Zeider v. Commissioner of Social Security

Filing 30

OPINION AND ORDER: The decision of the Commissioner is REVERSED, and this matter is REMANDED to the Commissioner for further proceedings consistent with this opinion. Signed by Judge Jon E DeGuilio on 8/31/2016. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DIANE ZEIDER,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case No. 3:15-CV-317 JD

OPINION AND ORDER
Plaintiff Diane Zeider, on behalf of her deceased husband Robert Zeider, seeks judicial
review of the denial of Mr. Zeider’s claim for disability benefits. For the following reasons, the
Court reverses the decision of the Commissioner of Social Security and remands this matter for
further proceedings.
I. FACTS
Robert Zeider worked for many years as a crop sprayer until he was laid off in September
2006. Years later, he applied for social security disability benefits, alleging that he was unable to
work due to various physical and mental ailments, including chronic obstructive pulmonary
disease, emphysema, high blood pressure, coronary artery disease, and depression. In particular,
he claimed that he experienced shortness of breath and difficulty breathing with any exertion,
which had prevented him from finding or maintaining any gainful employment since he was laid
off. Mr. Zeider’s Date Last Insured was December 31, 2011, meaning that he needed to establish
that he was disabled by that date in order to qualify for disability benefits. His condition
worsened shortly after that date, as he had a heart attack in January 2012. After the

Commissioner had already denied his claim initially and upon reconsideration, Mr. Zeider
suffered another heart attack and died on July 7, 2013.
Mr. Zeider’s wife, Diane Zeider, was therefore substituted as the claimant and testified at
an administrative hearing on Mr. Zeider’s behalf. Following the hearing, the Administrative Law
Judge issued a written decision finding that Mr. Zeider was not disabled by the time of his Date
Last Insured. At step two, the ALJ found that Mr. Zeider had a severe impairment of chronic
obstructive pulmonary disease. At step three, she found that Mr. Zeider did not meet or equal any
listed impairment. Accordingly, she proceeded to formulate Mr. Zeider’s residual functional
capacity, which is a description of what an individual can still do despite his limitations. She
concluded that through his Date Last Insured, Mr. Zeider had the ability to perform medium
work—meaning he could stand and walk for up to 6 hours in an 8-hour day and lift 25 pounds
frequently and 50 pounds occasionally—except that he could have only occasional exposure to
extreme heat, dust, and other pulmonary irritants. Based on the testimony of a vocational expert,
the ALJ concluded that an individual with that residual functional capacity would be unable to
perform Mr. Zeider’s past work (step four), but that he would be able to perform other jobs (step
five). She therefore found that Mr. Zeider was not disabled by his Date Last Insured, so she
denied his claim for benefits. The Appeals Council denied Mr. Zeider’s request for review,
making the ALJ’s decision the final decision of the Commissioner. Mr. Zeider filed this suit
seeking review of that decision, and this Court has jurisdiction under 42 U.S.C. § 405(g).
II. STANDARD OF REVIEW
This Court will affirm the Commissioner’s findings of fact and denial of disability
benefits if they are supported by substantial evidence. Craft v. Astrue, 539 F.3d 668, 673 (7th
Cir. 2008). Substantial evidence consists of “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
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This 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, even if “reasonable minds could differ” about
the disability status of the claimant, the Court must affirm the Commissioner’s decision as long
as it is adequately supported. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
In this substantial-evidence determination, the Court considers the entire administrative
record but does not reweigh evidence, resolve conflicts, decide questions of credibility, or
substitute the Court’s own judgment for that of the Commissioner. Lopez ex rel. Lopez v.
Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). Nevertheless, the Court conducts a “critical review
of the evidence” before affirming the Commissioner’s decision. Id. An ALJ must evaluate both
the evidence favoring the claimant as well as the evidence favoring the claim’s rejection and may
not ignore an entire line of evidence that is contrary to the ALJ’s findings. Zurawski v. Halter,
245 F.3d 881, 888 (7th Cir. 2001). Consequently, an ALJ’s decision cannot stand if it lacks
evidentiary support or an adequate discussion of the issues. Lopez, 336 F.3d at 539. While the
ALJ is not required to address every piece of evidence or testimony presented, the ALJ must
provide a “logical bridge” between the evidence and the conclusions. Terry v. Astrue, 580 F.3d
471, 475 (7th Cir. 2009).
III. ANALYSIS
Disability insurance benefits are available only to those individuals who can establish
disability under the terms of the Social Security Act. Estok v. Apfel, 152 F.3d 636, 638 (7th Cir.
1998). Specifically, 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 12 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security regulations create a five-step

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sequential evaluation process to be used in determining whether the claimant has established a
disability. 20 C.F.R. § 404.1520(a)(4)(i)-(v). The steps are to be used in the following order:
1. Whether the claimant is currently engaged in substantial gainful activity;
2. Whether the claimant has a medically severe impairment;
3. Whether the claimant’s impairment meets or equals one listed in the
regulations;
4. Whether the claimant can still perform relevant past work; and
5. Whether the claimant can perform other work in the community.
Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001).
At step three, if the ALJ determines that the claimant’s impairment or combination of
impairments meets or equals an impairment listed in the regulations, disability is acknowledged
by the Commissioner. 20 C.F.R. § 404.1520(a)(4)(iii). However, if a Listing is not met or
equaled, then in between steps three and four, the ALJ then assess the claimant’s residual
functional capacity, which, in turn, is used to determine whether the claimant can perform his
past work under step four and whether the claimant can perform other work in society at step
five of the analysis. 20 C.F.R. § 404.1520(e). The claimant has the initial burden of proof at steps
one through four, while the burden shifts to the Commissioner at step five to show that there are
a significant number of jobs in the national economy that the claimant is capable of performing.
Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).
Here, Ms. Zeider argues that the ALJ erred in multiple respects. She argues that the ALJ
erred at step two by finding that Mr. Zeider’s only severe impairment was chronic obstructive
pulmonary disease, instead of also including coronary artery disease. She further argues that the
ALJ erred at step three by failing to consult an expert to determine whether Mr. Zeider’s
impairments equaled any listed impairment. She also argues that the ALJ erred in formulating
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Mr. Zeider’s residual functional capacity, which affected the finding at step five. In particular,
Ms. Zeider argues that the ALJ ignored or failed to properly account for certain evidence in the
record, and that the ALJ’s credibility analysis was flawed. The Court agrees with Ms. Zeider on
the last point and finds that the ALJ’s flawed credibility analysis requires a remand for further
proceedings. After discussing that issue, the Court briefly touches on some of the remaining
arguments.
A.

Credibility Analysis
Because the ALJ is in the best position to determine a witness’s truthfulness and

forthrightness, the Court will not overturn an ALJ’s credibility determination unless it is patently
wrong. Shideler v. Astrue, 688 F.3d 306, 310-11 (7th Cir. 2012). The ALJ’s decision must,
however, provide “specific reasons for the finding on credibility, supported by the evidence in
the case record, and must be sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the individual’s statements and the
reasons for that weight.” SSR 96–7p, 1996 WL 374186, at *2; see also Pepper v. Colvin, 712
F.3d 351, 367 (7th Cir. 2013)). An ALJ’s failure to give specific reasons for a credibility finding,
supported by substantial evidence, is grounds for remand. Pepper, 712 F.3d at 367; Myles v.
Astrue, 582 F.3d 672, 676 (7th Cir. 2009). An ALJ also may not ignore evidence. Myles, 582
F.3d at 676.
The Court finds that the ALJ committed those errors here, and that a result, the credibility
finding is not supported by substantial evidence. First, during her credibility discussion, the ALJ
repeatedly noted that Mr. Zeider sought only limited treatment and did not take his medications
as prescribed. An ALJ may consider as part of the credibility analysis whether the claimant
sought treatment commensurate with their claimed limitations. SSR 96-7p (“[T]he individual’s
statements may be less credible if the level or frequency of treatment is inconsistent with the
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level of complaint, or if the medical reports or records show that the individual is not following
the treatment as prescribed and there are no good reasons for this failure.”). But in doing so, the
ALJ must also consider any explanations for failing to seek or comply with treatment.1 Myles v.
Astrue, 582 F.3d 672, 677 (7th Cir. 2009) (stating that “the ALJ was required by Social Security
Rulings to consider explanations for instances where [the plaintiff] did not keep up with her
treatment”); Craft v. Astrue, 539 F.3d 668, 679 (7th Cir. 2008) (similar); SSR 96-7p (“[T]he
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.”). In particular,
a claimant’s inability to afford medication or doctors’ visits can excuse the failure to seek such
treatment. Myles, 582 F.3d at 677; Roddy v. Astrue, 705 F.3d 631, 638 (7th Cir. 2013) (noting
that “the agency has expressly endorsed the inability to pay as an explanation excusing a
claimant’s failure to seek treatment” (citing SSR 96-7p, at *8)).
Here, despite citing and relying on Mr. Zeider’s limited treatment history and his failure
to take medications as prescribed, the ALJ failed to consider any explanations for those factors.
That is a notable omission, since there is abundant evidence that Mr. Zeider was unable to afford
the treatment and medications. Ms. Zeider mentioned during her testimony that Mr. Zeider
would not go to a doctor because they did not have medical insurance. (R. 31). In addition,
nearly every reference in the medical records to Mr. Zeider’s failure to take prescribed
medications or pursue recommended treatment is accompanied by a note that he was unable to

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This same requirement applies if the ALJ relies on non-compliance as evidence that the
claimant would not be disabled if they followed the treatment prescribed by their doctor. 20
C.F.R. § 404.1530(b), (c); Buchholtz v. Barnhart, 98 F. App’x 540, 545–46 (7th Cir. 2004).
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afford those measures. (R. 223 (noting that Mr. Zeider “wasn’t able to afford [Plavix] until June
and so he’s been taking Plavix since June”); 227 (“The patient started taking his blood pressure
medications about six weeks ago but prior to that was not taking any medication secondary to
cost. The patient has been having trouble getting his medications because of cost.”); 245 (noting
that Mr. Zeider “states [he] has had ‘lots of tests’ but can’t afford to get more done”); 250–51
(“[P]atient admits to not taking medications. States . . . he is supposed to be on meds, but doesn’t
take them or get testing done as directed b/c he has no insurance or money to pay.”); 287 (“he
has not had followup for [his heart attack] because he has not had insurance and has not been in
that much.”); 303 (“Spoke with Pt’s wife, she stated it will ‘take some convincing’ to get him to
see a specialist because they do not have insurance.”).
The ALJ erred in failing to at least consider this explanation before discrediting the
testimony about Mr. Zeider’s limitations based on his lack of treatment or compliance.2 Craft,
539 F.3d at 679; see also Pierce v. Colvin, 739 F.3d 1046, 1050 (7th Cir. 2014) (finding that the
ALJ erred in discrediting the claimant based on an absence of objective support for the
limitations, where the claimant’s lack of insurance prevented her from seeking medical
attention). The Commissioner argues in response that there is no evidence that Mr. Zeider sought
and was denied reduced cost treatment. However, while an ALJ is free to take that into account,

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In addition, the ALJ stated that “medical noncompliance may have been a significant factor in
the claimant’s increased symptomology.” (R. 17). However, she did not cite any evidence
linking any medical noncompliance to Mr. Zeider’s functional limitations. While there are
references in the record that Mr. Zeider’s blood pressure was not controlled when he was not
taking his medication, Mr. Zeider’s alleged limitations were his shortness of breath and
wheezing due to his chronic obstructive pulmonary disease and emphysema. The record does not
appear to connect those symptoms to his blood pressure or to any lack of treatment. In fact, as
the ALJ noted, Ms. Zeider testified that Mr. Zeider’s breathing treatments did not improve those
symptoms. (R. 17). Thus, the record does not support this assertion by the ALJ.
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the ALJ here did not do so, and this Court cannot affirm the Commissioner’s decision for reasons
not relied on by the ALJ.
The ALJ relatedly noted that Mr. Zeider “smoked a pack of cigarettes per day despite his
reported symptoms,” and that he continued to smoke until he died. (R. 17). This was also
improper, as the Seventh Circuit has disapproved of relying on claimants’ smoking as evidence
of their lack of credibility. Shramek v. Apfel, 226 F.3d 809, 812–13 (7th Cir. 2000); Rousey v.
Heckler, 771 F.2d 1065, 1069 (7th Cir. 1985). As the Seventh Circuit noted in Shramek, a failure
to quit smoking is more likely indicative of a claimant’s addiction than a lack of limitations, and
is not an adequate basis for an adverse credibility finding:
[T]he ALJ erred in relying on her failure to quit smoking as evidence of
noncompliance and as a basis to find her incredible. We note that even if medical
evidence had established a link between smoking and her symptoms, it is extremely
tenuous to infer from the failure to give up smoking that the claimant is incredible
when she testifies that the condition is serious or painful. Given the addictive nature
of smoking, the failure to quit is as likely attributable to factors unrelated to the
effect of smoking on a person’s health. One does not need to look far to see persons
with emphysema or lung cancer—directly caused by smoking—who continue to
smoke, not because they do not suffer gravely from the disease, but because other
factors such as the addictive nature of the product impacts their ability to stop. This
is an unreliable basis on which to rest a credibility determination.
226 F.3d at 813. Here, the ALJ failed to acknowledge Mr. Zeider’s likely addiction to cigarettes,
and did not explore whether he had tried to quit and failed, for example, or why he continued
smoking. Thus, Mr. Zeider’s failure to quit smoking adds no support to the ALJ’s credibility
finding.
The ALJ also failed to properly consider Mr. Zeider’s activities of daily living and his
work activities when she relied on those factors in her credibility assessment. An ALJ can and
should consider a claimant’s activities when evaluating their credibility. Roddy, 705 F.3d at 639.
As the Seventh Circuit has warned, though, “this must be done with care.” Id. In particular, the
Seventh Circuit has “cautioned that a person’s ability to perform daily activities, especially if
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that can be done only with significant limitations, does not necessarily translate into an ability to
work full-time.” Id. Similarly, when an ALJ considers a claimant’s activities, they should
consider not only what the claimant does, but also how the claimant goes about performing those
activities and what effect the activities have on the claimant. Craft, 539 F.3d at 680. In other
words, an ALJ cannot adopt a “‘sound-bite’ approach in evaluating the record” by citing a
claimant’s activities without acknowledging their context or effects. Czarnecki v. Colvin, 595 F.
App’x 635, 644 (7th Cir. 2015).
The Court finds that the ALJ’s discussion of Mr. Zeider’s activities reflects such an
approach and does not support an adverse credibility determination. The ALJ concluded that Mr.
Zeider’s “daily activities reveal a significant level of function notwithstanding his alleged
symptoms.” (R. 17). The ALJ explained: “The claimant independently attended to personal
hygiene and grooming and occasionally prepared simple meals. The claimant drove to errands
and appointments.” (R. 17). Those modest tasks are not in any way inconsistent with the
limitations that the Zeiders described, nor are they indicative of an ability to maintain full-time
work. The ALJ then continued, “He mowed the lawn weekly, using a riding mower. Mrs. Zeider
testified that property is on two acres.” (R. 17). The records that the ALJ cites, though, indicate
that this task took Mr. Zeider “30 minutes once a week, if needed, with breaks.” (R. 159, 179).
Those qualifications are absent from the ALJ’s decision. And when viewed in that context, the
fact that Mr. Zeider spent 30 minutes once a week sitting on a riding mower, while taking breaks,
does not suggest that Mr. Zeider was less limited than he or his wife claimed, or that he was able
to maintain full-time work.
The ALJ’s discussion of Mr. Zeider’s work activities was similarly flawed. The ALJ
noted that from 2006 to 2011, Mr. Zeider did some seasonal crop-spraying and worked four to

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six hours weekly doing odd jobs for farmers such as mowing and hauling. She concluded that
“[t]hese activities demonstrate a greater level of function that what Mrs. Zeider alleges.” (R. 18).
It is not apparent how so, though. Ms. Zeider alleged that Mr. Zeider was unable to walk for
more than short distances or exert himself because he would become short of breath. These work
activities appear to have involved sitting in either a riding mower or a tractor or truck, and are
not facially inconsistent with the Zeiders’ statements about Mr. Zeider’s limitations. In fact, Mr.
Zeider had reported that this work involved sitting “almost all” the time, and involved “very
little” walking, standing, or lifting, (R. 168), but the ALJ did not acknowledge those details. The
ALJ also noted, citing a medical report, that Mr. Zeider worked part-time in a wholesale job in
January 2012. The ALJ’s decision does not indicate what Mr. Zeider did at that job or for how
long, or otherwise attempt to show how that activity is inconsistent with Ms. Zeider’s testimony.
That activity thus does not meaningfully support the ALJ’s credibility finding either.
None of the other evidence noted by the ALJ would independently support the credibility
finding apart from these shortcomings, either. The ALJ noted that there is no evidence of
“functional abnormalities (i.e. normal gait and station . . . [)], [and] no evidence of motor
abnormalities or range of motion deficits,” (R. 17), but Mr. Zeider never suggested otherwise,
and did not claim to be limited in any of those respects. The ALJ also noted that the recurrent
exacerbations of Mr. Zeider’s chronic obstructive pulmonary disease occurred when he
“developed secondary pulmonary conditions such as acute pneumonia and bronchitis.”3 (R. 17).
The ALJ did not explain, though, why those exacerbations should be considered apart from, and
not viewed as consequences of, Mr. Zeider’s chronic obstructive pulmonary disease. In addition,

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The ALJ also attributed the exacerbations to Mr. Zeider’s failure to take his medication, but
that reasoning is improper for the reasons explained above.
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Mr. Zeider claimed that his shortness of breath with exertion was chronic, and not limited to the
exacerbations, so even disregarding the exacerbations would not be a ground for discrediting Mr.
Zeider as to his shortness of breath.
For those reasons, the Court finds that the ALJ’s credibility analysis was flawed and was
not supported by substantial evidence. This error was not harmless, as if the ALJ had attributed
greater credibility to the Zeiders’ claims about Mr. Zeider’s limitations, she might have
incorporated more restrictive limitations into her residual functional capacity finding, which
could affect her conclusion at step five. Therefore, the Court remands this case to the
Commissioner for further proceedings.
B.

Remaining Arguments
Having determined that this case must be remanded on that basis, the Court need not

decide whether any of the remaining arguments would independently require a remand.
However, the Court will briefly address Ms. Zeider’s arguments as to steps two and three.4 First,
Ms. Zeider argues that the ALJ erred at step two by finding that only Mr. Zeider’s chronic
obstructive pulmonary disease was a severe impairment by his Date Last Insured, and by not also
finding that coronary artery disease was a severe impairment. Ms. Zeider’s arguments are
misplaced in focusing on step two, though. Step two is merely a threshold at which an ALJ
determines whether the claimant has at least one medically determinable impairment that is
severe. If not, the analysis ends and the claimant is not deemed disabled. If so, the ALJ proceeds
to the next steps, at which point the analysis is not cabined by how many severe impairments a

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The Court expresses no opinion as to the other arguments about Mr. Zeider’s residual
functional capacity (which Ms. Zeider is free to pursue on remand), except to note that they
would not justify a direct award of benefits as opposed to a remand for further proceedings; it is
the ALJ’s role to evaluate the evidence, and the evidence here is not so one-sided as to mandate a
finding that Mr. Zeider was disabled.
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claimant has. Thus, so long as a claimant satisfies this threshold inquiry, the question is only
whether the ALJ properly applied the latter steps. Curvin v. Colvin, 778 F.3d 645, 649–50 (7th
Cir. 2015); Arnett v. Astrue, 676 F.3d 586, 591 (7th Cir. 2012) (“Deciding whether impairments
are severe at Sept 2 is a threshold issue only; an ALJ must continue on to the remaining steps of
the evaluation process as long as there exists even one severe impairment.”). Ms. Zeider’s
argument is thus better directed at whether the ALJ properly accounted for Mr. Zeider’s
limitations in the residual functional capacity finding (which must incorporate all limitations,
whether severe or not) in connection with steps four and five.
As to the substance of her step-two argument, Ms. Zeider argues that the ALJ failed to
consider evidence from after Mr. Zeider’s Date Last Insured—primarily, his heart attack less
than a month later—as that evidence may still be probative of the presence and effects of
coronary artery disease prior to that date. Ms. Zeider is correct that an ALJ must consider
evidence even if it post-dates the Date Last Insured. Parker v. Astrue, 597 F.3d 920, 925 (7th
Cir. 2010); Halvorsen v. Heckler, 743 F.2d 1221, 1225–26 (7th Cir. 1984) (“There can be no
doubt that medical evidence from a time subsequent to a certain period is relevant to a
determination of a claimant’s condition during that period.”). It is not clear that the ALJ failed to
do so, though, as she did acknowledge and discuss evidence from after the Date Last Insured.
Since this case is being remanded anyway, the parties may take up on remand what effect this
evidence should have on the ALJ’s finding; the Court would simply note that the ALJ should
consider this evidence and explain her handling of it in her decision.
Finally, Ms. Zeider argues that the ALJ erred at step three by failing to consult a doctor to
determine whether Mr. Zeider’s conditions met or equaled any listing. However, two different
doctors considered whether Mr. Zeider met or equaled a listing, and both concluded that there

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was insufficient evidence to make such a finding. (R. 58, 65). Ms. Zeider does not give any
reason why a third doctor would reach a different opinion, nor does she suggest that there is any
additional evidence for another doctor to consider. Without any indication of what consulting
another doctor would accomplish, the Court cannot find that the ALJ erred by not doing so. If
there is additional evidence to consider on the question of equivalence, though, Ms. Zeider may
raise the issue on remand.
IV. CONCLUSION
For the foregoing reasons, the decision of the Commissioner denying Mr. Zeider’s claim
for benefits is REVERSED, and this matter is REMANDED to the Commissioner for further
proceedings consistent with this opinion.
SO ORDERED.
ENTERED: August 31, 2016

/s/ JON E. DEGUILIO
Judge
United States District Court

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