Griffin v. Commissioner of Social Security

Filing 39

OPINION AND ORDER: REMANDING this matter for further proceedings consistent with this opinion. Signed by Magistrate Judge John E Martin on 1/15/15. (jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
KIMBERLY S. GRIFFIN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

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CAUSE NO.: 3:13-CV-1179-JEM

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Kimberly S. Griffin
on November 13, 2013, and Plaintiff’s Brief in Support of Reversing the Decision of the
Commissioner of Social Security [DE 27], filed by Plaintiff July 31, 2014. Plaintiff requests that the
decision of the Appeals Council be reversed and remanded for further proceedings. On November
13, 2014, the Commissioner filed a response, and on November 26, 2014, Plaintiff filed a reply. For
the following reasons, the Court grants Plaintiff’s request for remand.
PROCEDURAL BACKGROUND
On November 17, 2010, Plaintiff filed an application for disability insurance benefits
(“DIB”) with the U.S. Social Security Administration (“SSA”) alleging that she became disabled
on September 1, 2010. Plaintiff’s application was denied initially and upon reconsideration. On June
1, 2012, Plaintiff appeared with her attorney and testified at a hearing before an administrative law
judge (“ALJ”); a vocational expert also testified. ALJ Jonathan Stanley denied benefits on June 20,
2012. The Appeals Council accepted review and denied benefits on October 15, 2013, making the
Appeals Council’s decision the final Agency decision.

The Appeals Council made the following findings under the required five-step analysis and
adopted the ALJ’s findings and conclusions regarding whether Griffin is disabled:
1. The claimant met the special earnings requirements of the Act on September 1,
2010, the date the claimant stated she became unable to work and met them through
June 30, 2012. The claimant has not engaged in substantial gainful activity since
September 1, 2010.
2. The claimant has the following severe impairments: obesity, fibromyalgia,
degenerative disc disease to cervical and lumbar spine, chronic bronchitis, but does
not have an impairment or combination of impairments which is listed in, or which
is medically equal to an impairment listed in 20 CFR Part 404, Subpart P. Appendix
1.
3. The claimant’s combination of impairments results in the residual functional
capacity to perform a reduced range of the sedentary exertional level.
4. The claimant’s subjective complaints are not fully credible.
5. The claimant is unable to perform past relevant work as cook helper, packaging
line attendant, or deli cutter slicer because the demands of those jobs exceed her
residual functional capacity.
6. The claimant was 48 years old on her date last insured, which is defined as
younger individual and has a high school education. The claimant’s past relevant
work is semiskilled or skilled. The issue of transferability of work skills is not
material in view of the claimant’s age and residual functional capacity.
7. If the claimant had the capacity to perform the full range of sedentary
exertional level, 20 CFR 404.1569 and Rule 201.21, Table No. 1 of 20 CFR Part
404, Subpart P, Appendix 2, would direct a conclusion of not disabled. Although
the claimant’s exertional and nonexertional impairments do not allow her to
perform the full range of the sedentary exertional level, there are a significant
number of jobs in the national economy which she could perform, such as ampule
sealer, document preparer and telephone quote clerk.
8. The claimant is not disabled as defined in the Social Security Act at any time
through June 30, 2012, the claimant’s date last insured.
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.

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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
A.

Background
Plaintiff was 48 years old on the date when her insured status expired on June 30, 2012. She

had a high school education; prior to the onset of her alleged disability, she worked as a cook’s
helper, packaging line attendant, and deli cutter/slicer.
B.

Medical and Mental Health Evidence
Plaintiff suffers from obesity, fibromyalgia, degenerative disc disease, bi-polar disorder,

depression, migraine headaches, and chronic pain syndrome. In April 2011, Dr. John Kelly,
Plaintiff’s treating physician, completed a “Fibromyalgia Residual Function Capacity
Questionnaire” finding she met the criteria for fibromyalgia. The questionnaire filled out by Dr.
Kelly also listed nineteen “moderate” limitations that would continue after treatment and stated she
was not capable of even a low stress job. In May 2011, Dr. Kelly filled out a nearly identical
questionnaire, in which he also opined that Plaintiff was incapable of even low stress jobs. In May
2012, Dr. Kelly wrote Plaintiff was limited to sitting in one spot for no more than about an hour at
a time, for a total of about two hours in an eight hour period due to fatigue with generalized pain.
Dr. Kelly also opined that Plaintiff could lift 6-10 pounds, but not repeatedly and no more than four
times in an eight hour period.
In March 2011, state agency physician A. Seluzhitskiy, M.D. examined Plaintiff. He
concluded that Plaintiff has evidence of chronic neck pain, chronic back pain, degenerative disc and
joint disease of the cervical spine, degenerative joint and disc disease of the lumbar spine,

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uncontrolled fibromyalgia, severe uncontrolled migraine headaches, severe bipolar disorder,
combined type, degenerative disease of the left knee, insomnia and tobacco use disorder. In
February 2011, Sharon K. Sacks, Ph.D., conducted a psychological assessment of Plaintiff for the
state agency. The report noted that Plaintiff reported a mental health history that required a mood
stabilizer most of her adult life, that she presented as slightly lethargic and low in mood, and
reported chronic pain that appeared to be dictating her quality of life. She found there had not been
much improvement since a similar 2006 exam also conducted by Dr. Sacks for the state agency.
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
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

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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, 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, 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

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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).
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). 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); 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
[his] limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001) (citing SSR 96-8p, 1996

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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.

Treating Physician
Plaintiff argues that the ALJ failed to properly assess the treating physician opinion evidence.

The Commissioner argues that the ALJ’s findings are supported by substantial evidence.
Plaintiff argues that the ALJ erred in giving little weight to treating physician Dr. John Kelly
and failing to address all of Dr. Kelly’s opinions. Plaintiff argues that the ALJ failed to set forth a
supported reason for finding that Dr. Kelly’s opinion was not entitled to controlling weight and that
the ALJ failed to properly weigh the opinion evidence. The Commissioner argues that the ALJ gave
Dr. Kelly’s opinion little weight because it was contrary to the information contained in his
examinations.
“A treating physician’s opinion regarding the nature and severity of a medical condition is
entitled to controlling weight if it is well supported by medical findings and not inconsistent with
other substantial evidence in the record.” Gudgel, 345 F.3d at 470 (citing 20 C.F.R. §
404.1527(d)(2)); see also Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007). Being “not
inconsistent” does not require that opinion be supported directly by all of the other evidence “as long
as there is no other substantial evidence in the case record that contradicts or conflicts with the
opinion.” SSR 96-2p, 1996 WL 374188 at *3. To be “substantial,” conflicting evidence “need only

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be such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Id. (citing Richardson v. Perales, 402 U.S. 389 (1971)); see also Schmidt v. Barnhart, 395 F.3d 737,
744 (7th Cir. 2005).
If the ALJ declines to give a treating source’s opinion controlling weight, he must still
determine what weight to give it according to the following factors: the length, nature, and extent
of the physician’s treatment relationship with the claimant; whether the physician’s opinions were
sufficiently supported; how consistent the opinion is with the record as a whole; whether the
physician specializes in the medical conditions at issue; and other factors, such as the amount of
understanding of the disability programs and their evidentiary requirements or the extent to which
an acceptable medical source is familiar with other information in the claimant’s case. 20 C.F.R.
§§ 404.1527(c)(2)(i)-(ii), (c)(3)-(6); see also Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008). “If
the ALJ discounts the [treating] physician’s opinion after considering these factors, [the Court] must
allow that decision to stand so long as the ALJ ‘minimally articulated’ [his] reasons.” Elder, 529
F.3d at 415 (quoting Berger v. Astrue, 516 F.3d 539, 545 (7th Cir. 2008)); see also Punzio v. Astrue,
630 F.3d 704, 710 (7th Cir. 2011) (“[W]henever an ALJ does reject a treating source's opinion, a
sound explanation must be given for that decision.”); Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir.
2007) (“An ALJ thus may discount a treating physician’s medical opinion if it . . . ‘is inconsistent
with the opinion of a consulting physician or when the treating physician’s opinion is internally
inconsistent, as long as he minimally articulates his reasons for crediting or rejecting evidence of
disability.’”) (quoting Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004)).
Dr. Kelly was Plaintiff’s treating physician, but the ALJ afforded little weight to Dr. Kelly’s
opinion. The ALJ stated that he gave little weight to Dr. Kelly’s May 2012 opinion that Plaintiff’s

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musculoskeltal impairments limited her from sitting in one spot for more than one hour at a time up
to two hours in an 8-hour workday and that her headaches would cause her to miss more than four
days of work in a month. The ALJ explained that he gave Dr. Kelly’s May 2012 opinion “little
weight, as the claimant has not consistently treated her for headaches and thus, finds this to be a nonsevere impairment.” AR 39. The ALJ also stated that Dr. Kelly’s 2012 opinion was inconsistent with
his May 2011 opinion, which stated that Plaintiff was unable to do any work and would be unable
to perform even a low stress job. AR 39. The ALJ did not mention or assess Dr. Kelly’s April 2011
opinion that Plaintiff had numerous moderate limitations. AR 633.
In this case, the ALJ did not discuss the length, nature, and extent of Dr. Kelly’s treatment
relationship with Plaintiff; whether Dr. Kelly’s opinions were sufficiently supported; how consistent
his opinion was with the record as a whole; and whether the physician specializes in the medical
conditions at issue. The ALJ relied on the fact that Dr. Kelly had not treated Plaintiff consistently
for headaches for his decision to give Dr. Kelly’s opinion little weight. Not only does the ALJ fail
to explain how that impacts Dr. Kelly’s opinion regarding the musculoskeltal impairments described
in May 2012 or April 2011, it also appears to ignore the references to headaches and prescriptions
prescribed for them in multiple visits to Dr. Kelly. AR 349, 352, 356, 359, 367, 496, 517, 524, 550,
550, 550, 555, 563, 613, 645, 648, 374, 406, 409, 411.
Furthermore, the ALJ stated there was no evidence in the record that Plaintiff is restricted
from lifting or sitting, since “[d]uring most of the examinations, she had a normal gait and stance,
and was able to perform heel, toe and tandem walks normally,” without explaining the connection
between this finding and the lifting and siting restrictions found by Dr. Kelly. AR 39. The ALJ also
failed to explain the inconsistency between Dr. Kelly’s May 2012 opinion was inconsistent with Dr.

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Kelly’s May 2011 opinion, because the May 2012 opinion, stating that Plaintiff could not sit for
more than two hours in a day, and Dr. Kelly’s April 2011 opinion, stating that Plaintiff is unable to
do any work and would be unable to perform even a low stress job. The Court does not see how
these are mutually exclusive statements that contradict each other, and the ALJ failed to explain the
“logical bridge between the evidence and his conclusions.” O’Connor-Spinner, 627 F.3d at 618.
Because the ALJ erred in failing to give a sound explanation for his rejection of the treating doctor’s
opinions, the Court remands the ALJ’s RFC determination. On remand, the ALJ is to fully consider
Dr. Kelly’s opinions and provide a logical bridge from the evidence to his conclusion.
B.

Residual Functional Capacity
Plaintiff argues that the ALJ did not properly analyze Plaintiff’s migraine headaches or

accommodate her mental limitations in the RFC. The Commissioner argues that the ALJ
acknowledged the migraine headaches and considered Plaintiff’s mental limitations.
The RFC is an assessment of what work-related activities the claimant can perform despite
her limitations. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); see also 20 C.F.R. §§
404.1545(a)(1). In evaluating a claimant’s RFC, an ALJ is expected to take into consideration all
of the relevant evidence, including both medical and non-medical evidence. See 20 C.F.R. §§
404.1545(a)(3). According to SSA regulations:
The RFC assessment must include a narrative discussion describing
how the evidence supports each conclusion, citing specific medical
facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations). In assessing RFC, the adjudicator must
discuss the individual’s ability to perform sustained work activities
in an ordinary work setting on a regular and continuing basis (i.e., 8
hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the
individual can perform based on the evidence available in the case
record. The adjudicator must also explain how any material
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inconsistencies or ambiguities in the evidence in the case record were
considered and resolved.
SSR 96-8p at *7. The Court will not disturb an ALJ’s RFC assessment unless (1) the assessment
lacks substantial evidence, 42 U.S.C. § 405(g); see also Schmidt v. Barnhart, 395 F.3d 737, 744 (7th
Cir. 2005) (substantial evidence consists of “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”), or (2) the assessment fails to build an “accurate and
logical bridge from the evidence to his conclusion.” Scott, 297 F.3d at 595 (quoting Steele v.
Barnhart, 290 F.3d 936, 941 (7th Cir. 2002)). Although an ALJ is not required to discuss every
piece of evidence, he must consider all of the evidence that is relevant to the disability determination
and provide enough analysis in his decision to permit meaningful judicial review. Clifford, 227 F.3d
at 872; Young, 362 F.3d at 1002. For judicial review, the reviewing Court must be able to trace the
ALJ’s path of reasoning. Clifford, 227 F.3d at 874.
1.

Migraine Headaches

The ALJ found that the Plaintiff’s headaches to be a non-severe impairment because “she
has barely treated for headaches.” AR 33. The ALJ supports his conclusion with the fact that
Plaintiff was never referred to a specialist or ordered a more aggressive treatment protocol for her
headaches.
The Seventh Circuit has repeatedly held that ALJs are not to make their own independent
medical findings. See, e.g., Myles v. Astrue, 582 F.3d 672, 677-78 (7th Cir. 2009); Blakes v.
Barnhart, 331 F.3d 565, 570 (7th Cir. 2003); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996).
Judges have been warned not to “succumb to the temptation to play doctor” because “lay intuitions
about medical phenomena are often wrong.” Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990)
(citing cases). The ALJ may “consider conservative treatment in assessing the severity of a
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condition,” but should cite medical evidence about what kind of treatment would be appropriate.
Brown v. Barnhart, 298 F. Supp. 2d 773, 797 (E.D. Wis. 2004) (citing Dominguese v. Massanari,
172 F. Supp. 2d 1087, 1096 (E.D. Wis. 2001)).
As discussed above, the Plaintiff was treated for headaches by Dr. Kelly and was prescribed
medication for the headaches repeatedly, contrary to the ALJ finding. Further, the Agency’s
consulting examiner concluded Plaintiff had “severe uncontrolled migraine headaches.” AR 465.The
ALJ did not cite to any medical evidence as to what additional treatment would be appropriate,
except to say that Plaintiff had never been referred to a neurologist or had an MRI. Neither the
referral nor MRI are treatments but are merely diagnostic tools. In this case, the ALJ concluded that
Plaintiff’s headaches were non-severe because she did not receive treatment, but the record indicates
treatment and the ALJ does not cite medical evidence that additional treatment was warranted.
Instead he substituted his judgment for the doctor’s regarding what else could have been done. This
matter is being remanded for a new RFC. On remand, the ALJ should analyze Plaintiff’s headaches
consistent with the record and explain his path of reasoning without making his own independent
medical findings.
2.

Mental Limitations

The ALJ acknowledged that Plaintiff has a history of bipolar disorder and depression dating
back to 2005. AR 33. In addition, the DDS State agency psychological consultant found “mild
limitations in [Plaintiff’s] concentration, persistence or pace with no episodes of decompensation.”
AR 34. The Court is concerned that the ALJ may not have fully considered the combination of
Plaintiff’s impairments. “[A]n ALJ is required to consider the aggregate effects of a claimant’s
impairments, including impairments that, in isolation, are not severe.” Getch v. Astrue, 539 F.3d

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473, 483 (7th Cir. 2008) (citing 20 C.F.R. § 404.1523; Golembiewski v. Barnhart, 322 F.3d 912, 918
(7th Cir. 2003); see also Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009) (“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.”); Sims v.
Barnhart, 309 F.3d 424, 432 (7th Cir. 2002) (“We remind ALJs that they must not narrowly confine
their review to isolated impairments when the record shows that the impairments have some
‘combined effect.’”); 20 C.F.R. § 404.1523 (“[W]e will consider the combined effect of all of your
impairments without regard to whether any such impairment, if considered separately, would be of
sufficient severity” to find disability.).
The ALJ stated generally that he had “considered both severe and non-severe impairments
when determining the claimant’s medically determinable impairments equal a listing and when
assigning the claimants residual function capacity.” AR 34. Although he explicitly considered
Plaintiff’s obesity, the ALJ did not clearly consider the impact of Plaintiff’s headaches or mental
health on her RFC, nor did he consider how the several impairments in combination with her other
impairments on her ability to perform work. The Court is remanding the RFC determination on other
grounds, but upon remand the ALJ is directed to explicitly address Plaintiff’s headaches and mental
limitations and consider how those impairments may aggravate her other impairments and impede
her ability to sustain work full time.
C.

Credibility
The Plaintiff argues that the Appeals Council erred when it found Plaintiff not fully credible

for the reasons identified in the body of the decision, but there was no credibility rationale in the

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Appeals Council decision. To the extent the Appeals Council adopted the ALJ’s credibility
assessment, Plaintiff argues that it did not properly examine her credibility under the Social Security
Rules. The Commissioner argues that the ALJ identified a number of factors in evaluating her and
considered the totality of the record.
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 []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. See 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. 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 at *6. An ALJ’s credibility determination is

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entitled to substantial deference by a reviewing court and will not be overturned unless the claimant
can show that the finding is “patently wrong.” Prochaska, 454 F.3d at 738.
The ALJ did not find the Plaintiff to be credible and concluded that “[i]n general, the
claimant’s testimony and allegations with regard to her limitations are disproportionate to the
objective findings within the record.” AR 40. The ALJ does not identify what these objective
findings are, except to state that she is “able to perform a considerable number of activities of daily
living” and the treatments for her impairments have “been essentially routine and conservative in
nature as there is no evidence of any surgery, physical therapy, TENS unit or epidural injections and
it appears that her pain is controlled with oral prescription pain medication.” AR 40.
The daily activities the ALJ notes include “maintaining her personal hygiene, cooking,
washing dishes, vacuuming, doing laundry and taking care of her two nieces.” AR 40. The ALJ does
not address Plaintiff’s testimony that she gets up with her nieces and makes sure they are dressed
for school, but then goes back to sleep. AR 67. Plaintiff also testified she “starts the dishes” but
takes breaks to finish them; “attempt[s] vacuuming,” but has to stop after pushing the vacuum back
and forth “up to five times;” and needs help from her daughter three to four times a week to get in
and out of the shower and to put on shoes and socks. AR 67, 69, 70, 71. To the extent that the ALJ
is implying that these meager activities indicate an ability to work, the Court notes that the Seventh
Circuit Court of Appeals has repeatedly criticized credibility determinations that equate a plaintiff’s
ability to take care of her personal hygiene, children, or household chores with the ability to work.
See, e.g., Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012); Punzio, 630 F.3d at 712; Zurawski,
245 F.3d at 887; Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir. 2006). In this case, the ALJ also
does not explain how Plaintiff’s limited ability to perform these tasks equates to being able to work

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full time.
It also appears that the ALJ does not find the extent of Plaintiff’s impairments credible
because of the nature of treatments she received. The ALJ noted that Dr. Kelly only saw the Plaintiff
“monthly basis for medication refills” but never recommended a more aggressive treatment and has
not referred her to a specialist. AR 40. That Plaintiff was going to monthly appointments for refills
for pain treatment and mental treatment re-fills appears to support her testimony rather than discredit
it. In August 2010, Dr. Kelly did note that she previously had physical therapy in 2005 and
chiropractic treatment in 2006 and they provided no relief. AR 371. The ALJ “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” and “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.” SSR 96-7p, at *7; see also
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). Here the ALJ did not question Plaintiff about
her failure to seek other treatments, even though the record indicates that she financial constraints
kept her from being able to afford certain prescriptions for her mental illness and, as described
above, seems to be making his own medical determinations about what treatment Plaintiff should

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be seeking. See e.g., 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 improperly relied on Plaintiff’s failure to seek treatment to find her less than
credible and failed to address other factors he should have included in his credibility assessment.
The Court remands the case for a new credibility determination. On remand, the ALJ is directed to
fully consider Plaintiff’s testimony and the entirety of the record in compliance with the applicable
directives.
CONCLUSION
For the foregoing reasons, the Court hereby GRANTS the relief requested in Plaintiff’s Brief
in Support of Reversing the Decision of the Commissioner of Social Security [DE 27] and
REMANDS this matter for further proceedings consistent with this opinion.
SO ORDERED this 15th day of January, 2015.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc: All counsel of record

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