Lewis v. Commissioner of Social Security
Filing
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OPINION AND ORDER: The Court GRANTS the relief sought in the Social Security Opening Briefof Plaintiff 16 , REVERSES the final decision of the Commissioner of Social Security, and REMANDS this matter for further proceedings consistent with this Opinion and Order. The CourtDENIES Plaintiffs request to award benefits. Signed by Magistrate Judge Paul R Cherry on 10/31/2014. (rmn)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
KENNETH E. LEWIS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.
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Cause No.: 2:13-CV-436-PRC
OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Kenneth E. Lewis
on November 27, 2013, and a Social Security Opening Brief of Plaintiff [DE 16], filed on April 25,
2014. The Commissioner filed a response brief on August 4, 2014, and Plaintiff filed a reply on
August 18, 2014. Plaintiff challenges the July 17, 2012 decision of the Administrative Law Judge
(ALJ) that he is not disabled under the Social Security Act.
I. Background
Plaintiff filed for supplemental security income (SSI) on September 27, 2010, alleging that
he has been disabled since October 28, 2005, as a result of degenerative disc disease, bilateral
osteoarthritis of the knees, hypertension, coronary artery disease, and type-two diabetes. He is
morbidly obese—he stands 6' 1" tall and weighs about 320 pounds. His applications for SSI were
denied initially on December 20, 2010, and upon reconsideration on February 11, 2011.
He filed a timely request for a hearing, which was held in Valparaiso, Indiana, before ALJ
Henry Kramzyk on June 8, 2012. The ALJ heard testimony from Plaintiff as well as from vocational
expert (VE) Lee O. Knutson. Plaintiff was represented at the hearing by attorney Matt Gruca.1
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Plaintiff appeared for the hearing by video conference.
On July 17, 2012, the ALJ issued a written decision denying Plaintiff’s claims for disability
benefits, making the following findings.
1.
The claimant has not engaged in substantial gainful activity
since September 27, 2010, the application date.
2.
The claimant has the following severe impairments:
degenerative disc disease of the lumbar spine; obesity; and
osteoarthritis of the knees.
3.
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.
4.
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
416.967(b), as the claimant can lift and/or carry 20 pounds
occasionally and 10 pounds frequently; stand and/or walk for
up to 6 hours; and sit for up to 6 hours. The claimant can
never climb ladders, ropes, or scaffolds, but can occasionally
climb ramps and stairs; and occasionally balance, stoop, and
crouch, but never kneel or crawl.
5.
The claimant is unable to perform any past relevant work.
6.
The claimant was born in 1958 and was 52 years old, which
is defined as an individual closely approaching advanced age,
on the date the application was filed.
7.
The claimant has a high school education and is able to
communicate in English.
8.
Transferability of job skills is not material to the
determination of disability because using the MedicalVocational Rules as a framework supports a finding that the
claimant is “not disabled,” whether or not the claimant has
transferable job skills.
9.
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
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can perform.
10.
The claimant has not been under a disability, as defined in the
Social Security Act, since September 27, 2010, the date the
application was filed.
On October 29, 2013, 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. § 416.1481. On November
27, 2013, Plaintiff filed this civil action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) for review
of the Agency’s decision.
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).
II. 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, decide questions of credibility, or substitute its judgment
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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. 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 [the 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’ConnorSpinner, 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 [the ALJ’s] 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.”).
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III. Disability Standard
To be eligible for disability benefits, a claimant must establish that he 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 him from
doing his previous work, but considering his age, education, and work experience, it must also
prevent him 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 not, 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 not, 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
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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 RFC. The RFC
“is an administrative assessment of what work-related activities an individual can perform despite
[the individual’s] 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 one through four,
whereas the burden at step five is on the ALJ. Zurawski, 245 F.3d at 886; see also Knight v. Chater,
55 F.3d 309, 313 (7th Cir. 1995).
IV. Analysis
Plaintiff marshals three arguments for why the ALJ’s decision should be remanded for
further consideration or reversed outright. He contends that the ALJ erred in ignoring contrary
evidence, that the ALJ’s credibility analysis was patently wrong, and that the ALJ failed to properly
consider the exacerbating effects of Plaintiff’s morbid obesity. The Court considers each argument
in turn.
A. Opinion of Consulting Physician Dr. Onyeukwu
Plaintiff underwent a consultative examination in November 2010 with Dr. Geoffrey
Onyeukwu. The ALJ’s decision noted the following findings from Dr. Onyeukwu’s examination:
1.
That Plaintiff stated that he did not experience any fatigue,
chest pains, or shortness of breath;
2.
That he had a normal musculoskelatal exam, with full range
of motion in his extremities and spine; and had full strength
in his joints with normal fine finger ability;
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3.
That he had difficulty stooping, squatting, and standing from
a sitting position; and
4.
That he did not use an assistive device and had a steady gait.
Absent from the ALJ’s analysis, however, was any mention of Dr. Onyeukwu’s opinion that Plaintiff
“would not be able to stand for long periods of time due to polyarthritis”; likewise missing was any
statement about what weight the ALJ gave to Dr. Onyeukwu’s findings. (AR 253).
Plaintiff contends that these omissions warrant remand since this evidence conflicts with the
ALJ’s RFC finding that Plaintiff could stand six hours out of an eight-hour work day. This matters
because a finding that Plaintiff could not stand for at least six hours in an eight-hour work day would
support, at most, a finding that Plaintiff could do sedentary work.
Under the Medical-Vocational Guidelines, this limitation would render Plaintiff disabled so
long as he had no transferable job skills. 20 C.F.R. Pt. 404, Subpt. P, App. 2 Rule 201.12–14.
Though the ALJ made no finding about whether Plaintiff had any transferable job skills, this seems
likely given that the VE testified that the only job skills Plaintiff had were related to construction,
which is heavy work.
“While the ALJ need not articulate his reasons for rejecting every piece of evidence, he must
at least minimally discuss a claimant’s evidence that contradicts the Commissioner’s position.”
Godbey v. Apfel, 238 F.3d 803, 808 (7th Cir. 2000) (citing Green, 51 F.3d at 101); Clifford, 227 F.3d
at 871. “An ALJ may not selectively discuss portions of a physician’s report that support a finding
of non-disability while ignoring other portions that suggest a disability.” See Campbell, 627 F.3d
at 306 (citing Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009)); Godbey, 238 F.3d at 808 (“the
ALJ’s failure to address Dr. Merenkov’s report in its entirety prevents this court from tracking the
ALJ’s reasons for discounting it.” (citing Clifford, 227 F.3d at 871)).
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The Commissioner responds that the single sentence in Dr. Onyeukwu’s opinion regarding
how long Plaintiff could stand is not specific enough to provide meaningful insight into Plaintiff’s
functional capacity since Dr. Onyeukwu did not explain what constituted “long periods of time.” She
contends that Plaintiff has cited no authority showing that the general statement that Plaintiff could
not stand for long periods of time was inconsistent with the ALJ’s finding that Plaintiff could stand
for six hours of an eight-hour work day. Thus, according to the Commissioner, the ALJ was not
obligated to discuss this particular finding.
To support this, she looks to Books v. Chater, a 1996 case in which the Seventh Circuit Court
of Appeals concluded that the evidentiary value of a doctor’s opinion that did not discuss the extent
of the plaintiff’s limitations was, at best, of slight evidentiary value. 91 F.3d 972, 978 (7th Cir.
1996). The comparison is not convincing. While, in both this case and in Books, the findings did not
included any estimation of what tasks could be performed safely, the doctor in Books also said
nothing about the extent of the plaintiff’s disability, but confined himself solely to diagnosis. Dr.
Onyeukwu, by contrast, did venture an opinion: Plaintiff is unable to stand for long periods of time.
Contrary to the Commissioner’s contention, the ALJ’s standing requirement in the RFC
determination is long enough that at least some discussion of this finding was required. His failure
to do so is an error.
The Commissioner argues in the alternative that the error is harmless. Harmless error is an
exception to the Chenery doctrine, but the Seventh Circuit Court of Appeals has warned that “courts
must take care that the exception does not swallow the rule.” Parker, 597 F.3d at 924. As such, a
finding of harmless error is only appropriate when “it is predictable with great confidence that the
agency will reinstate its decision on remand because the decision is overwhelmingly supported by
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the record though the agency’s original opinion failed to marshal that support.” Spiva v. Astrue, 628
F.3d 346, 353 (7th Cir. 2010). No such confidence is warranted here. The ALJ’s opinion, though it
never states what weight it gave Dr. Onyeukwu’s opinion, cites it positively and in such a way that
it appears to support the ALJ’s RFC determination.
This Court cannot say with confidence that the outcome would be the same had this piece
of evidence, which relates directly to an issue that is outcome determinative, been considered and
discussed. Remand is thus required. On remand, the ALJ should consider Dr. Onyeukwu’s finding
that Plaintiff could not stand for long periods of time and should articulate the weight given to that
opinion, supporting that determination with a reasoned explanation.
B. Credibility
In making a disability determination, the ALJ must consider a claimant’s statements about
his symptoms, such as pain, and how the claimant’s symptoms affect his daily life and ability to
work. See 20 C.F.R. § 416.929(a). Subjective allegations of disabling symptoms alone cannot
support a finding of disability. Id. In determining whether statements of symptoms contribute to a
finding of disability, the regulations set forth a two-part test: (1) the claimant must provide objective
medical evidence of a medically determinable impairment or combination of impairments that
reasonably could be expected to produce the alleged symptoms; and (2) once an ALJ has found an
impairment that reasonably could cause the symptoms alleged, the ALJ must consider the intensity
and persistence of these symptoms. Id.
The ALJ must weigh the claimant’s subjective complaints, the relevant objective medical
evidence, and any other evidence of the following factors:
1.
The individual’s daily activities;
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2.
Location, duration, frequency, and intensity of pain or other symptoms;
3.
Precipitating and aggravating factors;
4.
Type, dosage, effectiveness, and side effects of any medication;
5.
Treatment, other than medication, for relief of pain or other symptoms;
6.
Other measures taken to relieve pain or other symptoms;
7.
Other factors concerning functional limitations due to pain or other
symptoms.
See 20 C.F.R. § 416.929(c)(3). An ALJ is not required to give full credit to every statement of pain
made by the claimant or to find a disability each time a claimant states he is unable to work. See
Rucker v. Chater, 92 F.3d 492, 496 (7th Cir. 1996). However, Ruling 96-7p provides that 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.” SSR 96-7p,
1996 WL 374186, at *6 (Jul. 2, 1996). “Because the ALJ is ‘in the best position to determine a
witness’s truthfulness and forthrightness . . . this court will not overturn an ALJ’s credibility
determination unless it is ‘patently wrong.’” Shideler v. Astrue, 688 F.3d 306, 310–11 (7th Cir.
2012) (quoting Skarbek v. Barnhart, 390 F.3d 500, 504–05 (7th Cir. 2004)); see also Prochaska, 454
F.3d at 738. Nevertheless, “an ALJ must adequately explain his credibility finding by discussing
specific reasons supported by the record.” Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013)
(citing Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009)).
As an initial matter, Plaintiff attacks the ALJ’s use of boilerplate language in the credibility
determination. The Seventh Circuit Court of Appeals has often criticized this language. See, e.g.,
Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012). But an ALJ’s use of the boilerplate language
does not amount to reversible error if he “otherwise points to information that justifies his credibility
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determination.” Pepper, 712 F.3d at 367–68. The Court thus considers the substance of the ALJ’s
analysis.
Plaintiff argues that the ALJ improperly analyzed his credibility because he improperly relied
on the temporary relief Plaintiff got from injections and treatment, Plaintiff’s own testimony,
Plaintiff’s conservative treatment, and that Plaintiff was not prescribed a cane. The Commissioner
responds that these were not errors and, at any rate, Plaintiff ignored many good reasons the ALJ
provided for finding Plaintiff not credible. While the Government is correct that the ALJ’s
discussion of Plaintiff’s credibility and the medical evidence is in many respects thorough, this
matter is being remanded on other grounds and further consideration of the areas Plaintiff objects
to is hence warranted.
Regarding Plaintiff’s conservative treatment, the ALJ mentioned that injections, medications,
and physical therapy reduced Plaintiff’s pain. However, his credibility discussion does little to
explain that these gains were often temporary and that, at the hearing, Plaintiff’s testified that his
pain had gotten worse. Fuller discussion of Plaintiff’s treatment, including its sometimes temporary
effectiveness, should take place on remand. Likewise, discussion of Plaintiff’s ability to walk for
up to half an hour should include mention of Plaintiff’s testimony that he takes short breaks and that
he only walks on his good days. Generally, a fuller discussion of Plaintiff’s testimony regarding his
ability to stand, lift, walk, etc. is warranted.
In the same vein, the ALJ should also ask Plaintiff about his compliance with treatment
directions, including weight loss. And the ALJ should make clear what impact Plaintiff’s pursuit of
unemployment benefits had on his credibility assessment, consistent with the applicable law and
supported by a reasoned explanation.
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Finally, the Court notes that the lack of prescription for a cane does not appear to have been
important in the credibility determination. Indeed, the ALJ’s opinion barely mentions it, simply
stating that Plaintiff does not have a prescription for it. As Plaintiff points out, the use of an
ambulatory aid such as a cane does not require a prescription and the lack of a prescription does not
alone discredit a claimant’s testimony. Parker v. Astrue , 597 F.3d 920, 922 (7th Cir. 2010); Terry
v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009). If, on remand, Plaintiff’s use of a cane is relied on in
assessing credibility, it should be discussed in greater detail, consistent with the applicable law.
C. Obesity
Plaintiff stands 6' 1" and weighs about 320 pounds. His BMI is thus 42.2, which is morbidly
obese. The ALJ found obesity to be a severe impairment, meaning that it imposed more than a
minimal impact on his ability to engage in basic work activity, and he mentioned Plaintiff’s weight
throughout his decision. This notwithstanding, the ALJ did little to explain how Plaintiff’s obesity
impaired him. Plaintiff objects to this. As above, Plaintiff’s point, though perhaps not on its own
sufficient to justify remand, is well taken. Cf. Skarbek, 390 F.3d at 504. On remand, the ALJ is
directed to explain in more detail the impact of Plaintiff’s obesity on Plaintiff’s RFC.
V. Conclusion
For these reasons, the Court GRANTS the relief sought in the Social Security Opening Brief
of Plaintiff [DE 16], REVERSES the final decision of the Commissioner of Social Security, and
REMANDS this matter for further proceedings consistent with this Opinion and Order. The Court
DENIES Plaintiff’s request to award benefits.
SO ORDERED this 31st day of October, 2014.
s/ Paul R. Cherry
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MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc:
All counsel of record
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