Epting v. Commissioner of Social Security
Filing
23
OPINION AND ORDER: GRANTING 16 Social Security Opening Brief of Plantiff and REMANDING this matter for further proceedings consistent with this opinion. Signed by Magistrate Judge John E Martin on 3/29/2016. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DEBRA EPTING,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.
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CAUSE NO.: 2:14-CV-385-JEM
OPINION AND ORDER
This matter is before the Court on a Complaint for Judicial Review [DE 1], filed by Plaintiff
Debra Epting on October 17, 2014, and Plaintiff’s Memorandum in Support of Summary Judgment
or Remand [DE 16], filed by Plaintiff on March 9, 2015. Plaintiff requests that the Administrative
Law Judge’s decision to deny her disability benefits be reversed or, alternatively, remanded for
further proceedings. The Commissioner filed a response on May 20, 2015, and Plaintiff filed a reply
on June 15, 2015. For the following reasons, the Court grants Plaintiff’s request for remand
consistent with this opinion.
PROCEDURAL BACKGROUND
This is Plaintiff’s fourth application for disability. She first applied in 1992 and was denied.
She applied again in December 2004 and July 2010, alleging a disability onset date of September
1, 2004, and was denied both times. Plaintiff filed a fourth application for Disability and Disability
Insurance Benefits on October 11, 2011, again alleging a disability onset date of September 1, 2004.
After her application was denied initially and on reconsideration, Plaintiff requested an
administrative hearing. A hearing was held on April 17, 2013, at which Plaintiff and a Vocational
Expert testified. On May 22, 2013, Administrative Law Judge (“ALJ”) Henry Kramzyk issued an
opinon finding that Plaintiff not disabled. On August 14, 2013, the Appeals Council denied
Plaintiff’s request for review, leaving the ALJ’s decision as the final decision of the Commissioner.
The ALJ made the following findings under the required five-step analysis:
1. The claimant last met the insured status requirements of the Social
Security Act on December 31, 2009.
2. The claimant did not engage in substantial gainful activity during
the period from her alleged onset date of September 1, 2004, through
her date last insured of December 31, 2009.
3. Through the date last insured, the claimant had the following
severe impairments: hypertension, inflammatory polyarthritis, and
obesity.
4. Through the date last insured, the claimant does not have an
impairment or combination of impairments that meets or medical
equals one of the listed impairments in 20 C.F.R. Part 404, Subppart
P, Appendix 1.
5. The claimant had the residual functional capacity (“RFC”) to lift
and/or carry, push and/or pull 20 pounds occasionally, and 10 pounds
frequently; sit about 6 hours in an 8 hour work day; and stand and/or
walk about 6 hours in an 8 hour work day. The claimant could never
climb ladders, ropes or scaffolds; but could occasionally climb ramps
and stairs, balance, stoop, crouch, kneel or crawl. The claimant
needed to avoid concentrated exposure to hazards such as
unprotected heights and dangerous machinery.
6. Through the date last insured, the claimant was capable of
performing past relevant work as a clerk general and mailroom clerk.
7. The claimant was not under a disability, as defined in the Social
Security Act, at any time from September 1, 2004, the alleged onset
date, through December 31, 2009, the date last insured (20 CFR
404.1520(f)).
Pursuant to 42 U.S.C. § 405(g), Plaintiff initiated this civil action for judicial review of the
Commissioner’s final 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
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judgement 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).
FACTS
Plaintiff had lumbar surgery in 2000 and 2001. In 2001 through 2004, she experienced
residual effects of the surgery including back and leg pain. In April 2004, Plaintiff was diagnosed
with rheumatoid arthritis. Since her diagnosis, Plaintiff has gained significant weight and reported
constant morning stiffness with pain and swelling and increasingly poor shoulder, knee, ankle,
fingertip, and wrist mobility. Plaintiff has received treatment for her arthritis from several primary
medical providers: Dr. Parikh, Dr. Nayak, Dr. Joyce, and Dr. Serushan. Dr. Parikh treated Plaintiff
with joint injections of the knees and elbows to minimize swelling and directed the Plaintiff to not
stand more than two hours in an eight hour work day and use a cane with ambulation to help balance
her weight on her ankles. Dr. Serushan noted very tender areas in Plaintiff’s wrists, feet, knees, and
elbows and advised Plaintiff to limit heavy exertion. An examination performed by Dr. Nayak in
2009 found consistent tender points. Dr. Joyce also found tenderness and pain of the shoulder right
lateral epicondyle and clinical evidence of persistent ankle swelling and degenerative changes of the
metatarsal phalangeal joints bilaterally with hypertrophic spurring. Plaintiff reported to Dr. Joyce
that she suffered from fatigue and difficulty concentrating due to joint pain.
At the April 17, 2013, hearing, Plaintiff testified that since her alleged onset date in 2004,
she has suffered from chronic swelling in her right knee and stiffness and pain in her joints with
constant pain in her back, knees, elbows, writs, shoulders, hips, and neck. Plaintiff testified that she
frequently feels tired, often lies in bed for most of the weekend, and is frustrated by her lack of
energy and increased weight. Plaintiff testified that she also suffers skin rashes, chronic obstruction
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pulmonary disorder (COPD), and emphysema that impact her breathing and stamina. Plaintiff
testified that she takes several medications for her disorders and takes opioid medication to alleviate
her pain. Plaintiff testified that the medications rarely eased her symptoms and occasionally caused
adverse side effects that impaired her concentration.
Plaintiff testified that since her alleged onset date, she occasionally provides childcare for
her several grandchildren and is able to perform some basic household chores when necessary.
Plaintiff testified that she rarely picks up her grandchildren without shoulder and back pain or
remains seated in one place for more than fifteen minutes before her joint pain becomes unbearable
and she cannot turn her neck.
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
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
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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)). “A reversal and remand may be required, however, if the ALJ committed
an error of law or if the ALJ based the decision on serious factual mistakes or omissions.” Beardsley
v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014) (citations omitted).
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, as a reviewing
court, we 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, the claimant must establish that she suffers from a
“disability” as defined by the Social Security Act and regulations. The Act defines “disability” as
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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
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 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 functioning 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).
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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
[claimant’s] limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001) (citing SSR
96-8p, 1996 WL 374184 (Jul. 2, 1996); 20 C.F.R. § 404.1545(a)) (other citations omitted). 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).
ANALYSIS
A.
Listing
Plaintiff argues that the ALJ improperly evaluated whether her impairments medically
equaled Listing 14.09. The Commissioner argues that substantial evidence supports the ALJ’s
finding that Plaintiff did not meet or medically equal any listed impairment.
At Step Three of the disability inquiry, an ALJ must determine whether the claimant’s
impairments meet or equal the criteria of an impairment listed in the appendix to the social security
regulations. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). An individual suffering from
an impairment that meets or is the equivalent of the description of a Listing is conclusively presumed
disabled, and no further analysis is required. Bowen v. Yuckert, 482 U.S. 137, 141 (1987). “To meet
or equal a listed impairment, the claimant must satisfy all of the criteria of the listed impairment,”
and she “bears the burden of proving his condition meets or equals a listed impairment.” Maggard
v. Apfel, 167 F.3d 376, 380 (7th Cir. 1999); see also Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th
Cir.2006) (“[The plaintiff] has the burden of showing that his impairments meet a listing, and he must
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show that his impairments satisfy all of the various criteria specified in the listing.”); see also Knox
v. Astrue, 327 F. App’x 652, 655 (7th Cir.2009) (holding that the “claimant first has the burden to
present medical findings that match or equal in severity all the criteria specified by a listing.”).
Whether a claimant’s impairment equals a listing is a medical judgment, and an “ALJ must consider
an expert’s opinion on the issue.” Barnett v. Barnhart, 381 F.3d 664, 670 (7th Cir. 2004).
Medical Listing 14.09 addresses inflammatory arthritis:
A. Persistent inflammation or persistent deformity of:
1. One or more major peripheral weight-bearing joints
resulting in the inability to ambulate effectively (as
defined in 14.00C6); or
2. One or more major peripheral joints in each upper
extremity resulting in the inability to perforfine and
gross movements effectively (see 14.007)
OR
B. Inflammation or deformity in one or more major peripheral joints
with:
1. Involvement of two or more organs/body systems
with one of the organs/body systems involved to at
least a moderate level of severity; and
2. At least two of the constitutional symptoms or signs
(severe fatigue, fever, malaise, or involuntary weight
loss).
OR
C. Ankylosing spondylitis or other spondyloarthropathies, with:
1. Ankylosis (fixation) of the dorsolumbar or cervical
spine as shown by appropriate medically acceptable
imaging and measured on physical examination at 45°
or more of flexion from the vertical position (zero
degrees); or
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2. Ankylosis (fixation) of the dorsolumbar or cervical
spine as shown by appropriate medically acceptable
imaging and measured on physical examination at 30°
or more of flexion (but less than 45°) measured from
the vertical position (zero degrees), and involvement of
two or more organs/body systems with one of the
organs/body systems involved to at least a moderate
level of severity.
OR
D. Repeated manifestations of inflammatory arthritis, with at least two
of the constitutional symptoms or signs (severe fatigue, fever, malaise,
or involuntary weight loss) and one of the following at the marked
level:
1. Limitation of activities of daily living.
2. Limitation in maintaining social functioning.
3. Limitation in completing tasks in a timely manner
due to deficiencies in concentration, persistence, or
pace
20 C.F.R. § Pt. 404, Subpt. P, App. 1 § 14.09.
The ALJ found that despite Plaintiff’s diagnosed impairments, the medical evidence of record
did not document listing-level severity and that no “medical source mentioned findings equivalent
in severity to the criteria of any listed impairment, either individually or in combination.” AR 23. The
ALJ stated that in making this finding he considered the requirements of Medical Listing 14.09,
Plaintiff’s inflammatory arthritis, and the impact of Plaintiff’s obesity on her other conditions.
However, apart from mentioning the requirements of Listing 14.09, the ALJ did not include
any analysis as to how Plaintiff’s rheumatoid arthritis failed to meet the requirements of Listing
14.09. Under Listing 14.09, a claimant satisfies a showing of disability when she suffers from
inflammatory arthritis combined with fatigue, malaise, and difficulty in concentration, persistence,
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and pace. See 20 C.F.R. § Pt. 404, Subpt. P, App. 1 § 14.09. In this case, the ALJ provided no
analysis as to how Plaintiff’s reported symptoms of fatigue, malaise, and difficulty in concentration
failed to satisfy the Listing. In addition, a claimant satisfies a showing of disability under subsection
A of Listing 14.09 when she suffers from inflammatory arthritis combined with persistent
inflammation of a weight bearing joint and difficulty ambulating, but the ALJ provided no analysis
as to how Dr. Parikh’s finding that Plaintiff suffered from persistent ankle swelling and metatarsal
phalangeal joints degeneration, along with his instruction that Plaintiff ambulate with a cane, failed
to satisfy Listing 14.09.
That the ALJ failed to provide any analysis of why Plaintiff’s impairments did not satisfy
Listing 14.09 is particularly problematic considering that the medical evidence of record suggests that
Plaintiff may be disabled under either or both of two subsections of that Listing. The Seventh Circuit
Court of Appeals requires that an ALJ thoroughly evaluate whether a claimant meets the
requirements of a Listing and avoid a “perfunctory analysis.” Ribaudo, 458 F.3d at 584. In this case,
the Court concludes that the ALJ’s finding that Plaintiff did not meet Listing 14.09 based on a rote
mention of rheumatoid arthritis is insufficient. The ALJ must assess Plaintiff’s impairments
including rheumatoid arthritis and all symptoms attendant to the disorder and analyze whether those
symptoms satisfy a listing supported by a genuine review and application of the listing criteria.
Accordingly, this case is being remanded. On remand, the ALJ is directed to consider
Plaintiff’s symptoms and provide a complete analysis of whether Plaintiff meets or medically equals
a listing.
B.
Combination of Plaintiff’s Impairments
Plaintiff also argues that the ALJ failed to explain how he considered the limitations caused
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by Plaintiff’s combination of impairments and how he incorporated those limitations into her RFC.
The Commissioner argues that substantial evidence supports the ALJ’s decsion.
“Although [] impairments may not on their own be disabling, that would only justify
discounting their severity, not ignoring them altogether. Moreover, . . . an ALJ must consider the
combined effects of all of the claimant’s impairments, even those that would not be considered severe
in isolation.” Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009); see also Martinez v. Astrue, 630
F.3d 693, 698 (7th Cir. 2011) (“Even if each problem assessed separately were less serious than the
evidence indicates, the combination of them might be disabling.”); Getch v. Astrue, 539 F.3d 473,
483 (7th Cir. 2008) (“[A]n ALJ is required to consider the aggregate effects of a claimant’s
impairments, including impairments that, in isolation, are not severe.”) (citing 20 C.F.R. § 404.1523;
Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003)).
In particular, Plaintiff argues that the ALJ failed to consider her impairments of skin rashes,
COPD, and obesity, and how they interact with her other severe impairments. As to her skin rashes,
Plaintiff argues that even if the disorder is a non-severe impairment, the ALJ was obligated to
consider evidence of the impairment and the work limitations it may impose in fashioning her RFC.
As Plaintiff argues, the ALJ’s opinion does not include any discussion of Plaintiff’s skin rashes
despite their substantial presence in her medical history, nor does he analyze the limiting effect the
rashes may have on Plaintiff’s ability to manipulate and use her hands. See Terry, 580 F.3d at 477
(holding that an ALJ is required to consider all evidence of impairment including those impairments
that “would not be considered severe in isolation.”).
Plaintiff also argues that her COPD significantly impacts her breathing and that the ALJ erred
in not finding that the disorder was a severe impairment. Plaintiff also argues that even if her COPD
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is not itself a severe impairment, the ALJ erred in finding that it was managed with medication andin
failing to incorporate more limitations into her RFC. The ALJ found that Plaintiff’s COPD was a
non-severe impairment because it did not more than minimally interfere with her ability to perform
basic work activity. The ALJ did find that Plaintiff’s COPD combined with her arthritis precluded
heavier lifting and/or carrying and incorporated that limitation into the RFC. However, the ALJ did
not state whether Plaintiff’s COPD was considered in fashioning the environmental limitations.
Specifically, although the RFC limits Plaintiff’s exposure to hazards such as unprotected heights and
dangerous machinery, the ALJ did not find that Plaintiff’s exposure to environmental irritants that
may exacerbate her documented trouble breathing and wheezing–such as exposure to fumes, odors,
dusts, gas, poor ventilation, and extreme cold, extreme hot, wetness, and humidity–needed to be
limited.
On remand, the ALJ is directed to address the combined effects of Plaintiff’s several
impairments, including COPD, in fashioning her RFC.
The ALJ also failed to fully account for the additional limitations caused by Plaintiff’s
obestiy. Plaintiff has a fluctuating body mass index (“BMI”) of 32.15 to32.99. Any BMI of 30 or
greater is considered obese. SSR 02-1p, 2002 WL 34686281, at *2 (Sept. 12, 2002). Social Security
Ruling 02-1p requires an ALJ to consider obesity as an impairment and the exacerbating effects of
a claimant’s obesity on her other conditions when arriving at the RFC assessment. Hernandez v.
Astrue, 277 F. App’x 617, 624 (7th Cir. 2008); see also Gentle v. Barnhart, 430 F.3d 865, 868 (7th
Cir. 2005) (finding that even if obesity is not a severe impairment itself and “merely aggravates a
disability caused by something else[,] it still must be considered for its incremental effect on the
disability”). Ruling 02-1p provides that in evaluating obesity when assessing a plaintiff’s RFC, “[a]n
assessment should also be made of the effect obesity has upon the individual’s ability to perform
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routine movement and necessary physical activity within the work environment.” SSR 02-1p, at *6.
Furthermore, Ruling 02-1p explains that an ALJ’s RFC determination must consider an individual’s
maximum remaining ability to do sustained work activities in an ordinary work setting on a regular
and continuing basis. Id. (citing SSR 96-8p). The requirement that an ALJ thoroughly consider
obesity is particularly critical when, as in this case, the claimant also suffers from arthritis. See
Barrett v. Barnhart, 355 F.3d 1065, 1068 (7th Cir. 2004) (remanding in part for failure to consider
obesity and arthritis in tandem because the plaintiff’s arthritis would naturally “interact with her
obesity to make standing for two hours at a time more painful than it would be for a person who was
either as obese as she or as arthritic as she but not both . . . the cumulative effect of the ALJ’s
decision was to fail to build a rational bridge from the evidence to the finding that [the plaintiff] was
not totally disabled.”). In this case, although the ALJ noted that Plaintiff’s obesity was a severe
impairment, he failed to analyze how the disorder may have exacerbated Plaintiff’s symptoms of joint
stiffness and swelling or her other impairments. The ALJ’s failure to substantively address Plaintiff’s
obesity in combination with her other impairments, especially her arthritis, leaves the Court unable
to trace his RFC findings from the evidence of record. See O’Connor-Spinner, 627 F.3d at 618
(holding that ALJ must provide a “logical bridge” between the evidence and his conclusions.).
This matter is being remanded for a new RFC. On remand, the ALJ is directed to fully
consider each of the Plaintiff’s alleged impairments, including her COPD, skin rashes, and obesity,
alone and in combination, and provide a logical bridge from the evidence to his conclusion, including
a description of the medical evidence on which he bases his determination.
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C.
Credibility Assessment
Plaintiff argues that the ALJ improperly evaluated Plaintiff’s credibility. The Commissioner
argues that the ALJ’s opinion is supported by substantial evidence.
The ALJ must weigh the claimant’s subjective complaints, the relevant objective medical
evidence, and any other evidence of the following factors:
(i) [The claimant’s] daily activities;
(ii) The location, duration, frequency, and intensity of [] pain or other
symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication
...;
(v) Treatment . . . for relief of [] pain or other symptoms;
(vi) Any measures . . . used to relieve your pain or other symptoms .
. . ; and
(vii) Other factors concerning [] functional limitations and restrictions
due to pain or other symptoms.
20 C.F.R. § 404.1529(c)(3).
In making a credibility determination, Social Security Ruling 96-7p states that the ALJ must
consider the record as a whole, including objective medical evidence, the claimant’s statement about
symptoms, any statements or other information provided by treating or examining physicians and
other persons about the conditions and how they affect the claimant, and any other relevant evidence.
SSR 96-7p, 1996 WL 374186 (Jul. 2, 1996). 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 or she
is unable to work. 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 at *6. An ALJ’s credibility determination is entitled to substantial deference by a
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reviewing court and will not be overturned unless the claimant can show that the finding is “patently
wrong.” Prochaska, 454 F.3d at 738.
Plaintiff argues that the ALJ failed to analyze her work history, medical history, daily
activities, and testimony as they relate to her pain, and failed to fully consider the nature of her pain
and effectiveness of her pain medication. The Commissioner argues that the ALJ thoroughly
analyzed all of the relevant factors, and substantial evidence supports his assessment.
In this case, the ALJ found that Plaintiff’s complaints about her pain were not fully credible
for several reasons. First, the ALJ discounted Plaintiff’s reported impairments on the basis of lapses
in her treatment and medication and noncompliance with her medical treatments. When considering
noncompliance with treatment as a factor in determining whether a claimant’s statements regarding
her symptoms are credible, an ALJ is also required make a determination about whether
noncompliance with treatment is justified and develop the record accordingly. See SSR 96-7p at *7;
Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012) (“Although a history of sporadic treatment or
the failure to follow a treatment plan can undermine a claimant's credibility, an ALJ must first explore
the claimant's reasons for the lack of medical care before drawing a negative inference.”); Craft, 539
F.3d at 679 (“[T]he ALJ ‘must not draw any inferences’ about a claimant’s condition from this failure
[to follow a treatment plan] unless the ALJ has explored the claimant’s explanations as to the lack
of medical care.”) (quoting SSR 96-7p).
The record indicates that Plaintiff attends medical appointments several times a year, if not
more frequently, and takes numerous medications as directed. The ALJ does not identify any
indications in the record that Plaintiff failed to seek appropriate treatment or to follow up on
treatment when instructed to do so. Moreover, the ALJ’s statement that Plaintiff reported improved
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symptoms with pain treatment ignores evidence of record showing that “over time, her medications
have been continuously modified for maximum effectiveness” in response to her complaints of pain.
AR 26. If anything, the record supports a finding that Plaintiff’s pain intensity increased and her
treating providers responded with more targeted analgesic treatments rather than that her initial
treatment was sufficient. The ALJ also failed to ask Plaintiff about these perceived gaps in treatment,
a failure that is especially troubling given the indications in the record that show that there was at
least one period during which Plaintiff did not have health insurance. See Craft, 539 F.3d at 679
(“Here, although the ALJ drew a negative inference as to [the plaintiff]’s credibility from his lack of
medical care, she neither questioned him about his lack of treatment or medicine noncompliance
during that period, nor did she note that a number of medical records reflected that [the plaintiff] had
reported an inability to pay for regular treatment and medicine.”).
The ALJ also references Plaintiff’s ability to provide childcare to her grandchildren for pay
as a reason to find her less than credible. However, even assuming that Plaintiff received some
payment for assisting her family as a childcare provider, continuing to work after disability begins
does not necessarily mean that a person is not disabled. As the Seventh Circuit Court of Appeals has
noted, “even persons who are disabled sometimes cope with their impairments and continue working
long after they might have been entitled to benefits.” Shauger v. Astrue, 675 F.3d 690, 697 (7th Cir.
2012); see also Gentle, 430 F.3d at 867 (“A person can be totally disabled for purposes of entitlement
to social security benefits even if, because of an indulgent employer or circumstances of desperation,
he is in fact working.”). Likewise, “[a] desperate person might force h[er]self to work – or . . .
certify that []she is able to work – but that does not necessarily mean []she is not disabled.” Richards
v. Astrue, 370 F. App’x 727, 732 (7th Cir. 2010) (citing Gentle, 430 F.3d at 867; Hawkins v. First
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Union Corp. Long-Term Disability Plan, 326 F.3d 914, 918 (7th Cir. 2003)). Earning income does
not necessarily show that Plaintiff is capable of work or not disabled under the meaning of the Social
Security Act, especially where, as here, it does not appear to have been a full time job and was done
to help Plaintiff’s family.
Moreover, an ALJ is not free to “casual[ly] equat[e] household work to work in the labor
market.” Zurawski, 245 F.3d at 887. To the extent that the ALJ was using Plaintiff’s ability to
perform some activities of daily living or occasionally provide childcare for her grandchildren in her
home as indicating an ability to perform full-time work, the Seventh Circuit has repeatedly
emphasized that a person’s ability to perform daily activities does not indicate an ability to work
outside of the home. See, e.g., Moss v. Astrue, 555 F.3d 556, 562. The ALJ is also reminded that the
Seventh Circuit Court of Appeals has repeatedly found that there are “critical differences between
activities of daily living and activities in a full-time job” and “[t]he failure to recognize these
differences is a recurrent, and deplorable, 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 Mendez v.
Barnhart, 439 F.3d 360, 362 (7th Cir. 2006) (“We have cautioned the Social Security Administration
against placing undue weight on a claimant’s household activities in assessing the claimant’s ability
to hold a job outside the home . . . The pressures, the nature of the work, flexibility in the use of time,
and other aspects of the working environment . . . often differ dramatically between home and office
or factory or other place of paid work.”).
The ALJ made several errors in his assessment of Plaintiff’s credibility, and a remand is
warranted. On remand, the ALJ is directed to thoroughly explain his credibility assessment in
accordance with the applicable regulations.
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D.
Relief
Plaintiff requests that the Court reverse the Commissioner’s decision and remand for an award
of benefits. However, an award of benefits is not proper when there remain outstanding factual issues,
Briscoe, 425 F.3d at 356, and the record does not yet support a finding that Plaintiff is disabled.
Allord v. Asture, 631 F.3d 411, 417 (7th Cir. 2011). In this case, that the ALJ failed to properly weigh
the evidence of whether Plaintiff satisfies the requirement of Listing 14.09 does not support a finding
by this Court that the evidence demonstrates Plaintiff’s disability under the Social Security Act. See
Clifford, 227 F.3d at 869 (reasoning that a court in its review of the entire administrative record does
not reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute its judgment
for that of SSA). On remand, the ALJ must review the record and fully explain how all of Plaintiff’s
limitations are accounted for, supported by evidence, and incorporated by into her RFC. Because the
ALJ has not properly weighed all the relevant evidence, this can only be resolved through a remand
for further proceedings.
CONCLUSION
For the foregoing reasons, the Court hereby GRANTS the relief requested in Plaintiff’s
Memorandum in Support of Summary Judgment or Remand [DE 16], and REMANDS this matter
for further proceedings consistent with this opinion.
SO ORDERED this 29th day of March, 2016.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:
All counsel of record
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