Bixler v. Commissioner of Social Security

Filing 30

OPINION AND ORDER: The ALJ erred in the subjective symptom analysis and the RFC determination. For these reasons, the court remands the case for further consideration. Signed by Judge Joseph S Van Bokkelen on 9/23/2019. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
Cynthia B.,
Plaintiff,
v.
Case No. 4:18-cv-1-JVB-JEM
ANDREW SAUL,
Commissioner of the
Social Security Administration,
Defendant.
OPINION AND ORDER

Plaintiff Cynthia B. seeks judicial review of the Social Security Commissioner’s decision

denying her disability benefits and asks this Court to remand the case. For the reasons below, this
Court remands the Administrative Law Judge’s decision.

A. Overview of the Case
Plaintiff applied for disability insurance benefits under Title II. In her application,
Plaintiff alleged that she became disabled on January 1, 2012. (R. at 13.) After a video hearing in
2015, the Administrative Law Judge (“ALJ”) found that Plaintiff suffered from the severe
impairments of obesity, asthma, and heart failure. (R. at 15.) The ALJ found that Plaintiff is
capable of performing her past relevant work as a retail clerk. (R. at 20.) Therefore, the ALJ
found her to be not disabled from July 1, 2012, the alleged onset date, through the date of the
decision. (Id.) This decision became final when the Appeals Council denied Plaintiff’s request
for review. (R. at 1.)

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B. Standard of Review
This Court has authority to review the Commissioner’s decision under 42 U.S.C. §
405(g). The Court will ensure that the ALJ built an “accurate and logical bridge” from evidence
to conclusion. Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014). This requires the ALJ to
“confront the [plaintiff’s] evidence” and “explain why it was rejected.” Thomas v. Colvin, 826
F.3d 953, 961 (7th Cir. 2016). The Court will uphold decisions that apply the correct legal
standard and are supported by substantial evidence. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d
345, 351 (7th Cir. 2005). Evidence is substantial if “a reasonable mind might accept [it] as
adequate to support [the ALJ’s] conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 28 L. Ed. 2d 842 (1971).

C. Disability Standard
The Commissioner follows a five-step inquiry in evaluating claims for disability benefits
under the Social Security Act:
(1) Whether the claimant is currently employed; (2) whether the claimant has a
severe impairment; (3) whether the claimant’s impairment is one that the
Commissioner considers conclusively disabling; (4) if the claimant does not have a
conclusively disabling impairment, whether he can perform his past relevant work;
and (5) whether the claimant is capable of performing any work in the national
economy.
Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012). The claimant bears the burden of proof at
every step except step five. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000).

D. Analysis
Plaintiff contends that the ALJ committed four reversible errors: the ALJ failed to
analyze Plaintiff’s heart disease under the proper listing; the ALJ erred in the subjective
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symptom analysis; the ALJ failed to analyze Plaintiff’s impairments in combination; and the ALJ
erred in the RFC determination in failing to consider the grid rules.

(1) Grid Rules
As an initial matter, Plaintiff argues that the ALJ should have found her to be disabled, as
her RFC would lead to a finding of not disabled using the grid rules. However, the ALJ did not
need to turn to the grid, as the ALJ found Plaintiff was not disabled at step four in finding that
she could perform past relevant work. Townsend v. Barnhart, 28 F3d. Appx. 531, 539 (7th Cir.
2002). Since this case is being remanded for further consideration in other areas, the ALJ should
address the grid rules if it is determined that Plaintiff cannot perform her past relevant work.

(2) Subjective Symptom Analysis
Plaintiff asserts that the ALJ erred in weighing her subjective symptoms. An ALJ’s
subjective symptom analysis will be afforded “considerable deference” and will be overturned
only if it is “patently wrong.” Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006)
(citations omitted). In addressing Plaintiff’s subjective symptoms, the ALJ must consider all the
evidence in the record. 20 C.F.R. § 404.1529(c)(3). Specifically, the ALJ is directed to consider
the following factors:
(i) daily activities;
(ii) the location, duration, frequency, and intensity of the symptoms;
(iii) precipitating and aggravating factors;
(iv) the type, dosage, effectiveness, and side effects of any medication taken;
(v) other treatment received for relief of symptoms;

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(vi) any measures used to alleviate symptoms; and
(vii) other factors concerning limitations and restrictions due to symptoms
20 C.F.R. §§ 404.1529(c)(3)(i)-(vii). As long as the ALJ’s subjective symptom determinations
have some support in the record and are not patently wrong, they are upheld. See Diaz v. Chater,
55 F.3d 300, 308 (7th Cir. 1995).
The ALJ found that Plaintiff’s subjective symptoms were “not entirely credible for the
reasons explained in this decision.” (R. at 19.) The ALJ explained that Plaintiff’s mental health
treatment was conservative, her asthma was stable, and tests showed normal physical
functioning. (Id.) Moreover, the ALJ found that Plaintiff could still perform activities of daily
living. (Id.) The ALJ noted that she was capable of preparing simple meals, cleaning, doing
laundry, washing dishes, mopping, sweeping, driving, shopping, paying bills, watching
television, and making jewelry. (Id.)
Plaintiff takes particular issue with the ALJ’s treatment of her activities of daily living.
The Seventh Circuit has repeatedly stated that an ability to complete certain activities of daily
living does not on its own translate to an ability to work a full-time job. See Moore v. Colvin, 743
F.3d 1118, 1126 (7th Cir. 2014); Hughes v. Astrue, 705 F.3d 276, 278 (7th Cir. 2013); Roddy v.
Astrue, 705 F.3d 631, 639 (7th Cir. 2013). An individual’s “ability to perform daily activities,
especially if they can be done only with significant limitations, does not necessarily translate into
an ability to work full-time.” Roddy, 705 F.3d at 639; Bjornson v. Astrue, 671 F.3d 640, 647 (7th
Cir. 2012).
The ALJ found that Plaintiff’s ability to complete a multitude of daily activities “show[s]
that [her] impairments are not disabling.” (R. at 19.) The ALJ failed to consider how Plaintiff
completes her daily activities. Although Plaintiff was capable of doing cleaning, laundry, and

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dishes, she could not complete them in a timely fashion. Plaintiff testified that sometimes it took
her two to three days to wash the dishes, as she needed to take frequent breaks. (R. at 48.) She
stated that it took her a week to finish laundry due to her back and neck pain. (R. at 49.) She also
stated that she mostly made frozen dinners, but if she did cook dinner, she cooked while sitting
in a roller chair as she could not stand long enough to complete the meal. (R. at 235.) Further,
although Plaintiff was capable of driving herself to shop, she stated that she had to stop and sit
while she was shopping. (R. at 236.) The ALJ mischaracterized Plaintiff’s ability to complete
activities of daily living in analyzing her subjective symptoms. More problematically, the ALJ
specifically stated that Plaintiff’s ability to complete activities of daily living “show that [her]
impairments are not disabling.” (R. at 19.) The ALJ cannot say that Plaintiff’s ability to complete
the laundry over the course of a week means that she can perform a full-time job. The ALJ
mischaracterized evidence of daily activities and misused Plaintiff’s ability to perform those
activities in finding that she was not disabled. This requires remand.

(3) RFC
Plaintiff also contends that the ALJ cherry picked evidence in the RFC determination.
The ALJ has an obligation to consider the relevant medical evidence but cannot “simply cherrypick facts that support a finding of non-disability while ignoring evidence that points to a
disability finding.” Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010).
The ALJ characterized the treatment of Plaintiff’s severe impairment of heart failure as
“successful” with “stable functioning.” (R. at 18.) To support this assertion, the ALJ noted that
April 2012 x-rays showed stable cardiomegaly. (Id.) Moreover, the ALJ noted that the December
2013 consultative examination showed full strength, a negative straight leg raise test, and normal

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tandem and heel and toe walking. (Id.) The ALJ further found that Plaintiff had a non-obstructive
two-vessel disease, and her stress test showed “a normal ejection fraction at 60 percent and low
function capacity of less than 3 METs.” (R. at 19.) The ALJ also characterized Plaintiff’s asthma
as “stable,” noting that her pulmonary function testing “showed a functional capacity 80 percent
of the predicted value.” (R. at 18–19.)
The ALJ partially relies on the consultative examination to state that Plaintiff’s heart
failure and asthma did not require further limitations. (R. at 18–19.) The ALJ gave this
consultative opinion “little weight” finding it vague, yet the ALJ seems to rely on it, at least
partially, in finding Plaintiff is not disabled. (R. at 19.) This same consultative report found
dyspnea with walking less than 20 feet, along with prolonged expirations. (R. at 520.) Other
medical evidence showed that Plaintiff continued to use a nebulizer four times a day, along with
two separate inhalers used twice and four times a day. (R. at 578–79.) However, the ALJ does
not discuss this information in the RFC determination.
The ALJ also fails to discuss Plaintiff’s abnormal stress test in 2015. (R. at 573.) This
stress test showed low functional capacity, PVCs at stress, and a hypertensive response. (R. at
576). During the EKG and stress test in March 2015, Plaintiff experienced shortness of breath,
fatigue, and leg fatigue, which resolved with rest. (R. at 586.) Her blood pressure response was
hypertensive, and her functional capacity was less than half of average and characterized as
“very low.” (R. at 586–87.) Plaintiff’s left ventricle was also mildly increased with hypertrophy,
along with an impaired relaxation pattern. (Id.) In 2015, Plaintiff also noted heart palpitations
occurring three to four times a week, along with shortness of breath upon exertion, and a
productive cough. (R. at 575.) Her medical records further note that her hypertension “may be

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inducing some mild diastolic dysfunction.” (R. at 577.) In 2015, Plaintiff’s exertional dyspnea
worsened. (R. at 580.)
The ALJ failed to discuss this medical evidence. While the ALJ is not required to discuss
every piece of medical evidence, he cannot cherry pick the evidence and only discuss that which
supports his opinion. The ALJ also failed to discuss the large amount of evidence regarding her
non-severe impairments. “[I]n assessing RFC, the adjudicator must consider limitations and
restrictions imposed by all of an individual’s impairments, even those that are not ‘severe.’” SSR
96-8p, 1996 SSR LEXIS 5 at *14, 1996 WL 374184, at *5, see Paar v. Astrue, No. 09 C 5169,
2012 Dist. LEXIS 4948, 2012 WL 123596, at *13 (N.D. Ill. Jan. 17, 2012).
Plaintiff’s medical records show increased difficulties with urinary difficulties, urinary
tract infections, unexplained nausea and diarrhea, and gastrointestinal distress. (R. at 537–45,
572–608.) Plaintiff testified to using a catheter frequently due to a knot in her urethra, which is
supported by the medical evidence. (Id.) She had reports of blood in her stool and uncontrollable
diarrhea. (Id.) However, the ALJ fails to discuss the effect that these nonsevere impairments may
or may not have on her RFC. The Court cannot conduct meaningful review where the ALJ fails
to discuss the impact of all Plaintiff’s impairments in the RFC.

(4) Other Issues
Plaintiff also raises additional issues regarding subjective symptoms and the RFC.
Because the ALJ erred in evaluating Plaintiff’s daily activities and in failing to consider all of the
relevant medical evidence, remand is appropriate. Proper analysis of the evidence may alter the
rest of the ALJ’s decision. The Court remands this case due to a failure to properly analyze
Plaintiff’s daily activities or to consider the medical evidence as a whole.

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(E) Conclusion
The ALJ erred in the subjective symptom analysis and the RFC determination. For these
reasons, the court remands the case for further consideration.

SO ORDERED on September 23, 2019.

s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE

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