VAN NEVEL v. SOCIAL SECURITY ADMINISTRATION

Filing 27

ORDER ON MAY 13, 2015, ORAL ARGUMENT. The parties appeared by counsel May 13, 2015, for an oral argument on Plaintiff's appeal of her denial of disability benefits. Set forth below is the Magistrate Judge's ruling issued from the bench following that argument. This ruling reverses the ALJ's determination and remands this case be pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings. SEE ORDER. Signed by Magistrate Judge Tim A. Baker on 5/29/2015. (BGT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JODI VAN NEVEL,
Plaintiff,
vs.
CAROLYN COLVIN,
Defendant.

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No. 1:14-cv-01292-TAB-SEB

ORDER ON MAY 13, 2015, ORAL ARGUMENT
The parties appeared by counsel May 13, 2015, for an oral argument on Plaintiff’s appeal
of her denial of disability benefits. Set forth below is the Magistrate Judge’s ruling issued from
the bench following that argument. This ruling reverses the ALJ’s determination and remands
this case be pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings.
THE COURT: With the benefit of briefing and oral argument, I will now give you my
decision. By way of background, Plaintiff, Jodi Van Nevel, filed for Social Security Disability
benefits on June 29, 2011 and Supplemental Security Income benefits on July 15, 2011. Her
claims were initially denied on August 31, 2011 and on reconsideration on November 9, 2011.
On December 11, 2012, an ALJ held a video hearing, and on February 8, 2013, the ALJ denied
Plaintiff's claims. The Appeals Council also denied review. Plaintiff timely appealed to this
court.
Defendant does not contest the ALJ's findings, which I will now summarize. The ALJ
found Plaintiff had not engaged in substantial gainful activity since March 23, 2011, the alleged
onset date. The ALJ found that Plaintiff had the following severe impairments: Chronic neck

pain due to cervical spondylosis, status post cervical discectomy/fusion surgery at the C3-C4,
C4-C5, and C5-C6 levels in August 2011, with associated residuals of headaches and shoulder
pain problems.
The ALJ found Plaintiff did not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments. Significantly, the ALJ
found Plaintiff had the residual functional capacity to perform light work except as reduced by
only occasional climbing of ramps and stairs, balancing, stooping, kneeling, crouching, and
crawling, and never climbing ladders, ropes, or scaffolds. The ALJ also found Plaintiff needs to
avoid concentrated exposure to loud noise and bright/flashing lights, needs to avoid overhead
reaching and needs to avoid concentrated exposures to hazards (i.e. dangerous moving
machinery, work at unprotected heights, and slippery/uneven/moving surfaces.) Record at 17.
Finally, the ALJ found Plaintiff is capable of performing past relevant work as a general office
clerk both as she performed it and as it is usually performed in the national economy and past
work as a salesclerk, but only as this job is typically performed in the national economy and not
how the claimant previously performed this work.
In considering this appeal, any factual findings are conclusive if they are supported by
substantial evidence. Brewer v. Chater, 103 F.3d 1384, 1389 (7th Cir. 1997). The issue on
appeal, thus, is not whether Plaintiff is disabled but whether the Commissioner's findings are
supported by substantial evidence. Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995).
"Substantial evidence" means "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion."
The facts show that Plaintiff was 46 years old on her alleged onset date. Plaintiff alleges
disability due to herniated discs, bone spurs, spinal stenosis, constant pain, a 10-pound lifting

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restriction, and inability to bend, twist, or turn her head fast or to turn her head to the left, as well
as headaches and limited mobility. Plaintiff has past work as an office clerk, final finisher in a
factory, and retail worker. Plaintiff reported headaches since a car accident, which are caused by
moving her head. Record at 227.
She takes medication, but the medications do not eliminate her headaches. She feels
restricted 80 percent of the time due to her headaches and pain. Plaintiff's medical history
includes visits to her neurologist and L5-S1 microdiscectomy on January 25, 2010; a
November 13, 2010 MRI of Plaintiff's cervical spine, which showed neural foraminal stenosis at
C3-C4, C4-C5, and C5-C6; ongoing visits to a pain clinic for neck pain and headaches; a left
occipital nerve block; a left C1-C2 atlantoaxial joint injection; an April 14, 2011 left great
occipital nerve block; and a June 13, 2011 Neurontin prescription for the neuropathic pain; and
an epidural at C4-C5.
An MRI on Plaintiff's cervical spine on June 24, 2011, showed degenerative changes at
C3 through C4 and C4 through C5 and moderate left neural foramen narrowing at C3 through C4
and moderate right neural foramen narrowing at C4 through C5, as well as spondylosis at C3
through C4, C4 through C5, and C5 through C6. Plaintiff's medical history also includes
physical therapy. In addition, Plaintiff was hospitalized from August 2 to August 4, 2011, for
anterior cervical discectomy, osteophytectomy, and decompression of the spinal cord at C3
through C4, C4 through C5, and C5 through C6 with fusion. Record at 436 through 37.
Plaintiff raises several issues on appeal. First, Plaintiff contends the ALJ's RFC is not
supported by substantial evidence. Specifically, Plaintiff alleges there are inconsistencies in his
rationale that contradict the RFC and are contrary to law. Second, Plaintiff contends the ALJ's
credibility determination is not supported by substantial evidence. Third, Plaintiff contends the

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ALJ's analysis of Plaintiff's receipt of unemployment insurance benefits is contrary to law and
regulations.
With respect to the first issue, the ALJ limited Plaintiff to light work with reduction to
occasional postural maneuvers, avoidance of concentrated exposure to loud noises, bright and
flashing lights, no overhead reaching, and avoidance of concentration exposure to hazards.
Record at 17. Light work "requires a good deal of walking or standing." 20 CFR 404.1567(b).
However, the ALJ acknowledged in his decision that Plaintiff "is likely unable to engage in
prolonged standing, walking, and heavy lifting consistent with a retained capacity for gainful
work at light exertion." Record at 27. This statement is inconsistent with the definition of light
work.
The regulations state that light work requires the prolonged standing and walking that the
ALJ acknowledged he does not believe Plaintiff is capable of performing. Thus, the RFC is for
more than Plaintiff can do during a regular 40-hour work week. The ALJ's conclusion at Step IV
that Plaintiff could return to her past relevant work is based upon this RFC. Based upon this
RFC, the ALJ's conclusion that Plaintiff could not engage in prolonged standing and walking that
is involved in light work is flawed.
The Defendant's response brief does not adequately address this issue, nor did oral
argument, except that Defendant alleged during the argument that the ALJ's language was
inartful and poorly phrased.
The Defendant argues that the ALJ added certain postural and other limitations to
Plaintiff's RFC. However, these limitations do not address the ALJ's conclusion that the Plaintiff
could not engage in prolonged walking or standing. The Defendant also argues that the ALJ
understood the standing and walking requirements when posing questions to the VE. Even if the

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ALJ had such an understanding, the ALJ's decision does not reconcile how someone who cannot
engage in prolonged standing or walking could perform light work.
This is not inartful drafting or poorly-phrased language. Remand is required. On
remand, the ALJ should address the conclusion that Plaintiff can alleviate her lower back pain
with "minimal measures." Record at 18. The ALJ acknowledged that these purported minimal
measures involve lying on the floor with her feet up on the wall. Record at 18 through 19. The
ALJ offers no rationale as to how these types of measures, which in reality cannot fairly be
described as minimal, would be tolerated in the workplace.
In summary, the RFC adopted by the ALJ and presented to the VE allowed for prolonged
standing and walking, which the ALJ did not believe Plaintiff was capable of performing.
Therefore, remand is appropriate.
The second issue Plaintiff presents is whether the ALJ's credibility determination is
supported by substantial evidence. I do not find that this issue warrants remand. Plaintiff makes
a number of challenges to the ALJ's credibility determination, and I will address the most
significant challenges.
First, Plaintiff argues that the ALJ erred in noting that Plaintiff testified that she could not
sweep. However, she reported to Dr. Grewal that she could sweep. So there is evidence in the
record for this conclusion by the ALJ. Record at 516 and 523.
Plaintiff next faults the ALJ for noting that although Plaintiff stated that Dr. Gottlieb
restricted her to lifting no more than 10 pounds, the record contained no such limitation from
Dr. Gottlieb. Plaintiff is correct that it was Dr. Jonathan Schock who imposed such a restriction
in November 2009. The fact that the ALJ identified the wrong doctor, based upon the Plaintiff's
own testimony, does not support a remand. What is more important is that Dr. Schock imposed

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this limitation 18 months before Plaintiff's alleged disability onset date and almost two years
before Dr. Gottlieb himself performed a cervical discectomy and fusion in August 2011.
Plaintiff also argues that the ALJ erred in finding that her course of treatment following
lower back and neck fusion surgeries was conservative. However, I find that the ALJ reasonably
considered Plaintiff's post-surgical treatment histories for lower back and neck pain and the type
of treatment she received.
Plaintiff also claims the ALJ erred in finding inconsistencies between her testimony that
she barely drove and her solo driving trip to her hearing that took three to four hours each way.
However, the ALJ reasonably weighed Plaintiff's testimony against the evidence of this driving
trip.
Plaintiff also argues that the ALJ erred in finding that despite her testimony, she did not
appear uncomfortable during her hearing that spanned approximately one hour. Plaintiff
contends that this finding amounted to a prohibited sit and squirm test. However, Social Security
Regulation 96-7p provides that an ALJ can and should consider a witness' demeanor in assessing
her credibility. Powers v. Apfel, 207 F.3d 431, 436 (7th Cir. 2000). In making his credibility
finding, the ALJ permissibly considered the Plaintiff's demeanor as one of several factors, in
accordance with SSR 96-7p. Thus, I find no error in the ALJ's credibility determination.
Finally, Plaintiff argues that the ALJ erred in his analysis of Plaintiff's receipt of
short-term disability and unemployment benefits. I agree. The ALJ specifically found
"however, it appears to be somewhat inconsistent for the Claimant to, in one instance, allege
total disability to one governmental agency while pursuing disability benefits and at the same
time allege that she is able and ready to work to another governmental agency while obtaining
unemployment benefits. Either the Claimant is disabled and unable to engage in any type of

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gainful work as she alleges to Social Security, or she is ready and able to work should work
become available as she alleges to the State of Indiana in order to obtain unemployment
benefits." Record at 22.
At oral argument counsel for both the Plaintiff and the Defendant agreed to two points.
First, the mere receipt of unemployment benefits does not make a Plaintiff ineligible for Social
Security benefits; and No. 2, receipt of unemployment benefits is one factor that the ALJ may
consider in assessing Plaintiff's credibility.
Here, the ALJ analyzed the issue as an either/or situation. Specifically, the language that
is most troubling is the ALJ's statement, "Either the Claimant is disabled and unable to engage in
any type of gainful work as she alleges to Social Security, or she is ready and able to work,
should work become available, as she alleges to the State of Indiana in order to obtain
unemployment benefits." This is error. While the ALJ could properly consider this as an issue
reflecting on Plaintiff's credibility, this fact cannot be outcome determinative in and of itself.
The language the ALJ used suggests he applied an either/or standard, so remand is required.
I would note, however, that even if remand is not supported for this specific reason, as
previously noted, remand is otherwise appropriate based upon the problems I have noted with the
RFC; and therefore, the ALJ should revisit the issue with regard to the unemployment benefits.
For these reasons, this case is remanded for further consideration of the issues as outlined
in this decision. I will ask the court reporter to transcribe that portion of this decision that
reflects my reasons, and I will file those on the docket. The time for appeal will begin to run as
of the date that a separate judgment is entered on the docket.
Dated: 5/29/2015

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Distribution:
Brian J. Alesia
OFFICE OF REGIONAL CHIEF COUNSEL FOR SOCIAL SECURITY
[e-mail]
Jonelle L. Redelman
REDELMAN LAW
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
[e-mail]

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