Riley v. Commissioner of Social Security
OPINION AND ORDER: The Commissioner of Social Security's final decision is REVERSED and this case is REMANDED to the Social Security Administration for further proceedings consistent with this Opinion pursuant to sentence four of 42 USC Sec. 405(g). Signed by Judge Rudy Lozano on 08/05/13. (ksp)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
MELISSA KAY RILEY,
CAROLYN W. COLVIN1,
ACTING COMMISSIONER OF
OPINION AND ORDER
This matter is before the Court for review of the Commissioner
of Social Security’s decision denying Disability Insurance Benefits
and Supplemental Security Income to Plaintiff, Melissa Kay Riley.
For the reasons set forth below, the Commissioner of Social
Security’s final decision is REVERSED and this case is REMANDED to
consistent with this opinion pursuant to sentence four of 42 U.S.C.
On May 21, 2009, Melissa Kay Riley (“Riley” or “claimant”)
applied for Social Security Disability Benefits (“DIB”) under Title
On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of
Social Security. Pursuant to Federal Rule of Civil Procedure 25, Carolyn W.
Colvin is automatically substituted as the Defendant in this suit.
II of the Social Security Act, 42 U.S.C. section 401 et seq. and
Supplemental Security Insurance (“SSI”) under Title XVI of the
application originally indicated that Riley’s disability began on
December 15, 2006.
During the pre-hearing screening process the
onset date was amended to August 26, 2008.
The Social Security Administration denied Riley’s initial
On January 27, 2011, Riley appeared with counsel
by way of video conference at an administrative hearing before
Administrative Law Judge Cynthia M. Bretthauer (“ALJ Bretthauer”).
Testimony was provided by the claimant and Margaret H. Ford (a
On February 23, 2011, ALJ Bretthauer denied
the claimant’s DIB and SSI claims, finding that Riley had not been
under a disability as defined in the Social Security Act.
The claimant requested that the Appeals Council review the
ALJ’s decision and the request was denied.
Accordingly, the ALJ’s
decision became the Commissioner’s final decision.
See 20 C.F.R.
The claimant has initiated the instant action
for judicial review of the Commissioner’s final decision pursuant
to 42 U.S.C. § 405(g) and 1383(c).
Riley was born on June 23, 1968.
hypertension and depression.
She alleges the following
Her past relevant work includes
certified nursing assistant, housekeeper and convenience store
The medical evidence of record is adequately summarized
by the claimant’s counsel and, in a nutshell, is as follows:
In the fall of 2006, Riley went to the emergency room twice
for severe acute onset headaches and hypertensive crises.
underwent a lumbar puncture and CT.
Both were normal, but an MRI
showed a large demyelinating-appearing legion in the splenium of
compatible with demyelination of microvascular disease.
these emergency room visits, Riley was treated and released. (Tr.
312-319, 445, 491).
neurologist, on February 1, 2007. (Tr. 491). Dr. Hoyer noted that
the MRI results showed evidence of multiple sclerosis.
Dr. Hoyer that her headaches were there when she awoke and that
pain medication would only dampen down the pain.
headaches with amitriptyline and beta-blockers and get repeat MRI
scans of the brain and an MRA of the circle of Willis. (Tr. 493).
An MRI of the brain on February 16, 2007, showed white matter
lesions and a diagnosis of MS, although there was a decrease in
size of the lesions since the previous MRI. (Tr. 440).
Riley’s headaches continued, and she visited the emergency
room for headaches again in May and August of 2007. (Tr. 348-357;
457-458). A follow-up brain MRI on September 21, 2007, showed that
deep matter lesions appeared to be stable and that there were no
new lesions, but that there were areas of “increased signal.” (Tr.
Dr. Hoyer’s notes from a visit on February 20, 2008, state
that Riley was not doing well and had pain in her back and legs,
but she was going back to work as a nursing assistant and was
waiting for her state test results. Riley had mild difficulty with
tandem gait but was described as clinically stable. Riley declined
to have new MRIs scheduled due to cost. (Tr. 485).
medications were adjusted, and Dr. Hoyer advised Riley to apply for
assistance to start Avonex for MS treatment.
An April 11, 2008, MRI of the brain showed Riley had a stable
white matter lesion. (Tr. 335-336).
An MRI of the lumbar spine on
May 12, 2008, showed a small protruding disc at L4-L5 with minimal
encroachment on the anterior thecal sac. There were degenerative
changes at L5-S1 and a disc protrusion with “mild right-sided
neural foraminal stenosis and moderate to severe left-sided neural
Riley was involved in a motor vehicle accident on July 4,
2008, and received emergency room treatment.
had an avulsion fracture of the proximal humerus left shoulder,
acute cervical strain, left hip contusion, and abdominal pain. (Tr.
325). Riley’s shoulder was immobilized and she was referred to Dr.
Peter Torok, an orthopedist, for treatment of the fracture.
Torok saw Riley on July 10, 2010. (Tr. 559).
Riley noted some
impingement” but felt Riley could return to full duty work by July
16, 2010. (Tr. 559).
Riley saw Dr. Tonia Kusumi at the Pain Care Center on October
6, 2008, for her “long history of neck and lower back pain.” (Tr.
There was pain on palpation of the paraspinal muscles.
Riley and Dr. Kusumi discussed the pathology of the pain and prior
injections. Riley noted that, even with the steroid injections, she
prescription for Lyrica and ordered physical therapy 2-3 times per
week for four weeks. (Tr. 367-368).
Dr. Duan Pierce examined Riley on November 6, 2008. (Tr.
According to Dr. Pierce’s report, Riley was unable to bend
According to Riley’s counsel, this examination was performed as part
of a prior application for benefits.
over and get back up without difficult and there was tenderness to
palpation of the spine.
Riley’s straight leg raise test was
positive. She had weakness in her bilateral extremities, more on
her left (3/5) than on her right (4/5). He noted that the patient
would be able to work with limitations on standing no more than
“3-4 hours or lift more than 30 lbs.”
Dr. Caryn Brown, a psychologist, evaluated Riley on November
Dr. Brown performed a mental status examination and
administered the Wechsler Memory Scale (3rd edition) and concluded
that overall memory functioning fell within the normal range.
Brown diagnosed Riley with an adjustment disorder with depressed
mood and assessed a Global Assessment of Functioning (“GAF”) score
of 61.4 (Tr. 586-589).
Riley also underwent a mental status exam on July 28, 2009.
Dr. Aldo Buonanno noted that Riley had difficulty performing serial
Riley’s mood was depressed and she had crying episodes.
Buonanno diagnosed major depression and assessed a GAF of 60.5 (Tr.
Riley saw Dr. Hoyer again on August 11, 2009, and complained
Riley’s counsel represents that this evaluation also took place as a
result of a prior application for benefits.
GAF is a scoring system for measuring an individual’s overall
functional capacity. A GAF of 61 would represent some mild symptoms or some
difficulty in social, occupational, or school functioning. Diagnostic and
Statistical Manual of Mental Disorders, DSM-IV-TR, 32-34 (4th ed. 2000).
A GAF of 60 would indicate moderate symptoms or moderate difficulty in
social, occupational, or school functioning.
of muscle spasms. (Tr. 597).
In September of 2009, Dr. Dodt
ordered a cane for Riley. (Tr. 595).
Riley sought outpatient mental health treatment at the Raj
Clinic in January of 2010.
Kalapatapu evaluated Riley.
On January 11, 2010, Dr. Umamaheswara
of motivation to complete daily tasks.
Riley complained of lack
Dr. Kalapatapu noted that
she was “anxious and depressed looking.”
His assessment was
recurrent, severe major depressive disorder and generalized anxiety
Dr. Kalapatapu assessed a GAF of 50.6 (Tr. 709-711).
Wellbutrin. (Tr. 711).
Riley began seeing Dr. Albert Lee, a neurologist, on February
4, 2010, and complained of tightness in her lower extremities and
muscle spasms in her arms.7
She noted she had involuntary shaking
of her extremities and had fallen several times.
noted gait ataxia.
Dr. Lee also
Dr. Lee recommended additional testing and
noted that “the patient has definitely changed from baseline
An MRI performed on February
16, 2010, showed a stable white matter lesion in the left parietal
lobe and a new white matter lesion in the left superior frontal
lobe. (Tr. 677, 687).
A GAF of 50 would indicate serious symptoms or any serious impairment
in social, occupational, or school functioning.
Riley testified that she started seeing Dr. Lee instead of Dr. Hoyer
because she was dissatisfied with the care she received from Dr. Hoyer.
On March 2, 2010, the claimant reported to Dr. Lee that she
was having dizzy spells and was at risk for falling.
noted she might have focal motor seizures and ordered central
nervous system testing.
His impression was multiple sclerosis,
tightness and numbness as well as weakness, and bilateral carpal
tunnel syndrome. Her medication was changed from Avonex once per
week to Rebif three times per week.
(Tr. 688, 716, 743).
Riley had a series of EEGs in March 2010. Video EEGs on March
9, 2010, and March 26, 2010, were normal.
an ambulatory 72-hour EEG performed March 2, 2010, through March 5,
2010, noted a few sharp discharges and was considered an abnormal
EEG. (Tr. 697).
On June 29, 2010, Riley complained to Dr. Lee of right sided
neck pain that spread to the occipital area. She also complained of
dizzy spells that caused her to fall and collapse and left sided
headaches. (Tr. 692-694). Dr. Lee’s diagnostic impression included
multiple sclerosis, gait ataxia and falls, recurrent dizzy spells
and syncope, question of seizure disorder, history of involuntary
shaking, and lower extremity tightness, numbness, and weakness and
bilateral carpal tunnel syndrome. He noted that “[t]he patient has
flare up of symptoms and is changed from baseline neurologic
He recommended neurophysiologic studies, a
nerve conduction study, injection therapy to the lumbar spine,
Neurontin for pain control, and further follow up in the neurology
clinic. (Tr. 694).
On September 14, 2010, Dr. Lee noted that Riley’s injection
site was getting red and inflamed.
The next week, on
September 21, 2010, Riley was again evaluated by Dr. Lee. He noted
weakness and numbness in the legs in keeping with sciatica. He also
noted neck pain that extended into her arms and radiated to the
recurrent dizzy spells, unsteadiness, falling, and collapsing. (Tr.
Video-Electronystagmograpy (VENG) testing to rule out inner ear
progressive symptoms.” (Tr. 729). Two days later, on September 23,
2010, another video EEG was performed.
It resulted in normal
findings. (Tr. 725).
Riley attended physical therapy for her neck, shoulder, and
lower back pain from September 25, 2010, until November 10, 2010.
She was discharged on November 24, 2010, after
failing to show for three appointments.
“spacing out episodes” to Dr. Lee.
She further reported that her
neck pain was spreading to her shoulders and that she suffered low
back pain that radiated to her legs. (Tr. 721-724).
Dr. Lee added
a prescription for Phrenilin for headache control. (Tr. 723).
also recommended a new neurophysiologic study including an EEG to
look for beakthrough seizures and a nerve conduction study to look
for an underlying pinched nerve. (Tr. 723-24).
Dr. Salman Wali
performed the nerve conduction studies ordered by Dr. Lee on
November 4, 2010. (Tr. 721).
The study results were abnormal and
provided evidence of “predominantly sensory axonal peripheral
complaining of sharp right arm pain.
An x-ray of the shoulder
showed calcific suprasinatus tendinitis. (Tr. 741).
On April 26, 2011, after ALJ Bretthauer issued her decision in
this case, Riley’s counsel submitted additional information from
Dr. Lee to the Appeals Council. (Tr. 309).
Dr. Lee opined that
Riley suffered “from significant, reproducible fatigue of motor
function with sustainable muscle weakness on repetitive activity,
that has been demonstrated on physical examination, that results
from neurological dysfunction from areas in the central nervous
Dr. Lee further opined that Riley suffers flu
symptoms when she takes her Rebif and these symptoms can last up to
1 ½ days following an injection.
Dr. Lee indicated Riley would
miss about 6 ½ days of work per month.
Riley testified that she has completed the eleventh grade and
has not received a GED.
She lives in an apartment with her three
Her last job was as a certified nurse’s assistant.
testified that her employer made special accommodations for her by
assigning her to a patient that needed very minimal care, but there
came a point where she could not perform even that job.
further testified that she cannot work as a home companion because
she is unstable on her feet and is uncertain she could perform her
duties in an emergency.
She additionally claimed problems with
memory and stress would interfere with her work.
When asked why
she could not perform a simple job that did not require a lot of
memory and where she could stand and sit whenever she needed, Riley
indicated that she is “really weak.”
Riley’s medication was
changed to Rebif because the Avonex was not helping,
but Rebif is
taken three times per week and causes her to feel “really sick.”
When she last worked, she was on Avonex instead of Rebif.
With regard to the physical therapy ordered for her back,
Riley testified that she attended physical therapy briefly but that
it made the pain worse so she stopped going.
She also had
injections for her back but they helped with the pain for only a
When asked to describe her pain, Riley indicated
that she has pain across her lower back that goes down her left
She described the pain as shooting at times.
feet get numb.
She has burning pain between her shoulder blades.
Her arms are weak.
Her legs and
She has muscle spasms in both her arms and
Riley uses patches, heat, and rubbing for pain. At the time
of the hearing, Riley was taking muscle relaxants and Neurontin for
She was not seeing a pain management doctor but was waiting
to see Dr. Casumi.
Dr. Casumi had previously refused to see Riley
due to missed appointments, but Riley hoped the doctor would again
see her as a patient.
Riley also testified that she sees her psychiatrist, Dr.
Kalapatapu, about once a month for both therapy and medication
She cries almost daily and sometimes does not leave
her room for days.
Riley testified that she can walk about a block before
stopping, stand 20 minutes if she can move back and forth, and sit
20 to 30 minutes.
She uses a cane.
granddaughter who weights 19 pounds.
Riley cannot lift her
On an average day, she wakes
up around 6:00 a.m. and, after her boys go to school, she starts
She cleans throughout the day because she must take
If she has an appointment she goes to it.
help with the cooking, dishes, and laundry.
She is able to bathe
and dress herself. She gets groceries but takes her kids with her.
Dr. Hoyer recommended exercise, but she gets very little exercise
other than walking to the city bus and cleaning her house.
granddaughter, although she does not babysit her.
Review of Commissioner’s Decision
This Court has authority to review the Commissioner’s decision
to deny social security benefits. 42 U.S.C. § 405(g).
findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive . . . .”
Substantial evidence is defined as “such relevant evidence as
a reasonable mind might accept as adequate to support a decision.”
Richardson v. Perales, 402 U.S. 389, 401 (1971).
whether substantial evidence exists, the Court shall examine the
record in its entirety but shall not substitute its own opinion for
the ALJ’s by reconsidering the facts or re-weighing evidence. Jens
v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003).
With that in mind,
however, this Court reviews the ALJ’s findings of law de novo and
if the ALJ makes an error of law, the Court may reverse without
White v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999).
As a threshold matter, for a claimant to be eligible for DIB
or SSI benefits under the Social Security Act, the claimant must
establish that she is disabled. To qualify as being disabled, the
claimant must be unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or has lasted
or can be expected to last for a continuous period of not less than
42 U.S.C. §§ 423(d)(1)(A) and 1382(a)(1).
definition, the ALJ performs a five step evaluation:
Is the claimant performing substantial gainful activity:
If yes, the claim is disallowed; if no, the inquiry
proceeds to step 2.
Is the claimant’s impairment or combination of
impairments “severe” and expected to last at least twelve
months? If not, the claim is disallowed; if yes, the
inquiry proceeds to step 3.
Does the claimant have an impairment or combination of
impairments that meets or equals the severity of an
impairment in the SSA’s Listing of Impairments, as
described in 20 C.F.R. § 404 Subpt. P, App. 1? If yes,
then claimant is automatically disabled; if not, then the
inquiry proceeds to step 4.
Is the claimant able to perform his past relevant work?
If yes, the claim is denied; if no, the inquiry proceeds
to step 5, where the burden of proof shifts to the
Is the claimant able to perform any other work within his
residual functional capacity in the national economy: If
yes, the claim is denied; if no, the claimant is
20 C.F.R. §§ 404.1520(a)(4)(i)-(v) and 416.920(a)(4)(i)-(v); see
also Herron v. Shalala, 19 F.3d 329, 333 n. 8 (7th Cir. 1994).
In this case, the ALJ found that Riley suffered from severe
mental and physical impairments that significantly affected her
ability to work.
The ALJ further found that Riley did not meet or
medically equal one of the listed impairments, and could not
perform her past relevant work, but nonetheless retained the
residual functional capacity (“RFC”) to perform a limited range of
sedentary work as follows:
claimant is: unable to lift/carry more than 10
pounds frequently and 5 pounds occasionally;
unable to stand and/or walk for more than 2
hours in an 8-hour workday; able to sit for 6
to 8 hours in an 8-hour workday; unable to
stoop, crawl, climb, crouch, kneel or balance
concentrated exposure to extreme heat; and
cannot perform more than simple, unskilled
After considering Riley’s age, education, work experience and
RFC, the ALJ relied upon the testimony of a vocational expert and
concluded that Riley was not disabled and not entitled to DIB or
SSI because she retained the capacity to perform a significant
number of jobs despite her functional limitations.
Thus, Riley’s claim failed at step 5 of the evaluation process.
Riley believes that the ALJ committed several errors requiring
Riley argues that the ALJ improperly discredited her testimony
in violation of SSR 96-7p by relying on meaningless boilerplate
language without elaborating on which facts, if any, undermined her
The Commissioner disagrees.
Because the ALJ is best positioned to judge a claimant’s
determination only if it is patently wrong.
Skarbek v. Barnhart,
390 F.3d 500, 504 (7th Cir. 2004).
However, when a claimant
produces medical evidence of an underlying impairment, the ALJ may
unsupported by objective evidence.
Schmidt v. Barnhart, 395 F.3d
737, 745-47 (7th Cir. 2005); Indoranto v. Barnhart, 374 F.3d 470,
474 (7th Cir. 2004) (citing Clifford v. Apfel, 227 F.3d 863, 872
(7th Cir. 2000)).
“In assessing a claimant’s credibility, the ALJ
must consider subjective complaints of pain if the claimant can
establish a medically determined impairment that could reasonably
be expected to produce the pain.”
Indoranto, 374 F.3d at 474
(citing 20 C.F.R. § 404.15.29, SSR 96-7p; Clifford, 227 F.3d at
Further, “the ALJ cannot reject a claimant’s testimony about
limitations on [his] daily activities solely by stating that such
testimony is unsupported by the medical evidence.”
the ALJ must make a credibility determination that is supported by
record evidence and sufficiently specific to make clear to the
claimant, and to any subsequent reviewers, the weight given to the
claimant’s statements and the reasons for the weight.
Barnhart, 336 F.3d 535, 539-40 (7th Cir. 2003).
In evaluating the credibility of statements supporting a
requirements of SSR 96-7p.
42 (7th Cir. 2002).
Steele v. Barnhart, 290 F.3d 936, 941-
This ruling requires ALJs to articulate
“specific reasons” behind credibility evaluations; the ALJ cannot
considered” or that “the allegations are (or are not) credible.”
SSR 96-7p. Furthermore, the ALJ must consider specific factors when
assessing the credibility of an individual’s statement including:
The individual’s daily activities;
intensity of the individual’s pain or other
Factors that precipitate and aggravate the
The type, dosage, effectiveness, and side
effects of any medication the individual takes
or has taken to alleviate pain or other
individual receives or has received for relief
of pain or other symptoms;
individual uses or has used to relieve pain or
other symptoms (e.g., lying flat on his or her
back, standing for 15 to 20 minutes every
hour, or sleeping on a board); and
Any other factors concerning the individual’s
functional limitations and restrictions due to
pain or other symptoms.
SSR 96-7p; Golembiewski, 322 F.3d 912, 915-16 (7th Cir. 2003).
Here, ALJ Bretthauer determined that “the claimant’s medically
determinable impairments could reasonably be expected to cause some
concerning the intensity, persistence, and limiting effects of
these symptoms are not credible to the extent they are inconsistent
with the above residual functional capacity assessment.” (Tr. 55).
Nearly identical language was criticized by the Seventh Circuit in
Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012).
criticism will not be repeated here.
The boilerplate language
utilized by ALJ Bretthauer is unhelpful at best, and by itself,
such language is inadequate to support a credibility finding.
Richison v. Astrue, No. 11-2274, 2012 WL 377674 (7th Cir. 2012).
Where boilerplate language such as that utilized by the ALJ is
accompanied by additional reasons, a credibility determination need
not be disturbed.
The Commissioner argues that the ALJ’s
opinion contains more that mere boilerplate language in support of
her credibility determination.
According to the Commissioner, the
ALJ has offered several reasons for her credibility determination.
The Commissioner directs this Court to the record at pages 49-54.
This is essentially the entire substantive opinion of the ALJ prior
to her credibility determination, but this Court’s review cannot
produce a single reference to credibility other than that provided
the ALJ’s statement of the legal standard to be applied and in the
boilerplate referenced above.
Certainly, there are facts included
which the ALJ could have utilized in supporting her credibility
determination, but the ALJ did not make the necessary connections.
See Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009)(where an
ALJ failed to analyze the factors set forth in SSR 96-7p, the ALJ
did not build a logical bridge between the evidence and his
conclusion that the claimant’s testimony was not credible). Because
the ALJ failed to build a logical bridge between the evidence and
her determination that the claimant’s testimony was not credible,
remand is required.
Riley’s Remaining Arguments
Having found remand necessary on the basis of the ALJ’s
credibility determination, this Court finds no compelling reason to
address Riley’s remaining arguments in detail.
This Court has
considered Riley’s request that this Court award benefits rather
than remand the case for additional proceedings but finds remand
more appropriate here. On remand, the ALJ is instructed to utilize
the proper onset date, August 26, 2008.
Furthermore, the ALJ
should consider all of the evidence in the record, including Dr.
Lee’s report from April of 2011, and, if necessary, give the
parties the opportunity to expand the record so that the ALJ may
build a logical bridge between the evidence and her conclusions.
Because Dr. Lee’s report has a direct bearing on the ALJ’s analysis
at step 3, the ALJ will need to consider and address whether this
equivalence under SSR 96-6p or necessitates any change in her step
For the reasons set forth above, the Commissioner of Social
Security’s final decision is REVERSED and this case is REMANDED for
proceedings consistent with this opinion pursuant to sentence four
of 42 U.S.C. section 405(g).
DATED: August 05, 2013
/s/ Rudy Lozano, Judge
United States District Court
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