WARE v. ASTRUE

Filing 19

Decision on Judicial Review: Because the ALJ's decision that Mr. Ware is not disabled is supported by substantial evidence, the court AFFIRMS the Commissioner's decision (see Decision for details). Signed by Magistrate Judge Debra McVicker Lynch on 9/25/2013.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
TIMOTHY L. WARE,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security,
Administration,
Defendant.

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) CASE NO.: 1:12-cv-1081-DML-TWP
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Decision on Judicial Review
Plaintiff Timothy L. Ware applied in July 2009 for Disability Insurance
Benefits (DIB) under Title II of the Social Security Act, alleging that he has been
disabled since September 2, 2007. Acting for the Commissioner of the Social
Security Administration following a hearing on October 19, 2011, an administrative
law judge (“ALJ”) found that Mr. Ware is not disabled. The national Appeals
Council denied review of the ALJ’s decision on June 5, 2012, rendering the ALJ’s
decision for the Commissioner final. Mr. Ware timely filed this civil action under 42
U.S.C. § 405(g) for review of the Commissioner’s decision. The parties consented to
the magistrate judge conducting all proceedings and ordering the entry of judgment
in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
Mr. Ware seeks remand of the Commissioner’s decision on the grounds that
the ALJ’s (a) credibility determination did not comply with Social Security Ruling
96-7p and (b) residual functional capacity determination did not properly account

for Mr. Ware’s breathing difficulties. The court finds that the ALJ articulated
sufficient grounds to support his evaluation of Mr. Ware’s credibility and his
functional capacity. Accordingly, the Commissioner’s decision is AFFIRMED.
Background
To prove disability, a claimant must show that he 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 twelve months.” 42
U.S.C. § 423(d)(1)(A). The Social Security Administration (“SSA”) has implemented
this statutory standard by, in part, prescribing a five-step sequential evaluation
process for determining disability. 20 C.F.R. § 404.1520.
The ALJ decided that despite Mr. Ware’s back pain and breathing problems
associated with degenerative disc disease and chronic obstructive pulmonary
disease, he retains the capacity to: (a) lift and carry up to 50 pounds occasionally
and 25 pounds frequently; (b) sit for 8 hours in a work day and stand and walk up to
six hours in a work day; (c) occasionally bend, stoop, kneel, crawl, and climb stairs;
(c) crouch and squat up to 10 percent of a work day; and (d) frequently push and
pull. He found too that Mr. Ware cannot climb ladders, ropes, or scaffolds; must
avoid exposure to unprotected heights; and must avoid “concentrated exposure to
extremes of heat, cold, high humidity, fumes, odors, gases, and dust.” (R. 28). With
this RFC and based on the testimony of a vocational expert, the ALJ decided at step
five that Mr. Ware was not disabled because there are a substantial number of jobs

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available in Indiana, as a laundry worker and packager, consistent with these
functional requirements.
This RFC reflects the opinion of a medical expert who testified at the hearing
and the ALJ’s decision not to accept Mr. Ware’s description of more limiting effects
of his back and breathing problems.
Judicial review of the ALJ’s findings is deferential. We must affirm if no
error of law occurred and if the findings are supported by substantial evidence.
Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). Substantial evidence
means evidence that a reasonable person would accept as adequate to support a
conclusion. Id. The standard demands more than a scintilla of evidentiary support,
but does not demand a preponderance of the evidence. Wood v. Thompson, 246 F.3d
1026, 1029 (7th Cir. 2001).
Analysis
1.

The ALJ’s credibility determination is
sufficiently grounded in the evidence.

Social Security Ruling 96-7p prescribes the appropriate process for
evaluating credibility and requires an ALJ to consider a claimant’s subjective
complaints in light of the relevant objective medical evidence, as well as any other
pertinent evidence. That evidence includes the claimant’s daily activities, the
severity and intensity of the claimant’s symptoms, precipitating and aggravating
factors, medication, treatment, and other measures to relieve the person’s
symptoms and their efficacy and side-effects, and any other factors relevant to
functional limitations from pain or other symptoms. See also 20 C.F.R. §
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404.1529(c)(3). Because the ALJ sees and hears the claimant, his assessment of the
claimant’s credibility is entitled to special deference from the court. Craft v. Astrue,
539 F.3d 668, 678 (7th Cir. 2008). The court’s role is “limited to examining whether
the ALJ’s determination was ‘reasoned and supported,’” and it may not overturn the
ALJ’s finding unless it is “patently wrong.” Elder v. Astrue, 529 F.3d 408, 413-14
(7th Cir. 2008). “It is only when the ALJ’s determination lacks any explanation or
support that [the court] will declare it to be patently wrong and deserving of
reversal.” Id. (internal citations omitted).
Mr. Ware argues that the ALJ’s evaluation of his credibility is legally
erroneous because the ALJ did not “articulate [his] consideration of each of the six
factors enumerated in [Social Security Ruling 96-7p],” and his decision does not
reflect the weighing or balancing of specific evidence against the specific factors.
(Dkt. 15 at pp. 11-14). But contrary to Mr. Ware’s arguments, it is not necessary
that the ALJ recite findings on every factor, or that he discuss every piece of
evidence that might bear on credibility, or that he specify exactly which of the
claimant’s statements were not credible. Sawyer v. Colvin, 512 Fed. Appx. 603 at *5
(7th Cir. 2013) (unpublished) (the principle that ALJs are not required to discuss
every piece of evidence applies to a credibility assessment); Jens v. Barnhart, 347
F.3d 209, 213 (7th Cir. 2003) (ALJ need not specify which statements were
incredible so long as the overall record adequately supports the credibility finding);
Ervin v. Astrue, 2009 WL 2762840 at *7 (S.D. Ind. Aug. 27, 2009) (ALJ need not
recite findings on each factor).

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Here, the ALJ’s decision provides sufficient insight into the bases for his
negative credibility determination, and the reasons outlined by the ALJ rationally
reflect negatively on Mr. Ware’s credibility. With respect to Mr. Ware’s allegations
of disabling back pain, the ALJ noted that (a) a radiograph of the lumbar spine was
“entirely normal,” (b) no medical testing supported complaints of neuropathy, (c)
Mr. Ware’s only treatment regimen was an over-the-counter pain reliever that
alleviated his pain to a “modest” 5 on a 1-10 scale, (d) his physical examination
showed he walked normally and retained normal gross and fine motor function, and
(e) he had tried to minimize his participation in daily living activities by claiming
that his wife took care of all cooking, cleaning, and shopping, but his wife had
stated Mr. Ware helped with household chores.
With respect to Mr. Ware’s testimony regarding his breathing difficulties, the
ALJ cited testing and treatment records that showed the absence of any serious
pulmonary problem. He also stressed that Mr. Ware had not used an inhaler in
over one year, thus again suggesting that Mr. Ware’s breathing problems do not
limit Mr. Ware’s capacity to work as severely as he claimed. Mr. Ware claims that
he did not use an inhaler because he could not afford that treatment. But as the
Commissioner points out—and Mr. Ware does not challenge—Mr. Ware chose to
spend money on a pack-a-day cigarette smoking habit and on marijuana, which he
also smoked regularly, despite acknowledging that smoking exacerbated his
breathing difficulties.

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The court finds that the ALJ articulated relevant evidence that supports his
credibility assessment. It is not patently wrong.
2.

The ALJ’s restriction to work environments free of
respiratory irritants and extremes in temperature and
humidity is supported by substantial evidence.

Mr. Ware contends that the RFC is erroneous because the ALJ’s decision does
not explain how a person like Mr. Ware, who says he becomes short of breath taking
a shower, possibly can work a full-time job at the medium level of exertion. The
ALJ is required to include in the RFC only those limitations on work capacity that
he finds are supported by the record. As noted above, the ALJ determined that Mr.
Ware’s descriptions of his breathing problems and the limitations they impose on
him were not credible in light of the overall record, particularly because the medical
evidence showed only mild pulmonary dysfunction. The ALJ relied on the hearing
testimony of Dr. Boyce that Mr. Ware’s breathing problems can be accommodated
by restricting his work environment to one free of respiratory irritants and
extremes in temperature and humidity, and he included those restrictions in his
RFC. It is thus supported by substantial evidence and the court finds no basis for
reversal.
Conclusion
Because the ALJ’s decision that Mr. Ware is not disabled is supported by
substantial evidence, the court AFFIRMS the Commissioner’s decision.
So ORDERED.
09/25/2013
Date: _____________________
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____________________________________
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana

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