HENSLEY v. COLVIN

Filing 23

ORDER reversing the decision of the Commissioner and remanding this cause to the Commissioner for further proceedings consistent with this Entry. SEE ORDER. Signed by Judge William T. Lawrence on 3/13/2015. (BGT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ALICE M. HENSLEY,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

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Cause No. 1:14-cv-125-WTL-MJD

ENTRY ON JUDICIAL REVIEW
Plaintiff Alice M. Hensley requests judicial review of the final decision of the Acting
Commissioner of the Social Security Administration (the “Commissioner”), denying her
application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act
(the “Act”). The Court now rules as follows.
I.

PROCEDURAL HISTORY

Hensley filed her application for DIB on January 14, 2011, alleging disability beginning
April 15, 2010, due, in large part, to back pain and related symptoms. Hensley’s application was
initially denied on March 10, 2011, and again upon reconsideration on July 19, 2011. Thereafter,
Hensley requested a hearing before an Administrative Law Judge (“ALJ”). The hearing was held
on July 17, 2012, via video conference before ALJ Roxanne Fuller. Hensley and her counsel
appeared in Indianapolis, Indiana, and the ALJ presided over the hearing from Falls Church,
Virginia. During the hearing, Thomas Heiman testified as a vocational expert. On August 30,
2012, the ALJ issued a decision denying Hensley’s application for benefits. The Appeals Council

upheld the ALJ’s decision and denied a request for review on December 2, 2013. This action for
judicial review ensued.
II.

EVIDENCE OF RECORD

The evidence of record is well documented in the ALJ’s decision and need not be recited
here. Relevant facts, however, are noted 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). 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
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.

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§ 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).
On review, 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

At step one, the ALJ found that Hensley had not engaged in substantial gainful activity
since April 15, 2010, her alleged onset date. At step two, the ALJ concluded that Hensley
suffered from the following severe impairments: degenerative joint disease in the right knee;
degenerative disc disease; lumbar spondylosis; osteoarthritis; fibromyalgia; migraines; irritable
bowel syndrome (“IBS”); diverticulitis; gastrointestinal reflux disease (“GERD”); obesity; and
depression. At step three, the ALJ determined that Hensley’s severe impairments did not meet or
medically equal a listed impairment. At step four, the ALJ concluded that Hensley had the
residual functional capacity (“RFC”) to perform sedentary work, with the following
qualifications:

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[N]ever climb ramps or stairs; never climb ladders, ropes, or scaffolds; never
balance; occasional stoop, crouch, kneel, crawl; frequent reaching and overhead
reaching with the left non-dominant arm; occasional use of moving machinery;
occasional exposure to unprotected heights; able to remember and carry out one to
two step instructions; and able to perform simple, routine, repetitive tasks.
Tr. at 29. Given this RFC, and taking into account Hensley’s age, education, and work
experience, the ALJ determined at step five that Hensley could perform jobs existing in
significant numbers in the national economy, those being a document preparer, a food and
beverage order clerk in a hotel setting, and a final assembler (optical). Accordingly, the ALJ
concluded that Hensley was not disabled as defined by the Act from April 15, 2010, through the
date of her decision.
V.

DISCUSSION

Hensley advances several objections to the ALJ’s decision; each is addressed below.
A. RFC Assessment
1. Findings of Consultative Examiner
On July 12, 2011, Hensley underwent a physical consultative examination with Dr.
Matthew Surburg. Dr. Surburg noted that Hensley “is mordily obese. She is able to maneuver
around the room with considerable difficulty, and became fatigued in the course of today’s exam.
As she became more fatigued, she also complained of increasing pain in her back.” Tr. at 582.
He further noted that Hensley’s gait “is of decreased speed and stability with a rolling walker,
and her imbalance without assistance was so great she was almost unable to walk.” Id. 1 The ALJ
noted in her decision that these facts support the RFC adopted in this case. Hensley argues,
however, that sedentary jobs require “a certain amount of walking and standing,” and “[j]obs are

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The rolling walker was not specifically prescribed by a doctor. However, she was
released from the ER with a rolling walker on one occasion.
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sedentary if walking and standing are required occasionally.” Hensley’s Br. at 19 (quoting 20
C.F.R. § 404.1567(a)). Hensley further notes that, according to S.S.R. 83-10, “[s]ince being on
one’s feet is required ‘occasionally’ at the sedentary level of exertion, periods of standing or
walking should generally total no more than about 2 hours of an 8-hour workday, and sitting
should generally total approximately 6 hours of an 8-hour workday.”
Based on these regulations, according to Hensley, the ALJ effectively found that Hensley
is able to stand and walk for two hours in an 8-hour workday. Yet, the consultative examiner,
who the ALJ credited, noted in his report that Hensley had some walking limitations. Hensley
argues that because the ALJ did not include any walking restrictions in her RFC assessment, the
ALJ’s decision requires reversal. The Court agrees that the consultative examiner’s notes appear
to conflict with a finding that Hensley can stand or walk for two hours in an 8-hour workday. As
a result, and because the ALJ claimed to credit the consultative examiner entirely, this matter
must be remanded to the Commissioner for reconsideration. On remand, the ALJ is instructed to
review Dr. Surburg’s consultative examination, determine what weight should be given to Dr.
Surburg, and assess an RFC that complies with that weight determination and the record
evidence.
2. Limitations related to Migraines, IBS, Diverticulitis, and GERD
Next, Hensley argues that the ALJ found that Hensley’s migraines, IBS, diverticulitis,
and GERD cause more than minimal limitations on her ability to work (i.e., they are severe), but
she failed to include any limitations related to those impairments. The Court is not particularly
persuaded by Hensley’s argument. However, because the credibility determination discussed
below requires reversal, the ALJ is instructed to review this portion of her decision as well.

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The ALJ did find that Hensley’s migraines, IBS, diverticulitis, and GERD were severe
impairments. Hensley complained that, at best, she suffered two migraines a month. She also
claimed that she would have a “bad day” with diarrhea at least once per month. On a bad day,
she must use the bathroom every 20 to 30 minutes. The ALJ did not credit these complaints,
however, and concluded that the restrictions already included in the RFC accommodated the
limitations associated with her migraines and bowel issues. Again, the Court does not see any
obvious error with this portion of the ALJ’s decision. However, because it is so intertwined with
the ALJ’s credibility determination, on remand, the ALJ should also revisit this portion of her
decision.
B. Credibility Determination
Hensley also argues that the ALJ’s credibility determination was patently wrong. In
determining credibility, an ALJ must consider several factors, including the claimant’s daily
activities, level of pain or symptoms, aggravating factors, medication, treatment, and limitations,
see 20 C.F.R. § 404.1529(c); S.S.R. 96–7p, and justify her finding with specific reasons. Villano
v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). “Furthermore, the ALJ may not discredit a
claimant’s testimony about [her] pain and limitations solely because there is no objective
medical evidence supporting it.” Id. (citations omitted). Of course, district courts “afford a
credibility finding ‘considerable deference,’ and overturn [a finding] only if ‘patently wrong.’”
Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006) (quoting Carradine v. Barnhart, 36
F.3d 751, 758 (7th Cir. 2004)).
In this case, Hensley takes issue with each of the specific reasons (which are numerous)
identified by the ALJ for her credibility determination. The Court agrees that the reasons given
by the ALJ for her credibility determination are illogical, unsupported, and/or insufficient.

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Hensley takes issue with the ALJ’s statement concerning the helpfulness of her pain
injections. She testified at the hearing that she usually had two days of relief before her pain
would return. On one occasion, however, one of Hensley’s treating physicians noted that an
injection in January 2011, relieved her pain for a week. The Court finds that, whether Hensley
experienced pain relief for an entire week on one occasion, as opposed to several days, does not
reflect poorly on Hensley’s statement that, generally, she experienced relief for only two days
after an injection.
Hensley also faults the ALJ for questioning her credibility on the basis that a two-month
follow-up visit with her orthopedic doctor indicated that her symptoms were not as limited as she
alleged. Hensley argues that the fact that she “was to return to Dr. Blachly in two months to
follow-up on multiple problems . . . does not logically lead to the conclusion that Hensley’s back
problems were not as limiting as alleged.” Hensley’s Br. at 23. The Court agrees. Two months
between doctor visits does not automatically mean Hensley’s symptoms are not disabling.
The ALJ also noted that Hensley’s four-month gap in treatment between April 15, 2010,
her onset date, and August 2010, was not consistent with an allegation of constant pain. Hensley
argues, however, that the ALJ overlooked Dr. Blachly’s note in January 2010, indicating that
Hensley did not have insurance, but would have insurance in July 2010. It is not clear whether
the lack of insurance was considered by the ALJ.
The ALJ also noted that Hensley was not credible because she did not comply with her
physical therapy. Hensley argues that the ALJ did not consider why Hensley was noncompliant.
Indeed, Hensley reported that the physical therapy was not helping and it made her symptoms
worse. The ALJ should have considered this fact and other potential reasons (e.g., her other
impairments) for Hensley’s noncompliance.

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Hensley argues that the ALJ also implied that her pain was always between a three and a
seven on a scale of one-to-ten, and that after treatment, she was usually at a three. This however,
misconstrued Hensley’s testimony. The record shows that Hensley regularly complained that her
pain was at a ten.
Hensley also argues that the ALJ misinterpreted her wheelchair use. Hensley reported
that she uses a wheelchair to shop. The ALJ found Hensley less than credible, however, because
she had not been prescribed a wheelchair or other assistive device. The Court does not see how
Hensley’s statement that she uses a wheelchair to shop makes her less than credible.
The ALJ also faulted Hensley for visiting her orthopedic doctor every three months. She
reasoned that this indicated that her symptoms had stabilized and were not as limiting as she
alleged. Hensley argues that stable symptoms do not necessarily mean that they are less limiting
than alleged. Indeed, a condition can be stable and disabling at the same time. The Court simply
does not see the logic in the ALJ’s reasoning.
Hensley further notes that that the ALJ’s statements concerning the helpfulness of her
injections and pain blocks are also misleading. The ALJ noted that they provided her relief, yet,
as Hensley points out, the record clearly shows that her pain always returned.
Lastly, Hensley argues that the ALJ’s characterization of her activities of daily living was
improper. Hensley testified that she shops and pays bills online, she uses an electric wheelchair
when shopping, she helps care for her dog, she fixes simple meals two to four times per week
depending on pain, she socializes with family and one friend once a month if she can, she
sometimes fishes with her husband’s help (for an hour at most), and she occasionally waters her
garden and pulls some weeds. The ALJ concluded that these activities of daily living were

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inconsistent with a disability. The Court does not agree. As Hensley argues, an individual can be
disabled, yet able to perform these minimal tasks and activities.
In sum, the specific reasons given by the ALJ for her credibility determination are
insufficient. On remand, the ALJ is instructed to redo her credibility determination and to give
specific reasons that are supported in the record for her determination.
C. Jobs Identified by Vocational Expert/ALJ
As noted above, the ALJ found that Hensley could work as a document preparer, a food
and beverage order clerk in a hotel setting, or a final assembler (optical). Hensley argues that her
limitations prevent her from working as a document preparer, a job with a General Educational
Development (“GED”) Reasoning Level of 3. The Court agrees.
The ALJ limited Hensley to jobs that involve simple, routine, repetitive tasks with only
one- to two-step instructions. A Level 3 job requires the worker to apply commonsense
understanding to carry out written, oral, or diagrammatic instructions and to deal with problems
involving several concrete variables in or from standardized situations. Dictionary of
Occupational Titles, Appendix C, 1991 WL 688702. 2 Hensley argues that her limitations match
the description for only Level 1 jobs. She cites Macek v. Colvin, No. 2:12-CV-197-APR, 2013
WL 5436924 (N.D. Ind. Sept. 27, 2013), and Smith v. Colvin, No. 2:12-CV-259-APR, 2013 WL
4950496 (N.D. Ind. Sept. 9, 2013), to support her argument.

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GED Reasoning Levels range from 1 to 6. In a Level 1 job, a worker must “[a]pply
commonsense understanding to carry out simple one- or two-step instructions.” Id. She must also
“[d]eal with standardized situations with occasional or no variables in or from these situations
encountered on the job.” Id. In a Level 2 job, a worker must “[a]pply commonsense
understanding to carry out detailed but uninvolved written or oral instructions. Id. She must also,
“[d]eal with problems involving a few concrete variables in or from standardized situations.” Id.
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In Macek, the court noted that the ALJ limited the claimant to one- or two-step
instructions. The ALJ, however, concluded that the claimant could perform a Level 2 job. The
court determined that this was reversible error and remanded the matter so that the ALJ could
“reconsider whether there [were] jobs Macek [was] capable of performing that fall into the level
one range for reasoning development due to her limitation to simple one-to-two step routine
tasks.” Macek, 2013 WL 5436924 at *15. The court in Smith ruled similarly. Smith, 2013 WL
1620496 at *8 (“[T]he ALJ must reconsider whether there are jobs Smith is capable of
performing that fall into the level one range for reasoning development due to her limitation to
simple one-to-two step routine tasks.).
The Court agrees with the reasoning in Macek and Smith. Hensley was specifically
limited to one- to two-step instructions. This matches the description for Level 1 jobs. On
remand, the ALJ must determine whether Hensley is capable of performing any Level 1 jobs.
Lastly, the ALJ noted that there are forty-five food and beverage order clerk jobs, 120
final assembler jobs, and 620 document preparer jobs in Indiana. Hensley argues that these
numbers (and/or any combination of these numbers) are not significant. Rather, Hensley
maintains that 1,000 jobs is the “threshold for significance.” Hensley’s Reply at 20 (citing
Weatherbee v. Astrue, 649 F.3d 565, 572 (7th Cir. 2011) (“1,000 jobs constitutes a significant
number”). The Commissioner, on the other hand, argues that 785 jobs is more than significant.
As noted above, the Court is remanding this matter so that the ALJ can identify other jobs
that Hensley is able to perform. Because, on remand, the numbers will likely change, the Court
declines to address this specific argument. The Court notes, however, that “[a]s few as 174 jobs
has been held to be a significant number.” Liskowitz v. Astrue, 559 F.3d 736, 74 (7th Cir. 2009)
(citing Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987)).

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VI.

CONCLUSION

For the foregoing reasons, the decision of the Commissioner is REVERSED and this
cause is REMANDED to the Commissioner for further proceedings consistent with this Entry.
SO ORDERED: 3/13/15
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic communication.

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