.”

I’m not entirely sure.
(Id.)

I can’t remember how long

Miller explained that he cannot work due

to his severe back pain, essential tremors, and acute carpel
tunnel in both wrists.

(Tr. 45-46.)

Miller indicated that

medications help for the pain for a short period of time.
49.)

He also lies down to alleviate his pain approximately four

to five hours during an eight hour period each day.
62.)

(Tr. 61-

Miller stated that his tremors prevent him from reading or

inspecting something while he holds it.
that

(Tr.

he

has

numbness

and

tingling

in

medication did not help with the tremors.

(Tr. 66.)
his

hands,

He noted
and

(Tr. 67-68.)

that

Miller

also testified that he cares for his son, does dishes, cooks,
does

laundry,

shops,

takes

care

visits with friends and family.

of

his

personal

needs,

and

(Tr. 51-55.)

Miller testified that he started using a cane approximately
six months before the hearing “to help [him] get around.”
59-60.)

(Tr.

According to Miller, the cane alleviates the pain on

one side of his body and helps him with his balance problems.
(Tr. 60.)

During the hearing, the ALJ accepted evidence of a

prescription from Dr. Hanus for a walking cane for Miller.
8

(Tr.

34-35.)

The prescription noted Miller’s “short leg syndrome;

neurological disorder effecting [right] arm [and] leg; trouble
with balance.”

(Tr. 467.)

Miller testified that if he wears

specially

boots

accommodate

made

that

his

shorter

leg,

he

doesn’t necessarily need his cane, but he takes the cane with
him.

(Tr. 60.)
After Miller testified, the ALJ asked the VE to consider a

hypothetical individual who was the same age as Miller and had
the

same

work

experience

and

education.

(Tr.

74.)

This

individual could occasionally climb ramps and stairs but never
climb ladders, ropes, or scaffolds, and could only occasionally
balance, stoop, crouch, kneel, and crawl.
have

to

surfaces

avoid
and

concentrated

even

moderate

(Tr. 72.)

He would

exposure

to

uneven

and

slippery

exposure

to

unprotected

heights.

(Tr. 72-73.)

The ALJ asked the VE several questions about this

hypothetical

individual,

using

lifting, standing and walking.

different

limitations

(Tr. 72-75.)

as

to

The VE testified

that the hypothetical individual could not perform Miller’s past
relevant work.

(Tr. 73.)

The ALJ proposed an individual who could lift, carry, push
and pull twenty pounds occasionally and ten pounds frequently,
and could sit, stand, and walk for up to six hours a day.
74.)
work

(Tr.

The VE testified that this hypothetical individual could
as

a

school

bus

monitor
9

(DOT

#

372.667-042),

school

crossing guard (DOT # 371.567-010), parking lot attendant (DOT #
915.473-010), office helper (DOT # 239.567-010) and encapsulator
(DOT # 726.687-022).

(Id.)

Review of Commissioner’s Decision
This

Court

has

authority

to

review

decision to deny social security benefits.

the

Commissioner’s

42 U.S.C. § 405(g).

“The findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive
. . . .”

Id.

evidence

as

Substantial evidence is defined as “such relevant
a

reasonable

support a decision.”

mind

might

accept

as

adequate

to

Richardson v. Perales, 402 U.S. 389, 401

(1971); see Moon v. Colvin, 763 F.3d 718, 721 (7th Cir. 2014)
(noting

“this

deferential

standard

of

favor of upholding the ALJ’s decision”).

review

is

weighted

in

In determining whether

substantial evidence exists, the Court shall examine the record
in its entirety, but shall not substitute its own opinion for
the ALJ’s by reconsidering the facts or reweighing the evidence.
See Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003).

With

that in mind, however, this Court reviews the ALJ’s findings of
law de novo, and if the ALJ makes an error of law, the Court may
reverse without regard to the volume of evidence in support of
the factual findings.

White ex rel. Smith v. Apfel, 167 F.3d

369, 373 (7th Cir. 1999).

10

As a threshold matter, for a claimant to be eligible for
DIB benefits under the Social Security Act, the claimant must
establish that he is disabled.
qualify

as

being

disabled,

42 U.S.C. § 423(d)(1)(A).

the

claimant

must

be

unable

To
“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.”
this

Id.

To determine whether a claimant has satisfied

statutory

definition,

the

ALJ

performs

a

five-step

evaluation:
Step 1:

Is the claimant performing substantially
gainful activity?
If yes, the claim is
disallowed; if no, the inquiry proceeds to
Step 2.

Step 2:

Is the claimant’s impairment or combination
of impairments “severe” and expected to last
at least twelve months? If not, the claim is
disallowed; if yes, the inquiry proceeds to
Step 3.

Step 3:

Does the claimant have an impairment or
combination of impairments that meets or
equals the severity of an impairment in the
SSA’s Listing of Impairments, as described
in 20 C.F.R. § 404, Subpt. P, App. 1?
If
yes,
then
claimant
is
automatically
disabled; if not, then the inquiry proceeds
to Step 4.

Step 4:

Is the claimant able to perform his past
relevant work? If yes, the claim is denied;
if no, the inquiry proceeds to Step 5, where
the
burden
of
proof
shifts
to
the
Commissioner.
11

Step 5:

See

20

Is the claimant able to perform any other
work within his residual functional capacity
in the national economy? If yes, the claim
is denied; if no, the claimant is disabled.

C.F.R.

§

404.1520(a)(4)(i)–(v);

see

also

Herron

v.

Shalala, 19 F.3d 329, 333 n.8 (7th Cir. 1994).
In this case, the ALJ found that Miller had not engaged in
substantial gainful activity since February 13, 2009, his alleged
onset date.

(Tr. 16.)

The ALJ found that Miller suffers from

the following severe impairments:

post-operative changes of the

lumbar spine, degenerative changes of the cervical spine, and
atypical tremors.
The

ALJ

(Id.)

further

found

that

Miller

did

not

have

an

impairment or combination of impairments that meets or medically
equals
C.F.R.

the

severity

Part

404,

of

one

of

Subpart

P,

the

Appendix

404.1520(d), 404.1525, and 404.1526).
the

following

Residual

listed

impairments
1

(20

(Tr. 17.)

Functional

in

C.F.R.

§§

The ALJ made

Capacity

(“RFC”)

determination:
[T]he claimant has the [RFC] to perform light work as
defined in 20 CFR 404.1567(b) in that he can lift,
carry, push and pull up to 20 pounds occasionally and
up to 10 pounds frequently. He can sit for a total of
up to 6 hours a day, stand and/or walk to a total of 6
hours per day.
He can occasionally climb ramps and
stairs, but can never climb ladders, ropes, or
scaffolds. He can occasionally balance, stoop, crouch,
kneel, and crawl.
The claimant would need to avoid
concentrated exposure to uneven and slippery surfaces
and would have to avoid even moderate exposure to
unprotected heights.

12

20

(Id.)

Based upon Miller’s RFC, the ALJ found that Miller is

unable

to

perform

his

past

relevant

work

as

an

assembler,

carpenter, or final finisher.

(Tr. 23-24.)

However, the ALJ

found

of

other

that

Miller

is

capable

performing

work

that

exists in significant numbers in the national economy, including
work as school bus monitor, school crossing guard, parking lot
attendant, office helper, and encapsulator.

(Tr. 24-25.)

Miller believes that the ALJ committed two errors requiring
reversal.

First, Miller alleges the ALJ rendered an improper

credibility determination.

(DE# 17 at 8-15.)

argues

an

that

the

ALJ

made

erroneous

RFC

Second, Miller
assessment,

presenting the VE with an incomplete hypothetical.

thus

(Id. at 15-

19.)
Credibility Determination
Miller claims that the ALJ failed to evaluate properly the
credibility of Miller’s testimony.

Because the ALJ is best

positioned to judge a claimant’s truthfulness, this Court will
overturn

an

ALJ’s

“patently wrong.”
Cir. 2004).
for

credibility

determination

only

if

it

is

Skarbek v. Barnhart, 390 F.3d 500, 504 (7th

However, the ALJ must articulate specific reasons

discounting

a

claimant’s

testimony

as

being

less

than

credible, and cannot merely ignore the testimony or rely solely
on a conflict between the objective medical evidence and the
claimant’s

testimony

as

a

basis
13

for

a

negative

credibility

determination.
Cir.

Schmidt v. Barnhart, 395 F.3d 737, 746-47 (7th

2005).

The

ALJ

must

make

a

credibility

determination

supported by record evidence and be sufficiently specific to
make clear to the claimant and to any subsequent reviewers the
weight given to the claimant’s statements and the reasons for
that weight.

See Lopez v. Barnhart, 336 F.3d 535, 539-40 (7th

Cir. 2003).
In evaluating the credibility of statements supporting a
Social Security Application, the Seventh Circuit has noted that
an ALJ must comply with the requirements of Social Security
Ruling 96-7p.
Cir. 2002).

See Steele v. Barnhart, 290 F.3d 936, 942 (7th
This ruling requires ALJs to articulate “specific

reasons” behind credibility evaluations; the ALJ cannot merely
state that “the individual’s allegations have been considered”
or that “the allegations are (or are not) credible.”
Furthermore,
assessing

the

the

ALJ

must

credibility

consider

specific

of

individual’s

an

SSR 96-7p.

factors

statement

including:
1.

The individual’s daily activities;

2.

The
location,
duration,
frequency,
and
intensity of the individual’s pain or other
symptoms;

3.

Factors that precipitate and aggravate the
symptoms;

4.

The type, dosage, effectiveness, and side
effect of any medication the individual
14

when

takes or has taken
other symptoms;

to

alleviate

pain

or

5.

Treatment,
other
than
medication,
individual receives or has received
relief of pain or other symptoms;

the
for

6.

Any
measures
other
than
treatment
the
individual uses or has used to relieve pain
or other symptoms . . . ; and

7.

Any
other
factors
concerning
the
individual’s
functional
limitations
and
restrictions due to pain or other symptoms.

SSR 96-7p; see Golembiewski v. Barnhart, 322 F.3d 912, 915-16
(7th Cir. 2003).
The
Miller’s

ALJ

considered

credibility.

activities,

and

each

of

The

found

ALJ

them

to

these

factors

addressed
be

in

assessing

Miller’s

inconsistent

daily

with

a

debilitating impairment because they indicated that Miller was
high functioning, active, independent, and capable of performing
general chores without assistance.

(Tr. 18-19, 21.)

The ALJ

considered Miller’s medical records, and found that they did not
indicate consistent complaints of pain because, at one time,
over-the-counter medications alleviated his pain, but at another
time, Miller described his pain as an “8 out 10.”
The

ALJ

symptoms.

found

that

(Tr.

no

22.)

factors
In

greatly

evaluating

(Tr. 19–22.)

aggravate
the

type,

Miller’s
dosage,

effectiveness, and side of effects of Miller’s medications, the
ALJ found that Percocet and Valium adequately relieved Miller’s
15

pain without side effects.

(Id.)

The ALJ also noted that

Miller’s treatment “consists mainly of physician’s visits and is
void of any conservative physical therapy or recommendations for
more

invasive

surgical

intervention.”

(Id.)

The

ALJ

discredited Miller’s testimony that he naps frequently because
the

record

did

not

indicate

that

alleviate any of Miller’s symptoms.
In

considering

inconsistencies
credibility.
testified

that

indicate

that

“other

that
(Id.)
he
he

factors,”

ALJ

were

necessary

to

(Id.)

detracted
The

naps

from

pointed

stopped

working

earned

income

in
in

the

ALJ

noted

Miller’s

out

that

February
2010,

overall

while
2009,

and

unemployment in 2010, despite testifying otherwise.

Miller
records

collected
(Id.)

The

ALJ also considered the opinions of examining physicians Drs.
Moore

Dudley

and

Montoya,

as

well

physician, Dr. Hanus, in some detail.

as

Miller’s

(Tr. 22-23.)

treating
Based on

all of these factors, the ALJ found that Miller’s statements
concerning the intensity, persistence and limiting effects of
his

symptoms

were

not

credible

inconsistent with the RFC assessment.

to

the

extent

they

were

(Tr. 19, 23.)

Miller argues that the ALJ erred by failing to properly
consider Miller’s subjective complaints of pain.

Miller first

maintains that when considering Miller’s daily activities, the
ALJ failed to differentiate between the exertion level required
16

for

sporadic

physical

activity

and

full-time

work.

See

Carradine v. Barnhart, 360 F.3d 751, 755–56 (7th Cir. 2004)
(explaining that an ALJ cannot rely solely on the claimant’s
activities to support a conclusion that she is not disabled
without showing how they translate to the ability to perform
full-time work); Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir.
2012) (noting daily activities allow greater flexibility than
full-time

work,

and

have

no

“minimum

standard”).

The

ALJ

summarized Miller’s daily activities as:
preparing himself breakfast, dressing himself, hanging
out with friends and family, spending time with his
son, and performing daily chores around the house
including laundry and occasionally mowing the lawn.
He also testified that he cares for his son every
other weekend and occasionally during the week and on
holidays, cooks meals, does laundry, does the grocery
shopping, and does not contend any problems with
personal care.
Beyond this, he testified that he
visits with family, spends time with friends, watches
television,
goes
out
to
dinner,
takes
his
grandparent’s [sic] shopping, spends time with his
mother, is a member of the local Moose Club and
attends meetings twice a month, reads the newspaper,
uses the computer, and has no problem with the public
or getting along with others.
(Tr. 18-19.)

Contrary to Miller’s allegation, the ALJ did not

equate the exertion required for Miller’s daily activities with
full-time work.

Rather, the ALJ found that “[t]hese activities

do not seem to be the abilities of someone with a debilitating
condition and further detract from the claimant’s credibility in
that he is alleging disability and an inability to work at any

17

exertional level.”

(Tr. 19; see Tr. 21 (noting Miller’s daily

activities “seem to indicate a high level of functioning and
contradict his allegations” of a debilitating impairment).)

An

ALJ may “consider whether the claimant’s daily activities are
inconsistent with [his] stated inability to work.”

Oakes v.

Astrue, 258 Fed. Appx. 38, 43 (7th Cir. 2007).
Moreover,

Miller

has

not

demonstrated

that

the

ALJ’s

decision regarding his credibility was patently incorrect.

This

was not a matter of the ALJ concluding that Miller was able to
perform

full-time

work

because

certain daily activities.
on

medical

evidence,

he

periodically

engaged

in

As noted above, the ALJ also relied

statements

relating

to

alleged

pain,

medical treatment, medications taken, and physicians’ opinions
to support his conclusion.

See Engle v. Colvin, No. 1:13–cv–

339, 2014 WL 6977691, *9 (N.D. Ind. Dec. 9, 2014) (affirming
ALJ’s decision where ALJ relied on several factors to support
credibility determination).

Even if the ALJ misconstrued the

evidence of Miller’s daily activities, the other evidence on
which he relied was sufficient to support his conclusion that
Miller’s
credible.

subjective

complaints

of

pain

were

not

entirely

See Everaert v. Barnhart, No. 03-C-0358-C, 2004 WL

1446173, *5 (W.D. Wis. Jun. 4, 2004) (affirming ALJ’s decision
where ALJ relied on evidence other than daily activities to
support credibility determination).
18

Next, Miller contends that the ALJ erred in discrediting
Miller’s complaints of pain.

Miller claims that his history of

back pain is well documented over several years, and points to
his

treatments

in

2007,

including

spinal surgery in early 2008.

physical

therapy,

(DE# 17 at 14.)

and

his

Miller also

challenges the ALJ’s finding that the treatment of his pain was
“conservative.”
The Court finds that the ALJ built the “logical bridge”
between

the

credibility

evidence
as

to

and

his

his

conclusions

pain.

The

ALJ

regarding

Miller’s

acknowledged

Miller’s

history of back pain prior to his alleged onset date, but noted
that

Dr.

McGee’s

post-operative

notes

document

Miller’s

exceptional recovery and only mild residual back pain.
19.)

(Tr.

The ALJ considered Dr. Hanus’s treatment notes following

Miller’s

surgery,

procedure.

(Id.)

which

do

not

mention

back

pain

after

the

And while Miller complained of pain to Dr.

Hanus in 2011, Dr. Hanus simply prescribed pain medication; he
did not recommend any physical therapy or other conservative or
invasive treatment.

(Tr. 20.)

Dr. Bhat’s 2011 treatment notes

indicate that Miller’s right arm pain was mechanical, that the
MRI

showed

no

evidence

of

disc

herniation

or

lumbar

spinal

stenosis, and there was no clinical evidence of cervical or
lumbosacral radiculopathy or entrapment neuropathy.

(Id.)

Dr.

Bhat recommended vocation rehabilitation, which indicated to the
19

ALJ that Miller has some ability to sustain employment.

(Id.)

The ALJ noted that for pain relief, Miller has taken over-thecounter and prescription medications, but has not undergone any
other form of treatment.

(Tr. 21.)

The ALJ also addressed

inconsistencies in Miller’s assertions regarding his level of
pain:

at

one

time,

over-the-counter

medications

sufficed

to

alleviate pain, while another time, Miller rated his pain as an
“8 out 10.”
823

(7th

(Tr. 21–22.)

Cir.

2007)

See Arnold v. Barnhart, 473 F.3d 816,

(“[S]ubjective

complaints

need

not

be

accepted insofar as they clash with other, objective medical
evidence in the record.”).

Thus, the ALJ relied upon ample

evidence to support his findings that Miller’s pain was not
consistent, and that his treatment for pain was conservative.
The Court finds that the ALJ properly supported his finding as
to the credibility of Miller’s complaints of consistent pain.
Finally, Miller argues that the ALJ’s statement that Miller
“was

collecting

unemployment

[benefits]

in

testifying otherwise” is factually untrue.

2010

in

(Tr. 22.)

spite

of

The Court

is precluded from reweighing evidence or determining issues of
fact.

Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999).

Instead,

the

determining

Court
whether

substantial evidence.

is
the

tasked
ALJ’s

with

the

decision

limited
is

issue

of

supported

by

Here, Miller testified that that he was

laid off on February 13, 2009, and that he received unemployment
20

benefits for approximately nine months.

(Tr. 38.)

A nine month

period that began in February (or even March) 2009 would have
ended before January 2010.
hearing

testimony

Thus, the Court finds that Miller’s

adequately

supports

the

ALJ’s

conclusion

regarding Miller’s unemployment benefits.2

The ALJ’s RFC Determination
Miller argues that the ALJ made an erroneous RFC assessment
by failing to incorporate all of Miller’s relevant limitations,
thus presenting the VE with an incomplete hypothetical.

Miller

argues the ALJ failed to (1) incorporate the effect of Miller’s
pain on his ability to perform work-related tasks, (2) include
the

greater

limitations

for

his

hands

in

the

address evidence that Miller needs to use a cane.

RFC,

and

(3)

In response,

the Commissioner maintains that the ALJ did not err because the

2

Miller also asserts that the ALJ improperly considered his lack
of medical care while he was unable to seek treatment due to
lack of health insurance. The Seventh Circuit disapproves of an
ALJ’s reliance on infrequent medical treatment where the
claimant does not have health insurance and is incapable of
paying medical bills. See Goins v. Colvin, 764 F.3d 677, 679-80
(7th Cir. 2014) (criticizing credibility determination that held
infrequent medical treatment against indigent claimant).
Here,
the decision states that Miller was “not seen by a physician
from February 2009 until July 2010, at which time he was
referred for a physical consultative evaluation. . . .”
(Tr.
19.) But the ALJ did not rely on Miller’s gap in treatment as a
basis for his credibility assessment.
Read in context, the
ALJ’s reference to this gap was merely part of the larger
chronology of Miller’s medical treatment. (See Tr. 19-21.)
21

VE

identified

a

significant

number

of

jobs

that

could

be

performed by someone with Miller’s limitations.
In

making

claimant’s

an

RFC

reported

finding,

the

limitations

evidence in the record.

ALJ

were

must

describe

inconsistent

why

with

a

the

See SSR 96–8p; Pepper v. Colvin, 712

F.3d 351, 363 (7th Cir. 2013).

The ALJ must build the necessary

“logical

evidence

bridge”

between

the

and

his

conclusions.

Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009).

Moreover,

the ALJ must orient the VE to the totality of the claimant’s
limitations.

O’Conner-Spinner v. Astrue, 627 F.3d 614, 619 (7th

Cir. 2010).

“Hypothetical questions posed to vocational experts

ordinarily

must

include

evidence in the record.”
original);

Young

v.

all

limitations

supported

by

medical

Steele, 290 F.3d at 942 (emphasis in

Barnhart,

362

F.3d

995,

1003

(7th

Cir.

2004).
The Court rejects Miller’s assertion that the ALJ erred by
failing to consider the effect of Miller’s pain on his ability
to perform work-related tasks.
incorporate

into

his

An ALJ is “required only to

hypotheticals

those

limitations that he accepts as credible.”
F.3d 503, 521 (7th Cir. 2009).

impairments

and

Simila v. Astrue, 573

As explained above, the ALJ’s

decision addressed Miller’s complaints of consistent pain and
provided reasons for discrediting them.

22

Therefore, the ALJ was

justified in not including greater limitations based on Miller’s
pain in the RFC.
Miller

also

asserts

that

the

ALJ

should

greater limitations for his hands in the RFC.

have

included

However, the ALJ

considered Miller’s claims relating to his hands and limited
Miller’s RFC accordingly.

(Tr. 20-21.)

neurological

Dr.

testing

by

Hanus

The decision notes that
in

February

2011

found

decreased grip strength in both hands, but no indication of the
degree of decrease.

(Tr. 20.)

Dr. Hanus documented Miller’s

complaints of tremors, but an EMG of Miller’s right arm in March
2011 was “essentially normal” and that Miller’s “symptoms were
minimal

at

best.”

(Tr.

20-21.)

The

results

of

Miller’s

comprehensive nerve testing were “normal,” possibly suggesting
“mild degree of ulnar nerve entrapment at the right wrist and
possible borderline to very minimal ulnar nerve entrapment in
the left wrist. . . . [E]ven Dr. Shah indicated that these
changes were very minimal at best.”

(Id.)

According to Dr.

Bhat, the results of neurological testing in November 2011 were
“unremarkable.”

(Tr. 21.)

Dr. Bhat found that Miller’s hand

tremors were nonspecific and there was no entrapment, and that
an MRI of the brachial plexus was normal.
states

that

“[g]iven

the

conclusive

(Id.)

nature

of

The decision
Dr.

Bhat’s

findings, and the tests conducted by Drs. Hanus and Shah,” the
ALJ gave Miller “the benefit of the doubt and limit[ed] his
23

[RFC] accordingly.”

(Id.)

It is not for this Court to reweigh

this evidence or resolve conflicts in the record.
362

F.3d

at

1001

(“Nor

may

we

reweigh

See Young,

evidence,

resolve

conflicts in the record, decide questions of credibility, or, in
general,

substitute

Commissioner.”).

our

The

own

Court

judgment
finds

that

for
the

that
ALJ

of

the

adequately

supported the RFC determination regarding Miller’s hands.
Regarding Miller’s use of a cane, the Court finds that the
ALJ’s

failure

to

address

this

evidence

requires

remand.

“Although the ALJ need not discuss every piece of evidence in
the record, he must confront the evidence that does not support
his conclusion and explain why it was rejected.”
Barnhart, 374 F.3d 470, 474 (7th Cir. 2004).

Indoranto v.

Courts in this

Circuit have found that failure to address a claimant’s use of a
cane requires remand.

See Thomas v. Colvin, 534 Fed. Appx. 546,

550

(remanding

(7th

Cir.

2013)

where

ALJ

failed

to

discuss

adequately claimant’s alleged need to use a cane); Oplinger v.
Colvin, No. 13-cv-642, 2015 WL 326809, at *6 (N.D. Ill. Jan. 23,
2015) (same).
The error . . . is not that the medical evidence
required the ALJ to find that [the claimant] needed a
cane to stand and walk, but that the ALJ failed to
consider the issue at all, leaving us without a
finding to review.
We cannot uphold the ALJ’s
decision based on a reason that the ALJ did not
articulate.

24

Thomas, 534 Fed. Appx. at 550 (emphasis in original) (citing
Kastner v. Astrue, 697 F.3d 642, 648 (7th Cir. 2012) and Jelinek
v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011)).
Here, the decision does not reference Miller’s use of a
cane at all.

While the decision mentions that Dr. Moore Dudley

found

could

Miller

walk

“without

the

need

of

any

assistive

devices” in July 2010 (Tr. 19), the record indicates that Miller
was using a cane in April 2011 (Tr. 279), and that Dr. Hanus
prescribed a cane for Miller in November 2011 for Miller’s short
leg syndrome, his neurological disorder effecting right arm and
leg, and his trouble with balance.

(Tr. 467).

At the hearing,

Miller testified that he began using a cane to help him get
around, and that the cane alleviates the pain on one side of his
body and helps him with his balance problems.

(Tr. 60.)

As

noted above, the decision discredits Miller’s testimony on other
issues, but it does not address his testimony regarding his use
of a cane.

Relying on prior medical evaluations and generally

discrediting Miller’s testimony without addressing his use of a
cane is not sufficient to build the necessary “logical bridge”
between the evidence and the ALJ’s conclusions.

See Thomas, 534

Fed. Appx. at 550 (citing Terry, 580 F.3d at 475).
Furthermore, the ALJ limited the VE to the particular facts
of the hypotheticals along with Miller’s age, education, and
work history, but did not incorporate the use of a cane into any
25

of the hypotheticals.

By the nature of the questioning, the VE

was prohibited from considering physical limitations he might
have

absorbed

record

or

by

either

through

listening

to

Young, 362 F.3d at 1003.

reviewing

Miller’s

the

hearing

evidence

on

testimony.

the
See

Because the ALJ failed to consider

Miller’s use of a cane, REMAND is required.

CONCLUSION
For

the

reasons

set

forth

above,

the

decision

of

the

Commissioner is REVERSED and this case is REMANDED to the Social
Security Administration for further proceedings consistent with
this opinion pursuant to sentence four of 42 U.S.C. section
405(g).

DATED:

April 24, 2015

/s/ RUDY LOZANO, Judge
United States District Court

26