Dumph v. Commissioner of Social Security

Filing 22

OPINION AND ORDER: The Court REVERSES the Commissioner's decision and REMANDS this matter to the Commissioner for further proceeds consistent with this opinion. Signed by Judge Jon E DeGuilio on 2/13/2018. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DORIS ANN DUMPH,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 3:17-CV-74-JD-JEM

OPINION AND ORDER
In this case, plaintiff Doris Ann Dumph appeals the denial of her claim for Social
Security Disability Insurance Benefits. For the following reasons, the Court remands this matter
to the Commissioner for further proceedings consistent with this opinion.
FACTUAL BACKGROUND
While at work on April 28, 2012, Ms. Dumph felt a pop in her right elbow while lifting a
box. She was diagnosed with lateral epicondylitis (commonly referred to as “tennis elbow”). She
did not work for approximately six months following this injury, but eventually returned until
her release in March 2013. During that yearlong period, she pursued multiple conservative
treatment options to alleviate the pain in her right arm, including pain medication (Percocet,
Vicodin, ibuprofen), occupational therapy, injections, and wearing a supportive brace and elbow
band. Meanwhile, she began to use her non-dominant left arm at work in place of her right arm,
to avoid aggravating her condition. This only made matters worse. By March 2013, she was
experiencing pain and was diagnosed with lateral epicondylitis in her left arm as well, likely due
to overuse.

1

Conservative treatment failed to address the pain in Ms. Dumph’s right arm, and so she
underwent a right elbow lateral epicondylar debridement in April 2013, performed by Dr. David
Cutliffe. She proceeded with post-surgical therapy and added Norco to her regimen of pain
medications. Despite all of this, her pain persisted. Now unemployed, Ms. Dumph does what she
can around the house, but requires significant assistance from her husband and daughter with
many tasks. At night, her chronic pain keeps her awake. During the day, she makes up for lost
sleep by spending much of her waking hours resting, but even still requires two or three naps
each day. The steady stream of medication she takes for her upper extremity pain renders her
drowsy and tired, limiting her ability to drive.
On September 16, 2013, Ms. Dumph applied for disability claiming inability to work due
to her ongoing upper extremity pain. On November 19, 2015, the ALJ found that Ms. Dumph
was limited in her ability to work, but not as severely as alleged and that there were jobs in the
national workplace that a person with Ms. Dumph’s limitations could perform. Accordingly, the
Commissioner denied Ms. Dumph’s claim for benefits.
STANDARD OF REVIEW
Because the Appeals Council denied review, the Court evaluates the ALJ’s decision as
the final word of the Commissioner of Social Security. Schomas v. Colvin, 732 F.3d 702, 707
(7th Cir. 2013). The Court will affirm the Commissioner’s denial of disability benefits if it is
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). It 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

2

the claimant, the Court will 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 does not reweigh evidence, resolve
conflicts, decide questions of credibility or substitute the Court’s own judgment for that of the
Commissioner. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). The Court does, however,
critically review the record to ensure that the ALJ’s decision is supported by the evidence and
contains an adequate discussion of the issues. Id. The ALJ must evaluate both the evidence
favoring the claimant as well as the evidence favoring the claim’s rejection; she may not ignore
an entire line of evidence that is contrary to her findings. Zurawski v. Halter, 245 F.3d 881, 887
(7th Cir. 2001). The ALJ must also “articulate at some minimal level his analysis of the
evidence” to permit informed review. Id. Ultimately, while the ALJ is not required to address
every piece of evidence or testimony presented, he must provide a “logical bridge” between the
evidence and her conclusions. Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009).
DISCUSSION
Disability benefits are available only to individuals who are disabled under the terms of
the Social Security Act. Estok v. Apfel, 152 F.3d 636, 638 (7th Cir. 1998). A claimant is disabled
if he or she is 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 contain a five-step test to ascertain
whether the claimant has established a disability. 20 C.F.R. § 404.1520(a)(4). These steps
require the Court to sequentially determine:
1. Whether the claimant is currently engaged in substantial gainful activity;

3

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.
20 C.F.R. § 404.1520(a)(4); 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, the Commissioner acknowledges disability. 20
C.F.R. § 404.1520(a)(4)(iii). However, if a listing is not met or equaled, the ALJ must assess the
claimant’s RFC between steps three and four. The RFC is then used to determine whether the
claimant can perform past work under step four and whether the claimant can perform other
work in society at step five. 20 C.F.R. § 404.1520(e). The claimant has the burden of proof in
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).
Ms. Dumph raises two main arguments in support of her request for remand. First, she
argues that the ALJ failed to properly evaluate her credibility, specifically with regard to her
allegations that she needs rest periods during the workday due to her pain’s interference with
sleep and her pain medication’s side effects. Second, she contends that the vocational findings
are founded on legal error and not supported by the record. The Court need not address this
second argument because of the ALJ’s insufficient credibility assessment. Since this shortcoming
affected the listing and RFC analyses, this issue will need to be reconsidered on remand.

4

A. Credibility
Ms. Dumph challenges the ALJ’s finding that her statements concerning the intensity,
persistence, and limiting effects of the symptoms caused by her bilateral epicondylitis were “not
entirely credible.” (Tr. 23). As explained below, the Court agrees that the reasons provided by
the ALJ to question Ms. Dumph’s credibility are insufficient.
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 weight given to the individual’s symptoms, be
consistent with and supported by the evidence, and must be sufficiently specific or clearly
articulated so the individual and any subsequent reviewers can assess how the adjudicator
evaluated the symptoms. SSR 16-3p (superseding SSR 96-7p)1; 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. Id.; Myles v. Astrue, 582 F.3d 672, 676
(7th Cir. 2009). The Court finds that the ALJ committed these errors here, and that as a result, his
credibility finding is not supported by substantial evidence.
Ms. Dumph maintains that she cannot sustain a full eight-hour work day due to
drowsiness and tiredness stemming from the pain in her upper extremities and her related
medication. [DE 18 at 5-6] However, the ALJ did not adequately address this potential limiting
effect of Ms. Dumph’s symptoms. It is well-established that, while the ALJ need not address

1
In 2016, the Social Security Administration issued SSR 16-3p, which supersedes SSR 96-7p. SSR 163p, 2016 WL 1119029 (March 16, 2016). SSR 96-7p referred to a claimant’s “credibility,” but SSR 16-3p
removed that term in order to “clarify that subjective symptom evaluation is not an examination of the
individual’s character.” SSR 16-3p, 2016 WL 1119029, at *1. The new SSR was issued after the ALJ’s
decision in this matter, however, it was only a clarification of the law and not a change in the law.
Regardless, under either SSR version the outcome in this case would be the same.

5

every piece of evidence in the record, he cannot ignore an entire line of evidence that contradicts
his findings. Zurawski, 245 F.3d at 888. Ms. Dumph’s potential need for rest repeatedly came up
in this case. At the hearing, she testified that she does not drive much because her pain
medications make her drowsy and “sleepy.” (R. 62). She later expressed her reluctance to try
other pain medications, such as morphine, because she already feels “drugged-up,” and “sleepy
all the time” from her current regimen. (R. 78). Her husband likewise testified that “the
medication does a lot for her as far as making her sleepy.” (R. 91). Ms. Dumph also explained
that her arm pain keeps her awake at night for several hours after retiring to bed, and that it
wakes her up once asleep. (R. 62). Mr. Dumph further stated that his wife’s pain impacts her
sleeping “[a]ll the time” and that he usually has to move to the couch because of her efforts to
get comfortable. (R. 90). In his third party function report, Mr. Dumph additionally noted that his
wife needs to get up at night to take pain medication. (R. 237). Finally, Ms. Dumph testified that,
to compensate for her sleep loss, she has to take 15- to 20-minute naps throughout the day, even
though she already spends much of the day resting. (R. 62-63). Her husband confirmed this as
well. (R. 91).
Ms. Dumph’s testimony also had some support in the medical records. On January 29,
2013, Dr. Cutliffe noted that the pain associated with Ms. Dumph’s epicondylitis interrupts her
sleep and expressed concern that she may have to live with this chronic pain. (R. 370, 372). Later
that year, daily occupational therapy records from July 12, 2013, noted that Ms. Dumph had two
recent “bad nights” due to her aching pain and that she got no sleep at all the night before. (R.
407). At her functional capacity evaluation on September 4, 2013, Ms. Dumph reported severely
disabling pain to the extent that it causes her “difficulty talking and concentrating on anything

6

but the pain.” (R. 322). According to summary report, “[n]eeding to lie down … [is] common at
this level of pain.” Id.
Remarkably, the ALJ did not address any of this evidence. When outlining Ms. Dumph’s
alleged symptoms, he only briefly listed that she needed medication to help her sleep, and that
her pain medications caused her to be drowsy. (R. 23). The ALJ made no other mention of these
issues in his opinion, let alone in his credibility discussion, except for a fleeting reference to Mr.
Dumph’s testimony that his wife takes naps daily. (R. 25). The ALJ found Ms. Dumph’s
statements concerning the intensity, persistence, and limiting effects of her symptoms not
entirely credible “for the reasons explained in this decision.” (R. 23). But within his decision, the
ALJ simply did not explain why Ms. Dumph’s complaints of pain-related tiredness and
medication-induced drowsiness lack credibility. That failure is inexplicable given that these
issues were extensively explored at the hearing and supported in the medical records, and
moreover contravenes Seventh Circuit precedent. See Golembiewski v. Barnhart, 322 F.3d 912,
917 (7th Cir. 2003) (remanding in part because the ALJ ignored evidence of several of the
claimant’s purported symptoms). On remand the ALJ will need to address how Ms. Dumph’s
statements concerning the limiting effects of her pain are not credible, and how, if at all, the
medical record discredits her statements.
In response to Ms. Dumph’s argument, the Commissioner lists the following factors as
relevant to the evaluation of Ms. Dumph’s symptoms: “precipitating and aggravating events,
daily activities, medication taken to alleviate pain or other symptoms, and treatment (other than
medication) received for the relief of pain or other symptoms.” [DE 21 at 3] (citing 20 C.F.R. §
404.1529). She then went on to explain how the ALJ considered all of these factors when
addressing Ms. Dumph’s degree of pain. Id. However, the Commissioner’s paraphrased list does

7

not include the instruction that the ALJ should consider “[t]he type, dosage, effectiveness, and
side effects” of Ms. Dumph’s medication. § 404.1529(c)(3)(iv) (emphasis added). The ALJ
considered the type of pain medication taken by Ms. Dumph, but did not account for the
complained-of side effects (drowsiness and tiredness) that clearly existed in the record. See
Flores v. Massanari, No. 00-4334, 2001 WL 1092796, *5 (7th Cir. Sept. 13, 2001) (ordering
remand where ALJ failed to address testimony from both claimant’s stepdaughter and attorney
that his prescribed medications made him foggy and fatigued). Nor did he make any connection
between his discussion of Ms. Dumph’s symptoms and whether he believed she needed daily
rests as a result of her medication and nocturnal pain in light of the diminished credibility he
gave her complaints. Thus, he failed to support his determination with the necessary logical
bridge. Terry, 580 F.3d at 475 (ordering remand where ALJ determined claimant’s complaints of
disabling pain were not credible because she had not “reported” any side effects to the SSA but
where the record contained reports that the medication made her drowsy).2
Ultimately, the ALJ’s insufficiently supported assessment of the claimant’s testimony
and credibility calls into question the soundness of the ALJ’s RFC finding. (R. 22) (“The
claimant’s allegations are not fully credible …. In light of the foregoing evidence, the
undersigned is unable to conclude that, as a result of claimant’s impairments, that she was

2
The Commissioner additionally argues that the ALJ’s findings are consistent with the state agency
psychological consultants, who found only mild limitations with regard to concentration, persistence, and
pace. [DE 21 at 5] But the ALJ and the consultants reached those findings when assessing the limitations
caused by Ms. Dumph’s anxiety disorders, not her bilateral epicondylitis. (R. 21, 124, 134). At Step 2, the
ALJ determined Ms. Dumph’s anxiety to be nonsevere. (R. 21). Ms. Dumph does not challenge that
portion of the ALJ’s opinion. The Commissioner further notes that Ms. Dumph did not check the boxes
next to “memory, concentration, understanding, or following instructions” in her function report [DE 21
at 5], but the ALJ did not address this purported inconsistency in his opinion and thus the Court will not
consider it. See Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010) (noting that SEC v. Chenery Corp.,
318 U.S. 80, 87-88 (1943) “forbids an agency’s lawyers to defend the agency’s decision on grounds that
the agency itself has not embraced”).

8

limited beyond the capacity for work as indicated in the residual functional capacity as found
herein.”); see 20 C.F.R. § 404.1545(a). In turn, the insufficiently supported RFC finding led the
ALJ to ask hypotheticals of the VE which omitted claimed (and potentially credible) limitations
caused by Ms. Dumph’s upper extremity pain. In fact, the VE even testified that if a hypothetical
person needed additional unscheduled breaks or was off task more than 10% of the workday,
then that individual would be unemployable. (R. 117). Accordingly, the VE’s testimony cannot
be relied upon as an accurate indicator for the type of work that Ms. Dumph is capable of
performing.3 See Young, 362 F.3d at 1003-05 (the ALJ must determine the claimant’s RFC
before performing steps four and five because a flawed RFC typically skews questions posed to
the VE); SSR 96-8p. Thus, until the hypotheticals presented to the VE include the functional
limits that the ALJ accepts as credible, and the ALJ adequately explains the claimant’s actual
limitations and resulting RFC based on the relevant medical evidence, 20 C.F.R. §§ 404.1545,
404.1546(c), step five cannot be affirmed in this appeal. See Young, 362 F.3d at 1003-05. The
remedy for the shortcomings noted herein is further consideration, not the immediate award of
benefits requested by Ms. Dumph’s counsel. [DE 18 at 10]

3
Admittedly, the Seventh Circuit has occasionally concluded that a VE has familiarity with the claimant’s
limitations, despite any gaps in the hypothetical, when the record shows that the VE independently
reviewed the medical record or heard testimony directly addressing those limitations and the VE
considered that evidence when indicating the type of work the claimant is capable of performing.
O’Connor-Spinner v. Astrue, 627 F.3d 614, n. 5 (7th Cir. 2010) (citing Simila v. Astrue, 573 F.3d 503,
521 (7th Cir. 2009); Young, 362 F.3d at 1003; Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir. 2002);
Ragsdale v. Shalala, 53 F.3d 816, 819-21 (7th Cir. 1995); Ehrhart v. Sec’y of Health & Human Servs.,
969 F.2d 534, 540 (7th Cir. 1992)). So, even though the VE here reviewed the claimant’s file and listened
to her testimony (R. 94), this exception does not apply here, since the VE never indicated in his responses
having relied on Ms. Dumph’s medical records or the hearing testimony. Rather, the VE’s attention was
on the limitations of the hypothetical persons posed by the ALJ, and not on the record itself or the
limitations of the claimant herself. Id. (citing Simila, 573 F.3d at 521; Young, 362 F.3d at 1003).

9

CONCLUSION
For the reasons stated above, the Court REVERSES the Commissioner’s decision and
REMANDS this matter to the Commissioner for further proceedings consistent with this
opinion.
SO ORDERED.
ENTERED: February 13, 2018
/s/ JON E. DEGUILIO
Judge
United States District Court

10