Green v. Commissioner of Social Security Administration
Filing
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OPINION AND ORDER: The Court REMANDS this case for further proceedings consistent with this opinion. The Clerk is DIRECTED to terminate this case. Signed by Magistrate Judge Michael G Gotsch, Sr on 11/22/2016. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JAMES KYLE GREEN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Social Security,
Defendant.
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CAUSE NO. 3:15-CV-00180-MGG
OPINION AND ORDER
Plaintiff James Kyle Green (“Green”) filed his complaint in this Court seeking reversal
and remand of the Social Security Commissioner’s final decision to deny his application for
Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act. For the
reasons discussed below, this Court reverses and remands the Commissioner’s final decision.
I.
PROCEDURE
On September 12, 2012, Green filed an application for SSI, alleging disability beginning
September 12, 2012. The Social Security Administration (“SSA”) denied Green’s application
initially on November 13, 2012, and upon reconsideration on March 8, 2013. On November 21,
2013, a hearing was held before an administrative law judge (“ALJ”) where Green and an
impartial vocational expert (“VE”) appeared and testified. On January 27, 2014, the ALJ issued
his decision finding that Green was not disabled at Step Five of the evaluation process and
denied Green’s application for SSI. On February 20, 2015, the Appeals Council denied Green’s
request for review, making the ALJ’s decision the final decision of the Commissioner.
On April 23, 2015, Green filed a complaint in this Court seeking reversal or remand of
the Commissioner’s decision. On October 16, 2015, Green filed his opening brief. Thereafter,
on January 22, 2016, the Commissioner filed a responsive memorandum asking the Court to
affirm the decision denying Green benefits. Green filed his reply brief on April 4, 2016. The
Court may enter a ruling in this matter based on the parties’ consent pursuant to 42 U.S.C. §
405(g); 28 U.S.C. § 636(c)(1).
II.
RELEVANT BACKGROUND
A.
Plaintiff’s Testimony
Green was born on April 13, 1993. He graduated from high school and has no relevant
work experience. He was 19 years old at the time of the alleged onset date of September 12,
2012. Green alleged the impairments of cystic fibrosis, vitamin D deficiency, hypertension,
gastroesophageal reflux disease, bronchial asthma, status post G-tube placement because of poor
weight gain, malabsorption, malnutrition, and depression. He admitted that he was not going to
school or working because his parents were afraid that it would hurt his chances of getting
disability benefits.
Around the time of the application date, Green denied any labored breathing at rest, with
exercise, or a cough, and he reported feeling well. Green alleged at one time that it was difficult
for him to perform everyday tasks without losing his breath, such as walking, climbing stairs,
and vacuuming. During a telephone interview, however, he admitted to an ability to do all of
those things with no problem. In addition, Green indicated that he could play 18 holes of golf
with his dad one to two times a week if he could rest in the cart. Green also reported needing
bathroom breaks eight to nine times a day. Green also claimed that he had stools five to six
2
times a day in August 2012, but that he had improved to stools just two to three times a day by
January 2013.
B.
Medical Evidence
Green was diagnosed with cystic fibrosis at three months of age. X-rays of his chest
revealed changes consistent with cystic fibrosis. Green had a gastric tube (“G-tube”) implanted
sometime around 2010 to assist with his feeding and nutrition. After his application date, but
before the ALJ’s decision, Green was hospitalized four times, due to cystic fibrosis
exacerbations for periods of approximately 14 days each undergoing extensive treatment. Even
with the G-tube, Green continued to experience malabsorption, malnutrition, and poor weight
gain.
In October of 2012, Dr. S. Vemulapalli examined Green at the behest of Social Security.
Dr. Vemulapalli found him positive for respiratory, gastrointestinal, and immunologic problems.
On physical exam Green weighed 133.8 pounds and was 67 inches tall.
In December of 2013, Dr. P. James, Green’s pulmonologist, wrote a letter to Social
Security describing chronic fibrosis as an inherited, life-threatening disease affecting multiple
organs, especially the lungs and digestive system. In earlier notes, he opined that cystic fibrosis
patients often require longer more frequent bathroom breaks. Dr. James indicated that Green
spends up to 45 minutes in the bathroom, but not how often Green normally spends in the
bathroom. In October 2013, Dr. James indicated that Green could go to trade school and get a
job.
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C.
The ALJ’s Determination
After the hearing, the ALJ issued a written decision reflecting the following findings
based on the five-step disability evaluation prescribed in the SSA’s regulations. 1 At Step One,
the ALJ found that Green had not engaged in substantial gainful activity since September 12,
2012, the application date. At Step Two, the ALJ found that Green’s cystic fibrosis,
hypertension, and underweight status constituted severe impairments. The ALJ found that
Green’s alleged depression caused no more than a minimal limitation on his ability to engage in
basic work activities and was therefore not severe. At Step Three, the ALJ gave a six line
analysis finding that Green’s impairments did not meet or equal a Listing.
Before proceeding to Step Four, the ALJ determined Green’s residual functional capacity
(“RFC”). The ALJ found that Green’s overall level of functioning suggested that his impairment
was not as severe as alleged. The ALJ reviewed the medical evidence and concluded that
Green’s physical impairments, while severe, did not prevent him from meeting the exertional
requirements of sedentary work as defined in 20 C.F.R. § 416.967(a), with a few additional
limitations. Specifically, the ALJ concluded that Green had the ability to
lift 10 pounds occasionally, stand and/or walk for two hours in an eight-hour
workday, and sit for six hours in an eight-hour workday with normal breaks.
[Green] can occasionally climb ramps or stairs, but he can never climb ladders,
ropes, or scaffolds. [Green] can occasionally balance, stoop, kneel, crouch, or
crawl.
Doc. 11 at 25. The ALJ also incorporated the following limitations into Green’s RFC:
[Green] requires an environment where he will not be exposed to even moderate
levels of environmental irritants such as fumes, odors, dusts, or gases (i.e. office
type settings). [Green] requires a job that will provide for a lunch break of one
hour, but he otherwise requires only standard breaks (i.e. a break in the morning
and a break in the afternoon).
1
See 20 C.F.R. § 416.920(a)(4)(i)-(v). The claimant bears the burden of proving steps one through four, whereas
the burden at step five is on the ALJ. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001); see also Knight v.
Chater, 55 F.3d 309, 313 (7th Cir. 1995).
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Id. At Step Four, the ALJ found that Green had no past relevant work. At Step Five, the ALJ
considered Green’s age, education, work experience, and RFC and determined that Green was
able to perform a significant number of jobs in the national economy, including becoming an
addresser, charge account clerk, or a surveillance system monitor.
Based on these findings, the ALJ determined in his January 27, 2014, written decision
that Green had not been under a disability from September 12, 2012. Green requested that the
Appeals Council review the ALJ’s decision, and on February 20, 2015, the Council denied
review, making it the Commissioner’s final decision. See Fast v. Barnhart, 397 F.3d 468, 470
(7th Cir. 2005); 20 C.F.R. § 416.1481.
III.
ANALYSIS
A.
Standard of Review
On judicial review, under the Social Security Act, the Court must accept that the
Commissioner’s factual findings are conclusive if supported by substantial evidence. 42 U.S.C. §
405(g); Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). 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. Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005).
Substantial evidence must be “more than a scintilla but may be less than a preponderance.”
Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). Thus, substantial evidence is simply “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971); Kepple v. Massanari, 268 F.3d 513, 516 (7th
Cir. 2001).
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
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judgment for that of the ALJ. Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005). Thus, the
question upon judicial review 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).
Minimally, 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. Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002). However, the ALJ
need not specifically address every piece of evidence in the record, but must present a “logical
bridge” from the evidence to his conclusions. O’Connor-Spinner v. Astrue, 627 F.3d 614, 618
(7th Cir. 2010). The ALJ must provide a glimpse into the reasoning behind his analysis and the
decision to deny benefits. Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir. 2001).
B.
Issues for Review
Green seeks reversal or remand of the ALJ’s decision, arguing that there was evidence
that Green met Listings 3.04B (Cystic Fibrosis) and 5.08 (Weight loss due to any digestive
disorder), and that the ALJ’s Step Three analysis was perfunctory. In other words, Green argues
that the ALJ failed to articulate a “logical bridge” between the evidence and his conclusion that
none of Green’s severe impairments met or medically equaled a Listing at Step Three. Green
also contends that the ALJ improperly evaluated his symptom testimony in the RFC analysis.
1.
Step Three Analysis
At Step Three, the ALJ must determine whether the claimant’s impairment or
combination of impairments is of a severity to meet or medically equal the criteria or an
impairment listed in 20 CFR Part 404, Subpart P, Appendix 1. 20 CFR § 416.920(d), 416.925,
416.926. If the claimant’s impairment or combination of impairments is of a severity to meet or
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medically equal the criteria of a Listing and meets the duration requirement established in 20
CFR § 416.909, the claimant is disabled. If not, the ALJ proceeds to the next step of the
disability analysis.
In this case, the ALJ’s Step Three analysis is very brief and follows in its entirety.
The claimant’s attorney did not argue that the claimant’s impairments met or
equaled a listing. Moreover, no treating physician or examining physician
has indicated diagnostic findings that would satisfy any listed impairment.
After independently considering the listings, and specifically listings 3.02,
3.03, 3.04, 4.00 and 12.04, the undersigned finds that the claimant's
impairments, either separately or in combination, do not medically meet or
equal the criteria of any listed impairment. The listings have threshold
requirements that are not met in the instant case.
Doc. 11 at 24. In the ALJ’s opinion, Listing 3.04 receives the barest of mentions, and Listing
5.08 is not mentioned at all giving rise to Green’s arguments for reversal or remand as discussed
below.
a.
The ALJ’s Listing 3.04B Analysis
Green argues that remand is appropriate because he met the requirements of Listing
3.04B and therefore should have been found disabled and eligible for SSI. Listing 3.04B, for
cystic fibrosis, reads:
Episodes of bronchitis or pneumonia or hemoptysis (more than bloodstreaked
sputum) or respiratory failure (documented according to Section 3.00C, requiring
physician intervention, occurring at least once every 2 months or at least 6 times a
year. Each inpatient hospitalization for longer than 24 hours per treatment counts
as 2 episodes, and an evaluation period of at least 12 consecutive months must be
used to determine frequency of episodes. . . .
20 C.F.R. pt. 404, subpt. P, app. 1 § 3.04B. 2 Section 3.00C defines “episodic respiratory
disease” as follows:
2
The language of 3.04B has been updated, since the time of the ALJ’s decision to require only “three
hospitalizations of any length within a 12–month period and at least 30 days apart.” The listings changed October 7,
2016. 81 FR 37138. Because the ALJ issued his opinion regarding Green’s disability application before the new
wording took effect, the Court here will apply the old standards.
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When a respiratory impairment is episodic in nature, as can occur with
exacerbations of . . . cystic fibrosis . . . , the frequency and intensity of episodes that
occur despite prescribed treatment are often the major criteria for determining the
level of impairment. Documentation for these exacerbations should include
available hospital, emergency facility and/or physician records indicating the dates
of treatment; clinical and laboratory findings on presentation, such as the results of
spirometry and arterial blood gas studies (ABGS); the treatment administered; the
time period required for treatment; and a clinical response. Attacks of asthma,
episodes of bronchitis or pneumonia or hemoptysis (more than bloodstreaked
sputum), or respiratory failure as referred to in paragraph B of 3.03, 3.04, and
3.07, are defined as prolonged symptomatic episodes lasting 1 or more days and
requiring intensive treatment, such as intravenous bronchodilator or antibiotic
administration or prolonged inhalational bronchodilator therapy in a hospital,
emergency room or equivalent setting. Hospital admissions are defined as
inpatient hospitalizations for longer than 24 hours. The medical evidence must
also include information documenting adherence to prescribed regimen of
treatment as well as the description of physical signs.
Therefore, Green effectively summarizes the elements necessary for the ALJ to find that his
cystic fibrosis meets or medically equals Listing 3.04B when he states that he must establish (1)
a cystic fibrosis diagnosis; (2) episodes of bronchitis or pneumonia or hemoptysis or respiratory
failure; (3) adherence to prescribed treatment; (4) physician intervention for intensive treatment,
such as intravenous bronchodilator or antibiotic administration or prolonged inhalational
bronchodilator therapy; and (5) episodes occurring every 2 months or at least 6 times per year (a
hospitalization for more than 24 hours counts as 2 episodes) during a period of 12 consecutive
months with each impatient hospitalization longer than 24 hours. (Doc. 21 at 8).
In support of his argument that he has met all the elements of Listing 3.04B, Green
references the following evidence in the record before the ALJ and now this Court. First, Green
relies on the ALJ’s conclusion that his cystic fibrosis constituted a severe impairment to confirm
his cystic fibrosis diagnosis. Second, Green cites multiple medical records to show that he has
had episodes of bronchitis or pneumonia or hemoptysis or respiratory failure. Specifically,
Green references Dr. James’s reports during (1) a chest x-ray in October 2012 showing abnormal
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thickening of the bronchial walls and damage and lung infection (Doc. 11 at 460); (2) a
November 2012 office visit showing weight loss and a drop in spirometry 3 (Doc. No. 11 at 457);
(3) a hospitalization in March 2013 during which Green experienced congestion and coughing, a
drop in spirometry, and mild clubbing 4 (Doc. 11 at 519); (4) an August 2013 hospitalization
noting a significant drop in spirometry and weight (Doc. 11 at 502); and (5) an October 2013
hospitalization when Green had suffered weight loss, increased cough, shortness of breath, and
mild clubbing. (Doc. 11 at 548-49).
Third, Green makes colorable claims that he was compliant with treatment citing (1)
treatment notes from his November 2012 hospitalization, which state that his aunt and uncle had
been monitoring Green’s compliance with therapy (Doc. 11 at 457); (2) notes from his March
2013 hospitalization indicating that he had been in for treatment a couple of months before and
on the day of his admission (Doc. 11 at 519); and (3) the intake form for his August 2013
hospitalization noting that he not been taking his tube feedings regularly, but that he had
otherwise adhered to treatment (Doc. 11 at 506). Green also explained upon admission to his
October 2013 hospitalization that he had some problems with insurance preventing him from
receiving one of his main medications since September and receiving a tube feeding for two
weeks. (Doc. 11 at 548).
Fourth, Green cites multiple medical records to show that he received intensive treatment,
including IV antibiotics, albuterol treatments, and a therapy vest four times a day, during each of
3
“Spirometry (spy-ROM-uh-tree) is a common office test used to assess how well your lungs work by measuring
how much air you inhale, how much you exhale and how quickly you exhale. Spirometry is used to diagnose
asthma, chronic obstructive pulmonary disease (COPD) and other conditions that affect breathing.” Mayo Clinic,
Tests and Procedures: Spirometry, http://www.mayoclinic.org/tests-procedures/spirometry/basics/definition/prc20012673 (last visited Nov. 4, 2016).
4
“Clubbing of the fingers, in which the fingertips spread out and become rounder than normal, is often linked to
heart or lung conditions.” Mayo Clinic, Healthy Lifestyle: Adult health, http://www.mayoclinic.org/healthylifestyle/adult-health/multimedia/clubbing-of-fingers/img-20005724 (last visited Nov. 4 2016).
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his hospitalizations between November 27, 2012, and November 4, 2013. (Doc. 11 at 460, 506,
523, 551). Fifth, Green argues that he has met the requirement for frequent episodes with his
four hospitalizations, all of which fell within a single year, and each of which lasted
approximately 14 days. (Id.). As such, Green contends that he had a total of eight episodes
because each of the hospitalizations was for more than 24 hours and counts as two episodes
under the language of Listing 3.04B.
The Commissioner all but concedes that Green’s cystic fibrosis met every requirement in
Listing 3.04B, except adherence with treatment. (Doc. 26 at 4). In essence, the Commissioner
seems to argue that it was Green’s noncompliance with his treatment regimen that caused his
four hospitalizations. In support, the Commissioner indicates that the ALJ explicitly noted that
Green’s FEV1 values improved during each of his hospitalization due to cystic fibrosis
exacerbations. Yet, the ALJ’s sole reliance on the improvement in Green’s FEV1 values during
his hospitalizations is not enough to conclude that the ALJ actually found Green noncompliant
with treatment.
Looking beyond the ALJ’s opinion to the record, the Commissioner also points to other
evidence of nonadherence in an attempt to show that Green’s cystic fibrosis could not satisfy the
adherence prong of Listing 3.04B. For instance, the Commissioner noted a doctor’s concern
during Green’s November 2012 hospitalization that Green’s parents were not providing him with
food. The Commissioner also referenced (1) Green’s admission during his March 2013
hospitalization that he had stopped his tube feedings for two weeks; (2) the environmental
irritants such as smoking and gas forced air heat in his home; and (3) notes during his October
2013 hospitalization that he had stopped taking his medication and stopped tube feedings again.
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By presenting this Court with evidence from the record beyond that discussed by the ALJ
in his opinion, both parties have raised the question of whether Green adhered with his treatment
regimen sufficiently to meet the requirements of Listing 3.04B. Yet, the ALJ’s perfunctory
analysis simply does not reveal whether he evaluated any of the evidence cited here by the
parties. More specifically, the ALJ made no mention of Green’s nonadherence in his Listing
analysis. As a result, the ALJ has not provided a logical bridge from the evidence to his
conclusion that Listing 3.04 was not met. Therefore, remand is necessary to determine whether
Green sufficiently adhered to his treatment regimen such that his cystic fibrosis meets or
medically equals the requirements of Listing 3.04B.
b.
The ALJ’s Listing 5.08 Analysis
Green also argues that the ALJ improperly evaluated whether he met or medically
equaled the requirements of Listing 5.08 for weight loss due to any digestive disorder. Listing
5.08 states:
Weight Loss due to any digestive disorder despite continuing treatment as
prescribed, with BMI of less than 17.50 calculated on at least two evaluations at
least 60 days apart within a consecutive 6-month period.
The ALJ made no mention of Listing 5.08 in his perfunctory Step Three analysis, quoted above,
despite finding that Green’s underweight status constituted a severe impairment at Step Two.
According to the applicable regulation,
[t]he nonpulmonary aspects of cystic fibrosis should be evaluated under the
[Listings related to the] digestive body system (5.00). Because cystic fibrosis
may involve the respiratory and digestive body systems, the combined effects of
the involvement of these body systems must be considered in case adjudication.
20 C.F.R. pt. 404, subpt. P, app. 1, § 3.00(D). Indeed, Green’s own pulmonologist explained that
cystic fibrosis affects multiple organs especially the lungs and digestive system because most
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cystic fibrosis patients do not digest dietary fat or protein completely requiring them to take
enzymes to help with absorption. (Doc. No. 11 at 545).
Despite, the apparent connection between cystic fibrosis and digestive disorders, the ALJ
said nothing about a potential digestive disorder in his Step Three analysis. The ALJ did,
however, discuss evidence in the record relevant to Listing 5.08 in his RFC analysis. For
instance, the ALJ calculated Green’s BMI relying solely on Green’s testimony that he was five
feet, six inches tall and weighed 108 or 109 pounds to find a body mass index (“BMI”) of 17.417.6. Notably, a BMI of 17.4–17.6 is considered underweight in the Clinical Guidelines and
straddles Listing 5.08’s 17.5 line.
Yet, the ALJ did not account for Green’s varying weights between 105 and 109 pounds
over the course of the year of his alleged disability. Had he done so, the ALJ would have likely
found that Green met Listing 5.08’s weight requirement by having two subpar BMI calculations
at least 60 days apart within a 6-month period. Moreover, Green has directed the Court’s
attention to evidence in the record showing other dates where Green’s BMI was subpar on two
occasions at least 60 days apart within a 6-month period. In addition, the ALJ’s reliance on
Green’s testimony could be misplaced as it actually contradicts the report of consultative
examiner, Dr. S. Vemulapalli, who found that Green was 5’7”, an inch taller than Green stated.
Without more from the ALJ, the Court cannot discern whether the ALJ discredited Dr.
Vemulapalli’s report, or any other weight evidence in the record, that could have affected
Green’s BMI calculation.
Once again, the Commissioner argues that the weight loss was a result of Green’s
noncompliance in treatment such that Green could not meet the requirements of Listing 5.08.
The Commissioner similarly relies on the ALJ’s opinion where he mentioned that Green’s FEV1
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values improved during each hospitalization to show noncompliance. In contrast, the ALJ seems
to have inadvertently referenced Listing 5.08 when he stated that “[d]espite his G-tube, the
claimant has continued to experience malabsorption, malnutrition, and poor weight gain.” Doc.
11 at 26 (citing hospital records in 2012 and 2013).
Notwithstanding the Commissioner’s arguments regarding noncompliance, the ALJ’s
very limited and potentially conflicting analysis of Green’s weight loss in the RFC section rather
than in his Step Three analysis leave the Court unable to discern whether the ALJ considered
Green noncompliant with treatment, much less whether the ALJ thought noncompliance caused
the weight loss such that Listing 5.08 would not apply.
As a result, the ALJ did not support his decision that Green’s digestive issues arising
from his cystic fibrosis did not meet or medically equal the requirements set forth in Listing 5.08
with substantial evidence.
The Court reaches no conclusion here on how the ALJ should interpret the evidence in
the record. Instead, the Court remands for further evaluation and explanation of the decision.
2.
RFC Analysis
If on remand the ALJ finds that Green meets or medically equals a Listing, he will be
found disabled and the five-step disability determination analysis will end and Green will be
entitled to SSI. On the other hand, should the ALJ find that Green does not meet a Listing, the
ALJ will need to readdress Green’s RFC before proceeding to Step Four and Step Five.
An individual’s RFC demonstrates his ability to do physical and mental work activities
on a sustained basis despite functional limitations caused by medically determinable impairments
and their symptoms, including pain. 20 C.F.R. § 416.945; SSR 96-8p. In making a proper RFC
determination, an ALJ must consider all of the relevant evidence in the case record, including
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evidence of functional limitations resulting from nonsevere impairments. 20 C.F.R. § 415.20(e).
The record may include medical signs, diagnostic findings, the claimant’s statements about the
severity and limitations of symptoms, statements and other information provided by treating or
examining physicians and psychologists, third party witness reports, and any other relevant
evidence. SSR 96-7p. 5
It remains the claimant’s responsibility to provide medical evidence showing how his
impairments affect his functioning. 20 C.F.R. § 416.912(c). Therefore, when the record does not
support specific physical or mental limitations or restrictions on a claimant’s work-related
activity, the ALJ must find that the claimant has no related functional limitations. SSR 96-8p.
An ALJ need not mention every piece of evidence in the record, but must connect the evidence
to the conclusion. Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010).
a.
The ALJ’s Lack of Reference to Green’s Hospitalizations
Green challenges the RFC determination, arguing that the ALJ improperly evaluated
Green’s symptom testimony. (Doc. 21 at 11). In support, Green begins with references to his
hospitalizations, arguing that they support his testimony that he had an average of two to three
bad days a week. Accordingly, Green appears to be contending that his past hospitalizations
show that his impairments would force him to be absent too much to sustain competitive
employment.
Surprisingly, the ALJ’s RFC analysis cites very little evidence in the record showing that
Green was hospitalized four times for periods of approximately 14 days each over the course of a
5
At the time of the ALJ’s decision, credibility was assessed pursuant to SSR 96-7p. However, the SSA has recently
updated its guidance about how to evaluate symptoms in disability claims by issuing SSR 16-3p. The new Ruling
eliminates the term “credibility” from the SSA’s sub-regulatory policies to “clarify that subjective symptoms
evaluation is not an examination of the individual’s character.” SSR 16-3p. Nevertheless, because the ALJ issued
his opinion regarding Green’s disability application before SSR 16-3p was issued and took effect, the Court here
will apply SSR 96-7p and use the term “credibility” accordingly in this order.
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year running from November 27, 2012 to November 4, 2013. (Doc. 11 at 460, 506, 523, 551). In
fact, the Commissioner only points to the ALJ’s reference to the October 2013 report of Dr.
James, during one of the four hospitalizations, suggesting that Green could get a job or go to
school.
Yet Green’s hospitalizations would have caused him to be absent from work
approximately 40 days out of that year making Green’s hospitalization argument something to
consider. Indeed, the vocational expert testified that an individual that missed more than one day
a month other than sick days, holidays, vacation days, and personal leave would have trouble
sustaining competitive employment. Assuming the 40 hospital days did not fall on any holidays,
Green would have missed 2.58 days a month from his application date of September 12, 2012,
through the date of the ALJ’s decision on January 27, 2014, a period of 15-1/2 months. (Doc. 11
at 18, 144). This brings into question what effect Green’s hospitalizations would have had on his
ability to sustain competitive employment, at least during those 15-1/2 months. While the ALJ
need not address all the evidence in his opinion, he failed to connect this seemingly important
evidence of absences resulting from hospitalizations to his conclusion that Green could perform
sedentary work despite Green’s own testimony that he only needed to take one day off each
month from work for medical appointments. (Doc. 11 at 51-52).
Once again, however, the Commissioner contends that the ALJ’s opinion was supported
by substantial evidence in light of Green’s noncompliance with treatment. (Doc. 26 at 8) (citing
Doc. 11 at 454-55, 502, 519-20, and 548-49). As discussed above, any such reliance on
noncompliance is not clear from the ALJ’s opinion. As a result, the Court is not persuaded that
the ALJ’s opinion is supported by substantial evidence in light of the ALJ’s failure to address the
15
effect of Green’s hospitalizations on his RFC. Should the ALJ need to address RFC on remand,
he must also evaluate the impact of the hospitalizations.
b.
The Credibility Analysis
Lastly, Green argues that the ALJ improperly relied on the inconsistencies in Green’s
testimony regarding his overall level of functioning, how often he needed to use the bathroom,
and his golf games in finding Green not entirely credible.
As to Green’s overall level of functioning, the ALJ pointed out an inconsistency between
Green’s testimony that it was difficult for him to do everyday tasks, such as walking, doing
laundry, and vacuuming, without being short of breath and his later statement during a telephone
interview that he could do dishes and laundry and walk half a mile before needing a break.
Green seems to be arguing that the ALJ should not have discounted Green’s reported symptoms
as much as he did. In his brief before this Court, Green explained his limitations varied and that
he reported them as they were when asked. As such, Green claims to have reported significant
limitations right after he left the hospital and no problems before hospitalizations. Indeed, the
ALJ could have asked Green for an explanation of the discrepancies, but it was Green’s burden
to volunteer it. See 20 C.F.R. § 416.912(c). In any event, Green’s testimony about having no
limitations provided substantial evidence that he was capable of working, at least a large portion
of the time.
Green also challenges the ALJ’s discussion of the frequency of Green’s bathroom visits.
Green argues that the ALJ conflated urination and defecation causing him to find an
inconsistency between Green’s testimony that he requires eight to nine bathroom breaks a day
and his later report of having stools just two times per day. The ALJ seems to have fully grasped
the distinction between urination and defecation; he merely questioned Green’s need to use the
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bathroom eight to nine times a day because he had made no complaint to his doctors. Moreover,
only frequent defecation would inhibit work, and the ALJ noted that Green’s reports of having
stools had “improved” throughout the year.
Lastly, Green contends that his ability to play golf with his dad once or twice a week was
not inconsistent with his testimony about his severe limitations because he did not play golf
while he was hospitalized and he also testified that he needed to take breaks during activities.
Yet these facts, combined with Green’s explanations of the inconsistencies cited by the ALJ
related to Green’s overall functioning as well as his bathroom habits, do not demonstrate that the
ALJ’s credibility determination was patently wrong. Nevertheless, the ALJ on remand will need
to consider carefully the weight to afford Green’s testimony about his symptoms should an RFC
analysis be required.
IV.
CONCLUSION
For the above reasons, this Court concludes that the ALJ’s Step Three analysis was not
supported by substantial evidence because it failed to build a logical bridge between the evidence
in the record and the ALJ’s conclusion. Similarly, the ALJ’s failure to address Green’s four
hospitalizations in the RFC analysis left a gap in the logical bridge between the evidence and the
ALJ’s RFC of sedentary work. Therefore, the Court now REMANDS this case for further
proceedings consistent with this opinion. [Doc. No. 21]. The Clerk is DIRECTED to terminate
this case.
SO ORDERED
Dated this 22nd day of November, 2016.
s/Michael G. Gotsch, Sr.
Michael G. Gotsch, Sr.
United States Magistrate Judge
17
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