WILSON v. ASTRUE

Filing 21

ENTRY ON JUDICIAL REVIEW: For the reasons set forth above, the Commissioner's decision is REVERSED and this case is REMANDED for further proceedings consistent with this Entry ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 1/28/2013.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

SUSAN WILSON,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Cause No. 1:11-cv-1281-WTL-TAB

ENTRY ON JUDICIAL REVIEW
Plaintiff Susan Wilson requests judicial review of the final decision of Defendant
Michael J. Astrue, Commissioner of Social Security (“Commissioner”), denying her applications
for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). The Court
rules as follows.
I. PROCEDURAL HISTORY
Wilson filed her applications for DIB and SSI on May 17, 2007, alleging disability
beginning on June 21, 2006, due to low back pain, arthritis, diabetes mellitus, obesity,
depression, borderline personality disorder, post-traumatic stress disorder, and fibromyalgia. Her
application was denied initially and upon reconsideration, whereupon she requested and was
granted a hearing before an ALJ. Wilson was represented by counsel at the hearing, which was
held on December 22, 2009. Wilson testified at the hearing, as did her daughter, Sarah Smith,
and a vocational expert. On April 9, 2010, the ALJ rendered his decision concluding that Wilson
was not disabled as defined by the Social Security Act (“the Act”). The Appeals Council denied

Wilson’s request for review of the ALJ’s decision, and Wilson filed this timely action for judicial
review.
II. EVIDENCE OF RECORD
The specifics of Wilson’s medical records are aptly summarized in the ALJ’s decision,
and neither party objects to that summary. Accordingly, there is no need for the Court to include
a comprehensive summary of the evidence of record here; rather, the Court will discuss
particular medical records as relevant in the discussion section below.
III. APPLICABLE STANDARD
Disability is defined as “the inability to engage in any substantial gainful activity by
reason of a medically determinable mental or physical impairment which can be expected to
result in death, or which has lasted or can be expected to last for a continuous period of at least
twelve months.” 42 U.S.C. § 423(d)(1)(A). In order to be found disabled, a claimant must
demonstrate that her physical or mental limitations prevent her from doing not only her previous
work but any other kind of gainful employment that exists in the national economy, considering
her age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).
In determining whether a claimant is disabled, the Commissioner employs a five-step
sequential analysis. At step one, if the claimant is engaged in substantial gainful activity, she is
not disabled, despite her medical condition and other factors. 20 C.F.R. § 404.1520(b).1 At step
two, if the claimant does not have a “severe” impairment (i.e., one that significantly limits her
ability to perform basic work activities), she is not disabled. 20 C.F.R. § 404.1520(c). At step
three, the Commissioner determines whether the claimant’s impairment or combination of

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The Code of Federal Regulations contains separate sections relating to DIB and SSI that are
identical in all respects relevant to this case. For the sake of simplicity, this Entry contains citations
to DIB sections only.

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impairments meets or medically equals any impairment that appears in the Listing of
Impairments, 20 C.F.R. pt. 404, subpt. P, App. 1, and whether the impairment meets the twelvemonth duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. § 404.1520(d).
At step four, if the claimant is able to perform her past relevant work, she is not disabled. 20
C.F.R. § 404.1520(f). At step five, if the claimant can perform any other work in the national
economy, she is not disabled. 20 C.F.R. § 404.1520(g).
In reviewing the ALJ’s decision, the ALJ’s findings of fact are conclusive and must be
upheld by this court “so long as substantial evidence supports them and no error of law
occurred.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). “Substantial evidence
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion,” id., and this court may not reweigh the evidence or substitute its judgment for that
of the ALJ. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). The ALJ is required to
articulate only a minimal, but legitimate, justification for her acceptance or rejection of specific
evidence of disability. Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004). In order to be
affirmed, the ALJ must articulate her analysis of the evidence in her decision; while she “is not
required to address every piece of evidence or testimony,” she must “provide some glimpse into
her reasoning . . . [and] build an accurate and logical bridge from the evidence to her
conclusion.” Id.
IV. THE ALJ’S DECISION
The ALJ found at step one that Wilson had not engaged in substantial employment since
September 30, 2009. At step two, the ALJ concluded that Allen had the severe impairments of
low back pain, arthritis, diabetes mellitus, obesity, depression, borderline personality disorder,
and post-traumatic stress disorder. However, at step three, the ALJ found that none of Wilson’s

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severe impairments, individually or in combination, met or medically equaled a listed
impairment.
The ALJ then concluded that Wilson retained the residual functional capacity (“RFC”) to
perform a range of light work that would require her to lift and carry up to 20 pounds
occasionally and 10 pounds frequently; stand for six hours in an eight hour work day; walk for
six hours in an eight hour work day; sit for six hours in an eight hour work day; push and pull up
to 35 pounds; and occasionally stoop and bend. The ALJ found that Wilson’s impairments
moderately limited her abilities to understand and carry out detailed instructions, sustain an
ordinary routine without special supervision, and interact appropriately with the general public,
but concluded that Wilson retained the ability to remain on-task for at least 90% of an eight-hour
work day and to perform work that exposed her to contact with the general public for no more
than 20% of an eight-hour work day. Finally, the ALJ concluded that Wilson’s impairments left
her unable to climb ladders, ropes, and scaffolds, or to perform work including more than
concentrated exposure to unprotected heights or moving machinery.
The ALJ determined at step four that, given her residual functional capacity, Wilson was
not capable of performing her past relevant work. Finally, at step five, the ALJ found that, given
Wilson’s RFC, age, education, and experience, she was capable of performing a significant
number of jobs in the national economy and therefore was not disabled.
V. DISCUSSION
Wilson argues that the ALJ improperly rejected her claim of disabling pain. The ALJ
explained his reason for doing so as follows:
The claimant’s allegations that she is unable to sit or stand due to pain are not
consistent with the evidence of record. As noted above, the claimant cooks, does
laundry, drives, does lawn work and cleans her home on a daily or weekly basis.
I recognize that these activities require some ability to sit and stand. The claimant
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is able to perform the combination of sitting and standing required to go to
church. Similarly, although it has been reported that the claimant is unable to
walk more than one or two blocks before needing to stop, the evidence of record
indicates that her gait has routinely been found to be normal during times relevant
to this decision. The claimant retained the ability to perform the walking required
to attend a cookout at her daughter’s house. After careful consideration of the
evidence, I find that the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, the claimant’s
statements 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.2
Record at 22. After summarizing Wilson’s medical records, the ALJ then stated:
The claimant has alleged that she is unable to sit or stand due to pain. It has been
reported that the claimant is unable to walk more than 1 to 2 blocks before
needing to stop. I find that the severity reflected in these subjective allegations is
not supported by the evidence of record. The claimant reported on June 12, 2007,
that she cooked, did laundry, drove and cleaned her home on a daily or weekly
basis. By October 2, 2007, the claimant’s functionality had improved to an extent
to allow her to perform lawn work on a daily or weekly basis. I recognize that all
of these activities generally require an ability to sit and stand for some amount of
time. The evidence of record also establishes that the claimant periodically
attends church. I recognize that this activity also invariably requires some
effective combination of sitting and standing. The claimant retained the ability to
perform the sitting and standing required to attend a cookout at her daughter’s
house during a time relevant to this decision. Although it has been reported that
the claimant is unable to walk more than 1 to 2 blocks before needing to stop, Ms.
Conner [a nurse practitioner] has regularly found that the claimant’s gait was
normal upon examination. Dr. Dzera would also record that the claimant’s gait
was normal on August 3, 2009. Dr. Moneyhun concluded on October 1, 2007 that
the claimant is able to care for herself and manage her own affairs. The claimant
June 29, 2007 MRI was found to contain no evidence of any overall stenosis or
significant focal impingement. The claimant retained the ability to go places with
her grandchildren and daughters during the times relevant to this decision. She
would report in March of 2008 that she was so busy with her children and
grandchildren that she could not even get depressed. The evidence of record also
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With regard to this final sentence, the Seventh Circuit recently has criticized this
language as Ameaningless boilerplate seen frequently in decisions from ALJs,@ has Acriticized this
template as unhelpful,@ and has Aexplained that it backwardly >implies that the ability to work is
determined first and is then used to determine the claimant=s credibility.=@ Shauger v. Astrue,
675 F.3d 690, 696 (7th Cir. 2012) (quoting Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012)
and citing Parker v. Astrue, 597 F.3d 920, 921-22 (7th Cir. 2010)). ACredibility findings must
have support in the record, and hackneyed language seen universally in ALJ decisions adds
nothing.@ Shauger, 675 F.3d at 694 (citing Punzio v. Astrue, 630 F.3d 704, 709 (7th Cir.2011)
and Parker, 597 F.3d at 921-22).
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indicates that the claimant would frequently spend time baby-sitting her
grandchildren.
Id. at 29-30. Finally, in support of his determination that Wilson could occasionally stoop and
bend, the ALJ noted that Wilson “has retained the ability to drive” and that “getting into and out
of a vehicle invariably requires some level of effective stooping and bending.” Further, he noted
that Wilson “also has retained the ability to perform the stooping and bending required to
perform lawn work on a daily or weekly basis” and that she “would spend time serving as a baby
sitter for her grandchildren” which “invariably required [her] to stoop and bend with some
frequency.” Id.
As the above passages demonstrate, the ALJ discredited Wilson’s claim of disabling pain
almost entirely because she can perform some household activities and engage in occasional
social activities. The Seventh Circuit has “‘cautioned the Social Security Administration against
placing undue weight on a claimant’s household activities in assessing the claimant’s ability to
hold a job outside the home.’” Craft v. Astrue, 539 F.3d 668, 680 (7th Cir. 2008) (quoting
Mendez v. Barnhart, 439 F.3d 360, 362 (7th Cir. 2006)). When considering daily activities as
evidence of a claimant’s RFC, an ALJ must consider not only the nature of the activities, but
their duration and impact on the claimant. Id. (finding that ALJ erred in emphasizing claimant’s
ability to perform household chores but ignoring that he performed them with great difficulty, for
short periods of time, and was exhausted afterward). See also Clifford v. Apfel, 227 F.3d 863,
872 (7th Cir. 2000). Here, the ALJ fails to acknowledge that in the documents in which she
states she can do household chores, Wilson also explains that she does them very slowly, that she
takes “a lot of breaks,” and that she requires naps and pain medication afterwards. It was
disingenuous of the ALJ to equate Wilson’s description of her activities as simply doing yard
work and cleaning her house without acknowledging her assertion that doing so takes a toll on
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her physically. In addition, the ALJ placed a great deal of emphasis on the fact that Wilson
sometimes cares for her grandchildren. However, caring for a child in the home does not by
itself equate to the ability to work outside the home, as babysitting presents flexibility and
opportunities for rest not available in the workplace. Gentle v. Barnhart, 430 F.3d 865, 867-68
(7th Cir. 2005). The record does not suggest that Wilson was providing full-time childcare, but
rather that she would babysit on an occasional basis; the record also reflects that doing so was
difficult for Wilson, both physically and mentally. Finally, while the ALJ acknowledged
evidence indicating Wilson was unable to walk more than one or two blocks without stopping to
rest, he discredited that evidence in favor of evaluations describing Wilson as having a “normal
gait.” The fact that Wilson’s gait was normal when observed during a medical visit says nothing
about her ability to walk for a sustained period of time; Wilson did not claim that she walked
with a limp or some other abnormal gait, but rather that she needed to rest after walking for more
than a block or two.
The Seventh Circuit has made clear that ability to perform minimal household chores,
engage in periodic social activities, and care for young children does not by itself equate to
residual functional capacity to work in the national economy. See, e.g., Carradine v. Barnhart,
360 F.3d 751 (7th Cir. 2004); Gentle 430 F.3d at 867-68. This is especially so when, as here, the
evidence demonstrates that the claimant is able to complete those tasks only with great strain.
See Craft, 539 F.3d at 680. The ALJ impermissibly based his credibility determination on these
factors, requiring remand.
On remand, the ALJ also should reexamine his determination regarding Wilson’s ability
to remain on-task without special supervision for 90% of a work day. In support of that
determination, the ALJ noted that Wilson once complained during a therapy session that her

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daughter expected Wilson to babysit without warning. The ALJ reasoned that Wilson’s ability
“to summon the motivation to perform the task, without any advance warning, generally
indicates that the claimant would be off task less than 10% of the time throughout the workday.”
Id. This bare conclusion disregards evidence suggesting that being called on to babysit without
notice caused great strain on Wilson. It is also illogical. The fact that Wilson apparently rose to
the occasion and cared for her grandchildren—of unspecified ages, an unspecified number of
times, and for unspecified periods of time—simply cannot be equated with remaining on task
90% of the time week after forty-hour work week.
Wilson also contends on appeal that the ALJ erred by citing only evidence supporting his
decision and specifically by giving short shrift to an evaluation by Dr. Furman Wallace, Jr.
Because the ALJ must consider the entire record when deciding the case on remand, it is not
necessary for the Court to address this issue here. The Court trusts the ALJ to give proper
consideration to all the evidence on remand and to weigh it—and resolve the matter—consistent
with this order and with the law of this Circuit.
VI. CONCLUSION
For the reasons set forth above, the Commissioner’s decision is REVERSED and this
case is REMANDED for further proceedings consistent with this Entry.
SO ORDERED. 01/28/2013

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

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