Meade v. Commissioner

Filing 16

OPINION AND ORDER REVERSING Commissioner of Social Security's final decision and REMANDING case for proceedings consistent with this opinion pursuant to sentence four of 42 USC section 405(g). Signed by Judge Rudy Lozano on 9/30/2013. (tlr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DARLENE KAY MEADE,
Plaintiff,
vs.
CAROLYN W. COLVIN1,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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No. 3:12-CV-245

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, Darlene Kay Meade.

For the reasons set forth below,

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

BACKGROUND
On July 1 2010, plaintiff Darlene K. Meade (“Meade” or
“claimant”) filed an application for Social Security Disability
Benefits (“DIB”) under Title II of the Social Security Act, 42
U.S.C. section 401 et seq. Meade alleged that her disability began
1

On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of
Social Security. Pursuant to Federal Rule of Civil Procedure 25, Carolyn W.
Colvin is automatically substituted as the Defendant in this suit.

on July 7, 2009, due to arthritis, fibromyalgia, depression, and
anxiety.

The Social Security Administration denied her initial

application and also denied her claim on reconsideration.

On

November 30, 2011, Meade appeared, represented by counsel, at an
administration hearing before Administrative Law Judge (“ALJ”)
Henry Kramzyk.

Testimony was provided by Meade and Leonard M.

Fisher, a vocational expert (“VE”).

On December 13, 2011, ALJ

Kramzyk issued a decision denying Meade’s claims, finding her not
disabled because she does not have a listing-level impairment or
combination of impairments and she retains the functional capacity
to perform her past relevant work and a significant number of other
jobs despite her functional limitations.
Meade requested that the Appeals Council review the ALJ’s
decision, but the request was denied.

Accordingly, the ALJ’s

decision became the Commissioner’s final decision.
§ 422.210(a).

See 20 C.F.R.

Meade has initiated the instant action for judicial

review of the Commissioner’s final decision pursuant to 42 U.S.C.
section 405(g).

DISCUSSION
Facts
Meade, who was born on December 7, 1956, has a high school
diploma and attended about two years of college classes that were
focused on accounting and bookkeeping, but she did not earn a

2

college degree.

(Tr. 37.)

Her past relevant work includes

bookkeeping, accounting, and payroll.

(Tr. 37-40.)

However, she

has not worked since July 7, 2009, when she lost her job due to
attendance problems and making too many mistakes.

(Tr. 38.)

Medical Evidence
In December of 1998, Meade saw rheumatologist Dr. Disa Sacks
for a thorough work up.

(Tr. 219.)

Meade reported having

depression for the last six to seven years, difficulty sleeping,
and pain.

(Tr. 220.)

Dr. Sacks found tender points in Meade’s

upper trapezius muscles and marked tenderness over the SI joint and
greater trochanteric area that caused her to “jump off the table.”
(Id.)

Dr.

Sacks

opined

that

Meade’s

symptoms

corresponded

“perfectly” to fibromyalgia, after finding trigger points and
ruling out other possible diseases.

(Tr. 219.)

Meade was advised

by Dr. Sacks to quit smoking and begin a fitness program.

(Id.)

She was also prescribed Elavil to help with her sleep issues.
(Id.)
During a follow up visit in May of 1999, Dr. Sacks reported
that Meade was “still having some symptomatology but [was] much
improved.”

(Tr. 221.)

Dr. Sacks noted that Meade was “not having

the severe achiness that she was” yet there were times when she
still hurt.

Meade was working full time, going to school, and

singing in a band, yet Dr. Sacks advised her of the importance of

3

exercising in spite of her time limitations because it “works” for
fibromyalgia patients.

(Id.)

In October of 1999, Meade visited Dr. Sacks again. (Tr. 222.)
Dr. Sacks noted that Meade had fibromyalgia and was taking Elavil,
Restoril, and Prozac.

(Id.)

Dr. Sacks indicated that Meade had

“not had an increase in the amount of pain” but was unhappy in her
marriage, sleeping to avoid her husband, and not exercising. (Id.)
Dr. Sacks renewed Meade’s medications.

(Id.)

In October of 2000, an MRI showed mild degenerative changes in
Meade’s lower back, which left the reviewing physician with an
impression of mild generalized lumbar spondylosis.

(Tr. 218.)

There are no medical records available from October of 2000 to
April of 2007.
In April of 2007, Meade’s family physician, Dr. Armando
Martinez,2 requested that Meade receive an x-ray from the Neuro
Imaging

Institutes.

(Tr.

241.)

This

x-ray

showed

mild

degenerative changes of the mid thoracic spine. (Id.) At a follow
up

visit

in

May

of

2007,

Dr.

Martinez

diagnosed

Meade

with

depression and degenerative joint disease of the spine. (Tr. 248.)
She was prescribed Effexor and Lipitor.

(Id.)

In June of 2007,

Dr. Martinez added Lortab to Meade’s medications. (Id.)
continued
throughout

to

receive

2007,

2008,

treatment
and

2009,

2

from
but

Dr.
many

Martinez
of

his

Meade

regularly
notes

are

Both parties note that Dr. Martinez was a poor record keeper whose
notes are largely illegible. After review of the record, the Court agrees.

4

illegible.

(See generally Tr. 229-308.)

On October 20, 2008, it

is clear that Meade was prescribed Lyrica by Dr. Martinez.
304.)

(Tr.

At her July 22, 2009, appointment, Dr. Martinez noted that

Meade was “doing well” and that she had started taking Effexor.
(Tr. 299.)

On August 10, 2009, Dr. Martinez placed Meade on

Vicoprofen and Ativan.

(Id.)

On November 5, 2009, Dr. Martinez

reported that Meade had requested Chantix (for smoking cessation)
and pain medication.

(Tr. 297.)

In December of 2009, a CT scan of Meade’s cervical spine
showed degenerative disc disease with spondylitic changes at C5-C6,
a thoracic CT scan showed a lesion of the thyroid gland that left
an impression of “probably thyroid adenoma,” and a CT scan of
Meade’s lumbar spine was normal.

(Tr. 223-225.)

At a follow up appointment on January 6, 2010, Dr. Martinez
made note of Meade’s possible depression.

(Tr. 296.)

In May of

that same year, Dr. Martinez, who had been treating Meade since
1995, listed Meade’s past medical history of rheumatoid arthritis,
bowel irregularities, bronchitis, chest pain, chronic rashes,
depression, and anxiety, among others. (Tr. 292-93.) Dr. Martinez
also noted problems of bone spurs on her cervical spine, lumbar
joint pain, polyarthralgias, polyarthropathy, possible hepatitis B,
and fibromyalgia.

(Tr. 293.)

Meade’s medications were listed as

Vicoprofen, Ativan, Ambien, and Pristiq.

(Id.)

In July of 2010, a state agency reviewing psychologist, Dr.

5

William Shipley, reviewed Meade’s records and concluded that her
claimed mental impairments of depression and anxiety were present
but not severe.

(Tr. 309, 312, 314.)

Dr. Shipley further

concluded that Meade had mild restrictions of activities of daily
living, mild difficulties in maintaining social function, and mild
difficulties in maintaining concentration, persistence, or pace.
(Tr. 319.)

He did not find any episodes of decompensation of

extended duration.

(Id.)

Dr. Shipley did note, however, that

coexisting nonmental impairments existed that required referral to
another medical specialty.

(Tr. 309.)

After moving to Indiana to live with her sister, Meade began
treating with Dr. Cynthia Pascual.

(Tr. 357.)

At her first visit

on July 29, 2010, Meade told Dr. Pascual that she had lost her job,
gotten divorced, and lost her medical insurance; she then described
her history of arthritis, fibromyalgia, depression, and anxiety.
(Id.)

She complained of fatigue, weakness, malaise, weight loss,

sleeping

issues,

palpitations,

loss

racing/skipping
of

appetite,

heart

joint

beats,

swelling,

fatigue,
back

stiffness, muscle weakness, arthritis, and loss of strength.
359.)

pain,
(Tr.

Meade also described problems with rashes, difficulty

concentrating, poor balance and coordination, tremors, anxiety,
mental problems, depression, and nervousness.

(Tr. 360.)

As far as medications were concerned, Dr. Pascual noted that
Meade had been on Cymbalta in the past for her fibromyalgia and

6

depression but that it had become too expensive for her to afford.
(Tr. 357.)

Meade also advised Dr. Pascual that she had been on

Lyrica in the past but that it made her dizzy so she had to stop
taking it.

(Id.)

Dr. Pascual noted that Meade was taking Pristiq

for her depression, which seemed to be helping, and Vicoprofen for
her arthritis.

(Id.)

Dr. Pascual was worried about Meade’s

dependency on Ativan, and she informed Meade that she needed to see
a psychiatrist to properly manage and prescribe medication for her
psychological issues once she was able to obtain health insurance.
(Tr. 357, 362.)
During a physical exam, Dr. Pascual found multiple trigger
points and noted that Meade was “positive for fibromyalgia trigger
[points].”

(Tr. 361.)

She also found that Meade had a full range

of motion of all joints.
examination,

Dr.

(Id.)

Pascual

At the conclusion of this initial

came

away

with

impressions

of

fibromyalgia, generalized arthritis, and depression. (Tr. 361-62.)
Dr. Pascual placed Meade on Vicoprofen, Cymbalta, Ambien, and
Ativan, and she considered both placing her on Lyrica for chronic
pain control and referring her to a pain management specialist once
insurance was available to Meade.

(Id.)

At Meade’s next appointment with Dr. Pascual in August of
2010, Meade reported that the Cymbalta had been helping with her
fibromyalgia and depression but not her arthritic pain. (Tr. 364.)
Meade brought her prior lab results with her to this visit, which

7

Dr. Pascual reviewed and noted a positive finding of rheumatoid
arthritis.3

(Tr. 364.)

During the physical examination portion of

the visit, Dr. Pascual found no edema in her extremities and a full
range of motion of all joints.

(Tr. 365.)

Dr. Pascual determined

that Meade’s generalized arthritis remained unchanged, while her
fibromyalgia and depression were improved.

(Tr. 365-66.)

She was

prescribed Vicodin and a higher dose of Cymbalta, and she was
instructed to continue taking Ativan and Ambien.

(Tr. 366.)

In September of 2010, consulting physician, Dr. Wa’el Bakdash,
examined Meade and reported impressions of fibromyalgia, insomnia,
depression, anxiety, arthargia/pain in several joints with no
restriction of joint movement, and nicotine addiction.

(Tr. 325.)

Dr. Bakdash opined that Meade was “able to grasp, lift, carry,
manipulate objects in both hands and perform repeated movements
with both feet.”

(Id.)

He further found that she was “able to

bend over without any restriction and squat normally . . . sit,
stand and walk normally.”

(Id.)

On October 5, 2010, state agency reviewing physician, Dr. J.
Sands, concluded that any impairment Meade had was not severe
because Meade had “normal gait and station, [could] get on/off
[the] exam table without difficulty, [was] able to stand on heels
and toes, [her] spine [was] not tender, [and her] joints [were] not
swollen.”

(Tr. 327.)

3

Meade’s RA was 14.3, while a normal finding is 13.9; in 2006,
however, she had a normal SED rate and a negative ANA. (Tr. 364.)

8

Meade then saw Dr. Pascual for a follow-up visit on October
21, 2010.

(Tr. 368.)

Dr. Pascual found that while Cymbalta had

initially seemed to help Meade’s fibromyalgia, its effectiveness
had leveled off and Meade had resorted to taking three Vicodin per
day for pain and that Ambien was no longer helping her sleep.
369.)

She

specifically

found

that

Meade’s

(Tr.

fibromyalgia

had

deteriorated, and she prescribed Flexeril which would be switched
to Amrix if the pain improved.

(Tr. 371.)

With regard to Meade’s depression, Dr. Pascual referred her to
a

behavioral

health

specialist

“for

disability

purposes,”

to

undergo a psychiatric examination, and to deal with her medication
issues; Dr. Pascual also discussed the treatment options with Meade
and suggested a trial of antidepressants. (Id.) Meade was advised
to follow up in two weeks and to call immediately if she had
worsening symptoms or suicidal ideation.

(Id.)

On November 22, 2010, state agency reviewing psychologist, Dr.
Joseph A. Pressner, affirmed Dr. Shipley’s July 2010 assessment of
Meade’s records. (Tr. 344.) Similarly, on December 3, 2010, state
agency reviewing physician, Dr. J.V. Corcoran, affirmed Dr. Sands’
October 2010 assessment of Meade’s records.

(Tr.

345.)

On December 9, 2010, pursuant to Dr. Pascual’s referral, Dr.
John Haskin examined Meade and diagnosed her with major depression,
obsessive-compulsive disorder, and panic disorder with agoraphobia.
(Tr. 346, 349).

He arrived at this conclusion after noting that

9

Meade had suffered anxiety and depression for several years, had
recently sustained several losses related to her job and home, and
had moved in with her sister because she was having “difficulty
with functioning” and had to be reminded to take a bath or wash her
hair.

(Tr. 346, 348.)

He noted that while she was “fairly anxious

and at times teared up” during the examination, she denied suicidal
and homicidal ideations, was alert, oriented, and cooperative, had
logical and coherent speech with goal directed thought processes,
had intact memory, good concentration, insight and judgment, and
possessed average intelligence.

(Tr. 349.)

Dr. Haskin gave Meade

a Global Assessment of Functioning (“GAF”) Score of 41 and 45 at
different points of his initial report.4
Haskin

increased

Meade’s

dosage

of

(Tr. 346, 349.)
Cymbalta,

gave

Dr.

her

a

prescription for Ativan, and encouraged her to try singing at an
open mike event as a form of therapy to “be able to use that
creative aspect of her being.”5

(Tr. 349.)

In February of 2011, Dr. Haskin reported that Meade was “doing
much better” and gave her a GAF score of 50.6

(Tr. 401-02.)

Dr.

Haskin’s most recent report in May of 2011 stated that Meade was
4

GAF is a scoring system for measuring an individual’s overall
functional capacity. A GAF of 41 or 45 would include serious symptoms of
suicidal ideation, severe obsessional rituals, frequent shoplifting, or any
serious impairment in social, occupational, or school functioning.
5

Dr. Haskin noted that Meade previously sang with a band but had to
quit after her son was born and she went back to college, became an
accountant, and started dealing with fibromyalgia and anxiety issues. (Tr.
349.)
6
A GAF score of 50 remains the same as far as symptoms are concerned.

10

“doing OK” and he gave her a GAF score of 55.7

(Tr. 398.)

In January of 2011, Meade again visited Dr. Pascual who found
her fibromyalgia and arthritis unchanged.

(Tr. 378-80.)

Dr.

Pascual authored a letter to Meade’s counsel stating that her
condition had deteriorated over the last year because she could not
afford insurance to pay for the best medication.

(Tr. 351.)

Dr.

Pascual also stated that she “believe[s] that Darlene can not
return to the workforce in the long term.”

(Tr. 351.)

Meade’s Hearing Testimony
At the administrative hearing held on November 30, 2011, Meade
stated that she was not married and lived alone in apartment on the
second

floor

of

her

apartment

building.

(Tr.

35-36.)

She

graduated from high school and took about two years of college
classes that were focused on accounting and bookkeeping. (Tr. 37.)
Meade testified that she has not worked since July 7, 2009, the
same month that she filed for disability.

(Tr. 38.)

She stated,

however, that her disability began before her termination.

(Id.)

Meade stated that she was fired because her work was not adequate,
she made too many mistakes, and her attendance “wasn’t very good.”
(Id.)
After being fired, Meade applied for unemployment benefits

7

A GAF score of 55 includes moderate symptoms of flat affect and
circumstantial speech, occasional panic attacks, or moderate difficulty in
social, occupational, or school functioning.

11

and, as of the hearing, was still receiving them; Meade did note,
however, that those benefits were “running out.”

(Tr. 38.)

When

asked by the ALJ whether she had been actively seeking work since
she began receiving the unemployment benefits, Meade responded that
she had.

(Tr. 38-39.)

Meade testified that she “deals with mental health” conditions
and is seeing a psychiatrist.

(Tr. 48.)

She said she has

fibromyalgia that was confirmed by a rheumatologist and includes
anxiety, panic attacks, depression and insomnia. (Tr. 48-49.) She
reported having spurs all the way down her spine and that her
muscles all have nerve damage.

(Tr. 48.)

She also stated that she

has bone spurs in her feet, along with general fatigue, poor memory
and poor concentration. (Tr. 49.) She described her pain as “when
it’s at it’s fullest, it’s always there, but with the medication it
calms it, it feels like my back’s on fire, and I’m being stabbed
back there.”

(Tr. 50.)

Meade further added that the pain occurs

in her “[n]eck and shoulders, several places on my back, right
above my knees, my hips really bad, the end of my spine, my arms,
my legs, I get headaches.”

(Tr. 50.)

She stated that she can lift

or carry ten pounds and can walk a block before she has to stop.
(Tr. 52.)

She believes she can stand for fifteen minutes and that

sitting hurts, but she could sit for about thirty minutes.
52-53.)

(Tr.

She stated that she can do laundry, vacuum, and dust once

in a while.

(Tr. 53-54.)

She stated that she cooks very little

12

and has to force herself to eat and does not often do dishes.
54.)

(Tr.

When asked whether she can take care of her personal needs

such as bathing and dressing without assistance, Meade responded
yes but stated that it could sometimes be over a month before she
would force herself to bathe again or wash her hair.

(Tr. 55.)

She stated that she hates to shop but will do it when necessary.
(Id.)

Meade acknowledged that she takes care of her cat and that

she is able to drive most of the time.

(Tr. 56-57.)

Vocational Expert’s Hearing Testimony
At

the

hearing,

the

ALJ

asked

the

VE

the

following

hypothetical question:
Q:
Assume a hypothetical claimant of the
same age, education, and work experience as
the claimant who has the ability to lift,
carry, push, pull up to 50 pounds occasionally
and 20 pounds frequently. Sit for a total of
up to six hours a day. Stand and/or walk for
a total of up to six hours a day.
This
individual could never climb ladders, ropes,
or scaffolds. Do you have an opinion whether
she could perform any of the occupations in
her past relevant work?
A:

Yes.

Q:

And?

A:
She couldn’t perform her occupations as
accountant, bookkeeper as she performed them,
but she could perform them as they’re
generally performed in the national economy.
(Tr. 68.)

The ALJ then asked if there is other work in the economy

that Meade could perform.

(Tr. 69.)
13

The VE answered yes, and said

Meade could be an addresser, charge account clerk, hand mounter,
office helper, cashier, inspector, and school crossing guard. (Tr.
69-70.)
The ALJ posed a second hypothetical question to the VE that
assumed Meade’s background but was limited to a reduced range of
light work, including being able to “lift, carry, push, pull 20
pounds occasionally and 10 pounds frequently.”

(Tr. 70.)

The

hypothetical individual could also sit and stand and/or walk for a
total of up to six hours a day.
those

changes

would

not

(Tr. 70.)

prevent

Meade

The VE answered that
from

performing

the

aforementioned jobs, or her past relevant work, at the light level.
(Tr. 70-71.)
In the third hypothetical question the ALJ instructed the VE
to assume the same limitations as hypothetical question two:
except that the hypothetical individual would
be able to sustain concentration and attention
for two-hour periods at a time and for eight
hours in the work day on short, simple,
repetitive instructions, could use judgment in
making work decisions related to short,
simple, repetitive instructions.
And would
require an occupation with set routine and
procedures, and a few changes during the work
day.
(Tr. 71.)

The VE responded by stating Meade could not perform her

past relevant work but that she could perform the light jobs he

14

provided

in

the

SVP:8

2

category

(office

inspector, and school crossing guard).

helper,

cashier,

(Tr. 69-72.)

Meade’s attorney then asked the VE to assume an individual
with the same age, education, and prior work experience as the
claimant, and limited to lifting no more than 10 pounds, unable to
concentrate for more than 30 minutes at a time, stand for no more
than 30 minutes at a time, and would be off task 20 percent of the
day.

(Tr. 72.)

The VE responded that the individual would not be

able to perform her past relevant employment and would not be able
to perform any other jobs, “[n]ot with those limitations and
restrictions.”

(Tr. 72.)

Review of the Commissioner’s Decision
This Court has authority to review the Commissioner’s decision
to deny social security benefits.

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.
Substantial evidence is defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a decision.”
Richardson v. Perales, 402 U.S. 389, 401 (1971).

In determining

whether substantial evidence exists, the Court shall examine the
record in its entirety, but shall not substitute its own opinion
8

The DOT defines SPV as “the amount of lapsed time required by a
typical worker to learn the techniques, acquire the information, and develop
the facility needed for average performance in a specific job-worker
situation.” Dictionary of Occupational Titles, Appendix C, page 1009 (4th
Ed., Rev. 1991).

15

for the ALJ’s by reconsidering the facts or re-weighing evidence.
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

findings.

the

volume

of

evidence

in

support

of

the

factual

White v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999).

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.

To qualify as being disabled, the claimant

must be unable “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 twelve
months.”

42 U.S.C. §§ 423(d)(1)(A).

To determine whether a

claimant has satisfied this statutory definition, the ALJ performs
a five step evaluation:
Step 1:

Is the claimant performing substantial 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
impairments “severe” and expected to last
least twelve months?
If not, the claim
disallowed; if yes, the inquiry proceeds
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
16

of
at
is
to

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.

Step 5:

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.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v) and 416.920(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 Meade suffers from the
following severe impairments: fibromyalgia and degenerative changes
of the cervical, thoracic and lumbar spine.

(Tr. 14.)

The ALJ

specifically found that Meade’s reported irritable bowel syndrome,
arthritis, depression, and anxiety did not qualify as severe
impairments and resulted in only minimal functional limitations.
(Tr. 14-16.)
The ALJ further found that Meade does not have an impairment
or combination of impairments that meets or medically equals one of
the listed impairments in 20 C.F.R. Part 404, subpart P, Appendix
1 (20 C.F.R. 404.1520(d), 404.1525 and 404.1526).

(Tr. 17.)

The

ALJ then determined that Meade has the residual functional capacity
(“RFC”) to lift and/or carry, and push and/or pull up to 20 pounds
occasionally and 10 pounds frequently; stand and/or walk up to 6
hours in an 8 hour day; and sit up to 6 hours in an 8 hour day; all
without climbing ladders, ropes or scaffolds.
17

(Tr. 18.)

Based

upon this RFC assessment, the ALJ found that Meade is capable of
performing her past relevant work as a bookkeeper and accountant as
they are generally performed in the national economy.

(Tr. 22.)

Meade believes that the ALJ committed several errors requiring
reversal.

Credibility Determination
Although not given its own section, Meade makes several
arguments related to the ALJ’s credibility determination throughout
her

brief.

claimant’s

Because

the

truthfulness,

ALJ
this

is

best

Court

positioned

will

to

overturn

judge
an

a

ALJ’s

credibility determination only if it is patently wrong. Skarbek v.
Barnhart, 390 F.3d 500, 504 (7th Cir. 2004).

However, when a

claimant produces medical evidence of an underlying impairment, the
ALJ may not ignore subjective complaints solely because they are
unsupported by objective evidence.
737, 745-47 (7th Cir. 2005).

Schmidt v. Barnhart, 395 F.3d

Instead, 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.

Lopez v. Barnhart, 336 F.3d 535,

539-40 (7th Cir. 2003)(emphasis added).
In evaluating the credibility of statements supporting a
Social Security Application, the Seventh Circuit Court of Appeals

18

has noted that an ALJ must comply with the requirements of Social
Security Ruling 96-7p.
Cir. 2002).

Steele v. Barnhart, 290 F.3d 936, 942 (7th

This ruling requires that ALJs 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.”

SSR 96-7p.

Furthermore, the ALJ must consider specific factors when assessing
the credibility of an individual’s 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 medications the individual takes
or has taken to alleviate pain or other
symptoms;

5.

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

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 also Golembiewski v. Barnhart, 322 F.3d 912, 915-16
(7th Cir. 2003).
In her opening argument, Meade points out that, when finding

19

her not credible, the ALJ relied on “boilerplate” language that has
been criticized by the Court of Appeals for the Seventh Circuit.
See Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012); Bjornson
v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012).

In this case, the

ALJ stated the following regarding Meade’s credibility:
After careful consideration of the evidence,
the undersigned finds that the claimant’s
medically
determinable
impairments
could
reasonably be expected to cause some of the
alleged symptoms; however, the claimant’s
statements
concerning
the
intensity,
persistence and limiting effects of these
symptoms are not fully credible to the extent
they are inconsistent with the above residual
functional capacity assessment.
(Tr. 21.)

In Bjornson, the Seventh Circuit noted:
One problem with the boilerplate is that the
assessment
of
the
claimant’s
“residual
functional capacity” (the bureaucratic term
for ability to work) comes later in the
administrative law judge’s opinion, not
“above” - above is just the foreshadowed
conclusion of that later assessment. A deeper
problem is that the assessment of a claimant’s
ability to work will often . . . depend
heavily on the credibility of her statements
concerning the “intensity, persistence and
limiting effects” of her symptoms, but the
passage implies that ability to work is
determined first and is then used to determine
the claimant’s credibility. That gets things
backwards.

Id. at 645.

Yet, as noted by the Court in Adams v. Astrue,

While this sort of boilerplate is inadequate,
by itself, to support a credibility finding,
its use, does not make a credibility
determination invalid.
Not supporting a
credibility determination with explanation and
evidence from the record does.
20

Adams v. Astrue, 880 F.Supp.2d 895, 906 (N.D. Ill. 2012) (emphasis
in original) (citations omitted). In Adams, the ALJ’s decision did
not use the boilerplate language in a mechanical fashion, and the
ALJ offered further explanation to support his conclusion that
plaintiff’s claimed limitations were not supported by the record as
a whole.

Accordingly, the court determined that reversal was not

warranted.
Here, the ALJ’s opinion at least touches on the factors as set
forth in SSR 96-7p.
considered

her

He lists a few of Meade’s daily activities, he

testimony

regarding

the

location,

duration,

frequency and intensity of pain, he points out that Meade testified
that her pain is made worse by trying to do “anything,” he
describes the treatment she received and the medications she takes,
and

he

refers

to

Meade’s

testimony

regarding

functional limitations due to pain.

(Tr. 20.)

very

of

little

(if

any)

explanation

what

it

her

perceived

However, there is
is

about

these

considerations that caused the ALJ to believe Meade was less than
fully credible.
For example, when discussing Meade’s activities of daily
living, the ALJ simply points out that Meade testified she lives
alone with her cat, is capable of performing “basic household
chores,” and can independently care for her personal needs; he also
states that she has a license and is able to drive.

(Tr. 20.)

The

ALJ does not further describe these activities or expand upon what
21

it is about them that makes Meade’s credibility suspect.

The

Seventh Circuit has made it clear that “an ALJ may not rely on
minimal daily activities as substantial evidence that the claimant
does not suffer disabling pain.”
872 (7th Cir. 2000).

Clifford v. Apfel, 227 F.3d 863,

Furthermore, although he classifies Meade’s

testimony as that which shows she can independently care for her
personal needs, he does not acknowledge that Meade testified that
“sometimes it’ll be a month before I’ll bathe again or wash my hair
or whatever and get in the tub.
around myself or whatever.”

I’ve – until I can’t stand to be
(Tr. 55.)

Neither does the ALJ

acknowledge Meade’s testimony that she cooks very little, does few
dishes, and only occasionally goes shopping when necessary.
54-55.)

(Tr.

The Seventh Circuit has consistently warned that an ALJ

cannot “disregard a claimant’s limitations in performing household
activities.”

Moss v. Astrue, 555 F.3d 556, 562 (7th Cir. 2009);

see also Craft, 539 F.3d at 680.

Without further explanation from

the ALJ, the disconnect is difficult for this reviewing Court to
reconcile;

the

factors

were

addressed

by

the

ALJ

in

only

a

mechanical fashion.
The ALJ does point out that Meade was fired from her job in
2009 and has been collecting unemployment benefits since that time
while reporting to the Social Security Administration that she is
unable to work.

(Tr. 19-20.)

The ALJ takes issue with this,

stating:

22

But, by collecting unemployment benefits, the
claimant affirmed having looked for work, each
week, and that if work was found, she would be
ready, willing and able to accept it.
Basically, the claimant’s unemployment claim
is tantamount to saying ‘I am able to work’
while her disability claim is stating ‘I am
not able to work.’ Both statements are made
under the penalty of perjury.
These
conflicting statements were evaluated when the
undersigned
assessed
the
claimant’s
credibility.
(Tr. 20.) However, the Seventh Circuit has cautioned against using
a “claimant’s decision to apply for unemployment benefits and
represent to state authorities and prospective employers that he is
able and willing to work” as the main reason to disregard a
claimant’s

subjective

complaints

of

disability.

Schmidt

v.

Barnhart, 395 F.3d 737, 746 (7th Cir. 2005); see also Wilder v.
Apfel, 153 F.3d 799, 801 (7th Cir. 1998) (holding that “employment
is not proof positive of ability to work.”)

The ALJ did not

question Meade in any detail regarding her receipt of benefits,
despite evidence in the record of great financial hardship.
The ALJ also points out that the record does not contain any
records from Dr. Sacks, the physician who first diagnosed Meade
with fibromyalgia, or any other rheumatologist since October 1999.
(Tr. 18.) Additionally, the ALJ goes on to state that, while Meade
testified that she continues to have severe pain in her back due to
spurs,

the

degenerative

changes

addressed by an orthopedist.

to

her

(Tr. 19.)

spine

have

not

been

The ALJ also notes that

Dr. Pascual’s treatment recommendations were “conservative.”
23

(Id.)

However, where there is a lack of treatment, the ALJ must

also consider the reason for the lack of treatment.

See Brown v.

Barnhart, 298 F.Supp.2d 773, 797 (7th Cir. 2004).

In Brown the

Seventh Circuit Court of Appeals noted that:
The adjudicator must not draw any inferences
about an individual’s symptoms and their
functional effects from a failure to seek or
pursue regular medical treatment without first
considering
any
explanations
that
the
individual may provide, or other information
in the case record, that may explain
infrequent or irregular medical visits or
failure to seek medical treatment. The
adjudicator
may
need
to
recontact
the
individual or question the individual at the
administrative
proceeding
in
order
to
determine whether there are good reasons the
individual does not seek medical treatment or
does not pursue treatment in a consistent
manner.
Id.

Here, the ALJ did not attempt to consider any reasons for a

lack of specialized treatment.

The record suggests that financial

difficulties may have played a part in Meade’s lack of recent
treatment, yet the ALJ makes no reference to the indications in the
record that financial problems were at least part of the reason for
a lack of treatment.

It is impossible for this Court to know if

considering this reason would have caused the ALJ to reach a
different decision on credibility, and if so, whether that would
have ultimately affected his decision in this case.
The

ALJ

states

that

the

objective

medical

evidence

was

persuasive in determining that Meade’s allegations were not as
severe as alleged.

(Tr. 18.)

In doing so, he first points out
24

that Meade lost her job in July of 2009 because of her disability,
yet

the

progress

notes

from

Dr.

Martinez,

Meade’s

treating

physician, indicate she was “doing well” and that there were no
documented limitations from fibromyalgia.

(Tr. 19.)

The ALJ does

not acknowledge, however, that Dr. Martinez’ notes are largely
illegible and that he continued to place Meade on additional
medications such as Vicoprofen and Ativan following that July
appointment.

Without additional analysis by the ALJ, it is

difficult for the Court to determine whether one note of “doing
well” in a physician’s file can support a finding that Meade’s
claims were not credible.

Similarly, the ALJ points out that in

late 2010 and twice in 2011, Dr. Pascual commented that Cymbalta
was “helping with the fibromyalgia,” yet he does not acknowledge
that Dr. Pascual also found, for example, that while Cymbalta had
initially seemed to help Meade’s fibromyalgia, its effectiveness
had leveled off and Meade had resorted to taking additional Vicodin
per day for pain and that Ambien was no longer helping her sleep.
(Tr. 369.)

While an ALJ need not discuss every piece of evidence

in the record, Villano v. Astrue, 556 F.3d 558, 562 (7th Cir.
2009),

he

conclusion.

cannot

ignore

evidence

that

conflicts

with

his

Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 354

(7th Cir. 2005). Finally, and perhaps more troubling, are the ALJ’s
repeated references to the fact that Meade had full range of motion
in all joints and that her joints were not swollen.

25

(Tr. 19.)

The

ALJ points this out several times in context with the severity of
Meade’s fibromyalgia, both when discussing Dr. Pascual’s records
and also when referring to Dr. Bakdash’s consultative examination.
(Id.) However, “[s]ince swelling of the joints is not a symptom of
fibromyalgia, its absence is no more indicative that the patient’s
fibromyalgia is not disabling than the absence of headache is an
indication that a patient’s prostate cancer is not advanced.”
Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996); see also Kurth
v. Astrue, 568 F.Supp.2d 1020, 1030 (W.D.Wis. 2008) (citing Sarchet
and noting that “the reliance on ‘the lack of any evidence of
objectively discernible symptoms, such as swelling of the joints,’
reflects a ‘pervasive misunderstanding of the disease.’”)
The overarching problem is that this Court, in reviewing the
opinion, cannot discern the reason (other than the paragraph
regarding

receipt

of

unemployment

benefits)

Meade’s testimony was less than fully credible.

the

ALJ

believed

The opinion lacks

the logical bridge that the ALJ is required to build.

Here, the

ALJ did not make the necessary connections between the facts and
his credibility determination.

See Villano v. Astrue, 556 F.3d

558, 562 (7th Cir. 2009) (where an ALJ failed to analyze the
factors set forth in SSR 96-7p, the ALJ did not build a logical
bridge between the evidence and his conclusion that the claimant’s
testimony was not credible).

Because the ALJ failed to build a

logical bridge between the evidence and his determination that the

26

claimant’s testimony was not credible, remand is required.

Weight Given to Dr. Pascual’s Opinion
Meade argues that the ALJ improperly dismissed the opinion of
her treating physician, Dr. Pascual.

A treating physician’s

medical opinion must be given controlling weight if it is “well
supported” and not inconsistent with other substantial evidence in
the record.

20 C.F.R. § 404.1527(c); see Punzio v. Astrue, 630

F.3d 704, 710 (7th Cir. 2011).

An ALJ must offer “good reasons”

for discounting the opinion of a treating physician.

Martinez v.

Astrue, 630 F.3d 693, 698 (7th Cir. 2011); Campbell v. Astrue, 627
F.3d 299, 306 (7th Cir. 2010).

Furthermore, SSR 96-2p requires

that the ALJ’s “decision must contain specific reasons for the
weight given to the treating source’s medical opinion, supported by
the evidence in the case record, and must be sufficiently specific
to

make

clear

to

any

subsequent

reviewers

the

weight

the

adjudicator gave to the treating source’s medical opinion and the
reasons for that weight.”

SSR 96-2p.

If the treating physician’s opinion is not well supported or
is inconsistent with other substantial evidence, the ALJ must apply
the following factors to determine the proper weight to give the
opinion:
(1) the length of the treatment relationship and
frequency of examination;
(2)

the

nature

and

extent
27

of

the

treatment

relationship;
(3) how much supporting evidence is provided;
(4) the consistency between the opinion and the
record as a whole;
(5) whether the treating physician is a specialist;
(6) any other factors brought to the attention of
the Commissioner.
20 C.F.R. §§ 404.1527(c) and 416.927(a)-(d); see Moss v. Astrue,
555 F.3d 556, 561 (7th Cir. 2009); Bauer v. Astrue, 532 F.3d 606,
608 (7th Cir. 2008).

It is reversible error for an ALJ to discount

the medical opinion of a treating physician without applying this
legal standard and for further failing to support the decision with
substantial evidence.

Moss, 555 F.3d at 561.

In a letter to Meade’s attorney, Dr. Pascual opined that
Meade’s conditions of fibromyalgia, arthritis, and depression had
deteriorated once she lost her health insurance and could not
afford better treatment options. (Tr. 382.) Dr. Pascual indicated
that Meade was unable to focus on a job or sustain a sitting job
without lifting more than ten pounds of weight on a repetitive
basis for eight hours per day, five days a week.

(Id.)

Dr.

Pascual noted that Meade had tried Lyrica in the past but that it
had made her dizzy, that she was currently on a higher dose of
Cymbalta,

and

that

her

medications

were

not

controlling

her

symptoms; as such, Dr. Pascual lissted Meade’s prognosis as poor
and found it unlikely that she could return to the workforce

28

longterm.

(Id.)

The ALJ gave Dr. Pasqual’s opinion little weight

because he found the assessment to be inconsistent with Dr.
Pasqual’s own progress notes as well as the overall objective
medical evidence.
motives.

(Tr. 21.)

He further questioned Dr. Pasqual’s

(Id.)

With regard to the inconsistency of Dr. Pascual’s records, the
ALJ

again

pointed

to

Dr.

Pascual’s

conservative

treatment

recommendations, her progress notes indicating that medication was
helping with Meade’s fibromyalgia, and the fact that Dr. Pascual
noted that Meade had a full range of motion in all joints.
21.)

(Tr.

As analyzed more fully in the credibility section above,

there are several problems with the ALJ’s characterization of the
record.

First, he did not consider the reasons for Dr. Pascual’s

conservative treatment, namely that Meade was unable to afford such
treatment. See Brown v. Barnhart, 298 F.Supp.2d 773, 797 (7th Cir.
2004).

Second, while the Government argues Dr. Pascual’s records

were inconsistent with her opinion because they did not contain any
restrictions, because they noted that Meade’s fibromyalgia was
being improved by medication, and because Dr. Pascual had indicated
a

full

range

of

motion

in

Meade’s

joints,

the

ALJ

did

not

adequately explain why these progress notes in and of themselves
are inconsistent with Dr. Pascual’s opinion when viewed in light of
the record as a whole.

For example, the ALJ failed to acknowledge

that Dr. Pascual’s progress notes indicate that Cymbalta had

29

initially

seemed

to

help

Meade’s

fibromyalgia,

but

its

effectiveness had leveled off and Meade had resorted to taking
additional pain medication.

(Tr. 369.)

Also, while the ALJ

pointed to Dr. Pascual’s progress notes regarding a full range of
motion in Meade’s joints, he did not adequately explain why these
notes were inconsistent with the other documented symptoms of
fibromyalgia in the record of trigger points, racing/skipping
heartbeats, fatigue, palpitations, loss of strength, difficulty
with concentration, depression, and nervousness.

Again, an ALJ

need not discuss every piece of evidence in the record, Villano v.
Astrue, 556 F.3d 558, 562 (7th Cir. 2009), but he cannot ignore
evidence that conflicts with his conclusion.

Briscoe ex rel.

Taylor v. Barnhart, 425 F.3d 345, 354 (7th Cir. 2005); see also
Sarchet

v.

Chater,

78

F.3d

305,

306

(7th

Cir.

1996)

(“[Fibromyalgia's] cause or causes are unknown, there is no cure,
and, of greatest importance to disability law, its symptoms are
entirely subjective.

There are no laboratory tests for the

presence or severity of fibromyalgia.

The principal symptoms are

“pain all over,” fatigue, disturbed sleep, stiffness, and – the
only symptom that discriminates between it and other diseases of a
rheumatic character – multiple tender spots . . . that when pressed
firmly cause the patient to flinch.”)

Finally, the Court is

troubled by the reference to the ALJ’s claim that Dr, Pascual’s
motives were questionable and that “it appears the doctor is

30

attempting to assist the claimant with obtaining medical benefits.”
(Tr. 21.)

While Dr. Pascual’s notes do indicate that she was

referring

Meade

purposes,

they

anxiety,

and

to

a

also

note

psychiatric

describe

Dr.

evaluation

Meade’s

Pascual’s

her

for
of

history
concern

disability
depression,

that

Meade

was

dependent on Ativan and needed to be referred to a psychiatrist
from her first appointment. Although the Government argues that it
was reasonable for the ALJ to question whether Dr. Pascual was
being influenced by sympathy for her patient, it is not proper to
do so when failing to acknowledge other relevant evidence in the
record.

An assumption cannot be a substitute for evidence.

Barnett v. Barnhart, 381 F.3d 664, 671 (7th Cir. 2004).
The ALJ’s opinion states that SSR 96-2p was considered, but it
is not clear to the Court that the checklist of factors was
adequately considered to determine the appropriate weight to give
to Dr. Meade’s opinions.

Moss, 555 F.3d at 561; see also Bauer,

532 F.3d at 608 (stating that when the treating physician’s opinion
is not given controlling weight “the checklist comes into play”);
Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010) (citations
omitted)

(criticizing

the

ALJ’s

decision

which

regarding this required checklist of factors.”).

“said

nothing

For example, the

ALJ’s opinion does not demonstrate that he considered the frequency
of examination by Dr. Pascual, the nature and extent of the
treatment, or the additional supporting evidence that was provided

31

by Dr. Meade.
“good

20 C.F.R. § 416.927(c).

reasons”

for

discounting

the

The ALJ failed to give

treating

doctor’s

medical

opinion, and failed to demonstrate that he considered all of the
required checklist of factors.
As

with

the

analysis

regarding

the

ALJ’s

credibility

determination, the opinion lacks the logical bridge that the ALJ is
required to build.

Furthermore, “[a]n administrative agency’s

decision cannot be upheld when the reasoning process employed by
the decision maker exhibits deep logical flaws . . . even if those
flaws might be dissipated by a fuller and more exact engagement
with the facts.”

Carradine v. Barnhart, 360 F.3d 751, 756 (7th

Cir. 2004) (citations omitted).

This case must be remanded so the

treating physician’s opinions may be properly addressed.

Remand is Necessary
A remand is necessary because the ALJ’s findings with regard
to

Meade’s

opinions

credibility

were

not

and

clearly

treating

physician

articulated

and

substantiated with evidence in the record.

not

Dr.

Pascual’s

sufficiently

Because remand is

required on these bases, this Court need not address several
additional arguments raised by Meade.

CONCLUSION
For the reasons set forth above, the Commissioner of Social

32

Security’s final decision is REVERSED and this case is REMANDED for
proceedings consistent with this opinion pursuant to sentence four
of 42 U.S.C. section 405(g).

DATED: September 30, 2013

/s/ RUDY LOZANO, Judge
United States District Court

33