CHAPMAN v. COLVIN

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 9/15/2015.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
FELICIA CHAPMAN,
Plaintiff,
vs.
CAROLYN W. COLVIN, COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

)
)
)
)
) CAUSE NO. 1:14-cv-1411-WTL-TAB
)
)
)
)
)

ENTRY ON JUDICIAL REVIEW
Plaintiff Felicia Chapman requests judicial review of the final decision of Defendant
Carolyn Colvin, Commissioner of the Social Security Administration (“Commissioner”),
denying her application for Disability Insurance Benefits (“DIB”) and Supplemental Insurance
Benefits (“SSI”) under Titles II and XVI of the Social Security Act (“the Act”). The Court rules as

follows.
I. PROCEDURAL HISTORY
Chapman filed her application for DIB and SSI in September 2011, alleging disability
beginning on April 19, 2011, due to obesity, dextroscoliosis, carpal tunnel syndrome, and
asthma. Her application was denied initially and upon reconsideration, whereupon she requested
and was granted a hearing before an administrative law judge (“ALJ”). Chapman was
represented by counsel at the hearing, which was held on April 22, 2013, before ALJ Monica
LaPolt. Chapman and a vocational expert testified at the hearing. Thereafter, on May 15, 2013,
the ALJ rendered her decision in which she concluded that Chapman was not disabled as defined
by the Act. The Appeals Council denied Chapman’s request for review of the ALJ=s decision,
and Chapman filed this timely action for judicial review.

II. EVIDENCE OF RECORD
The evidence of record is aptly set forth in Chapman’s brief. Specific facts are set forth
in the discussion section below where relevant.
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
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
1

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.
2

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 Chapman had not engaged in substantial gainful activity
since her alleged onset date of April 19, 2011. At steps two and three, the ALJ found that
Chapman had the severe impairments of obesity, mild dextroscoliosis, carpal tunnel syndrome on
the right side, and asthma, but that her impairments, singly or in combination, did not meet or
medically equal a listed impairment. At step four, the ALJ concluded that Chapman had
the residual functional capacity to perform sedentary work as defined in 20 CFR
404.1567(a) and 416.967(a) except the individual can occasionally climb ramps
and stairs; never climb ladders, ropes, or scaffolds; occasionally balance, stoop,
kneel, crouch, and crawl; occasionally finger with the non-dominant left hand;
have the option to sit or stand, but not be off task more than five percent of the

3

workday; and have no more than moderate exposure to heat, cold, or airborne
irritants.
Record at 66. Given this residual functional capacity (“RFC”), the ALJ determined that
Chapman was able to perform her past relevant work as a telephone solicitor. Accordingly, the
ALJ concluded that Chapman was not disabled as defined by the Act.
V. DISCUSSION
Chapman argues that the ALJ erred in several respects. Each of her arguments is
addressed, in turn, below.
A. ALJ’s Reliance on Dr. Salim’s Report
Chapman argues that the ALJ’s finding at step 3 that her carpal tunnel syndrome does not
meet or equal a Listing is flawed because it relies on the report of consultative examiner Dr.
Salim, whose report Chapman characterizes as “internally inconsistent.” Specifically, Dr. Salim
reported that her examination found the following:
Strength was 5/5 in all extremities. Fine finger skills, gross hand exam and grip
strength were normal bilaterally. . . . Normal [range of motion in] upper
extremities except right place dorsi flexion 20 degrees, palmar flexion 20
[degrees].
Record at 506. In her “Impression and Medical Source Statement” at the conclusion of her
report, Dr. Salim stated “[c]arpal tunnel syndrome but decreased hand grip and range of
movement would need surgical intervention.” Id. Chapman argues that this conclusion
contradicts Dr. Salim’s finding of normal grip strength and “calls in to question the validity and
reliability of Dr. Salim’s entire report.” Dkt. 14 at 14. While Dr. Salim’s report certainly is
ambiguous with regard to the effects of Chapman’s carpal tunnel syndrome, 2 Chapman’s specific

2

The Court notes that in addition to the “normal” finding and the somewhat
indecipherable “impression,” the report also notes that her “hand grip” was “zero” on the right
and “.8 pounds” on the left. Record at 505. The Court has no idea what a normal result is on
4

argument is that the ALJ should not have relied upon it to support her finding that Chapman’s
carpal tunnel syndrome did not meet or equal Listings 1.02(B) and 11.14. However, as the
claimant, Chapman “has the burden of showing that [her] impairments meet a listing, and [she]
must show that [her] impairments satisfy all of the various criteria specified in the listing.”
Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006). Chapman has not even attempted to do
so; other than to point out the problems with Dr. Salim’s report, she has not pointed to any
evidence—including her own testimony—that suggests that she satisfies the Listings.
Accordingly, she is not entitled to remand with regard to step 3. That said, given the ambiguity
and errors in Dr. Salim’s report, it would be wise for the ALJ to seek clarification from Dr. Salim
if she still wishes to rely on the report.
B. ALJ’s RFC Determination
Chapman next makes several arguments regarding the ALJ’s RFC determination,
characterizing it as “wrought with error.” First, she notes that two of Chapman’s doctors opined
that she was unable to lift and/or carry more than five pounds but the ALJ did not include that
limitation in her RFC finding. However, the ALJ expressly gave those two physicians’ opinions
no weight, and Chapman does not even acknowledge that decision by the ALJ, let alone give any
reason why it was erroneous. “It is not this court’s responsibility to research and construct the
parties’ arguments,” Draper v. Martin, 664 F.3d 1110, 1114 (7th Cir. 2011), and the Court will
not do so here. Similarly, Chapman points out that the ALJ “allows for only occasional fingering
with the non-dominant left hand in the RFC, yet remains silent on any limitations Chapman may

that test, but presumably “zero” is abnormal. In addition, the report does not appear to have been
proofread by the doctor, as it contains what the Court assumes are typographical errors as well:
“Patient is a 39-year-old African-American female feminist due to back pain . . .” and “[s]he has
tried using snickers as fatuous without much improvement . . . .” Id. at 504.
5

have on her dominant and most certainly more severely impaired right hand.” Dkt. No. 14 at 16.
However, Chapman points to no medical source 3 who opined that she had manipulative
limitations on the right side. 4
Chapman also argues that the ALJ’s RFC determination is faulty because it contains a
sit/stand option but fails to specify how frequently she needs to alternate between sitting and
standing. However, in the ALJ’s hypothetical question to the vocational expert that tracks her
RFC determination, the ALJ specifies that “the individual would have the opportunity to sit or
stand alternatively at will, providing that they’re not off task more than five percent of the work
period.” Record at 51-52 (emphasis added). The vocational expert testified that such an
individual would be able to perform Chapman’s past relevant work as a telephone solicitor. The
ALJ’s RFC determination is clear—Chapman is limited to work that permits her to alternate
between sitting and standing as often as she needs to, as long as she is not off task more than five
percent of her work day. The record supports her finding that Chapman could still work as a
telephone solicitor even with this limitation. There is no error. 5

3

The ALJ’s treatment of Chapman’s own testimony about her limitations is addressed

below.
4

There is a possibility that Chapman’s treating physicians were confused when they
completed the medical statement form due to the ambiguity of the form’s instructions. It is not
entirely clear whether they meant that Chapman was constantly limited with regard to fine
manipulation with her right hand or constantly able to perform fine manipulation with her right
hand. Given that it appears undisputed that her right hand was worse than her left hand, it seems
that they may have meant the former, not the latter.
5
Chapman’s citation to SSR 96-9p is misplaced; the rule of law cited by Chapman applies
when an ALJ finds that a claimant cannot do her past relevant work because of her limitations
but “is able to do other work.” So, too, is Chapman’s citation to Johnson v. Barnhart, No. 043438-cv-WH-FS, 2006 WL 373896 (W.D. Mo. Feb. 16, 2006), which relates to claimants
“limited to unskilled work”; Chapman’s past relevant work as a telephone solicitor was semiskilled. In any event, the fact that SSR 83-12 finds that “[u]nskilled types of jobs . . . cannot
ordinarily sit or stand at will” does not make that true of all unskilled jobs and would not prevent
an ALJ from relying on a vocational expert’s testimony that a particular job does, in fact, allow
such flexibility.
6

C. ALJ’s Treatment of Chapman’s Allegations of Subjective Symptoms
Chapman next argues that the ALJ erred in her treatment of Chapman’s allegations of
pain and other subjective symptoms. The Court agrees.
As the ALJ correctly acknowledged, with regard to subjective symptoms such as pain, if
a claimant has a medically determinable impairment that is reasonably expected to produce pain,
then the ALJ must evaluate the credibility of the claimant’s testimony regarding the extent of
that pain. “In determining credibility an ALJ must consider several factors, including the
claimant’s daily activities, her 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 the finding
with specific reasons. Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). The regulations
further provide that “we will not reject your statements about the intensity and persistence of
your pain or other symptoms or about the effect your symptoms have on your ability to work
solely because the available objective medical evidence does not substantiate your statements.”
20 C.F.R. ' 404.1529(c)(2). Additionally, because the ALJ evaluates credibility by questioning
and observing a live witness, not simply a cold record, an ALJ=s credibility determination is
reviewed deferentially and should be overturned only if it is “patently wrong.” See Craft v.
Astrue, 539 F.3d 668, 678 (7th Cir. 2008). However, “[t]he determination of credibility must
contain specific reasons for the credibility finding” and “must be supported by the evidence and
must be specific enough to enable the claimant and a reviewing body to understand the
reasoning.” Id. (citing Arnold v. Barnhart, 473 F.3d 816, 822 (7th Cir. 2007)).
The ALJ concluded that “[a]fter 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

7

limiting effects of these symptoms are not entirely credible for the reasons explained in this
decision.” Record at 70. In the discussion that follows, the ALJ noted the several reasons for
finding Chapman not entirely credible.
First, the ALJ noted that Chapman’s activities of daily living included attending to her
personal hygiene, preparing simple meals, driving, completing simple household chores, and
raising her seven-year-old daughter. However, the Seventh Circuit has made clear that the
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., Engstrand v. Colvin, 788 F.3d 655, 661 (7th Cir. 2015) (“working
sporadically or performing household chores are [sic] not inconsistent with being unable to
engage in substantial gainful activity”); accord Beardsley v. Colvin, 758 F.3d 834, 838 (7th Cir.
2014); Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir. 2005); Carradine v. Barnhart, 360 F.3d
751 (7th Cir. 2004). This is especially so when the evidence demonstrates that the claimant is
able to complete those tasks only with great strain. See Beardsley, 758 F.3d at 838; Craft, 539
F.3d at 680. Here, Chapman testified that housekeeping was “like a few minutes out of the day.
Fifteen, 20 minutes, then I have to stop, sit down, rest, prop up pillows. And then I try to go
back to the task.” Record at 37. With regard to caring for her daughter, she testified:
Well, basically, she does everything for me. I don’t have to really do too much of
anything for her, other than try to cook. A lot of times, I get meals that she can
prepare herself, that she can put in the microwave, lunch meat, sandwiches, or
things of that nature. Or my mom will cook.
Id. She further testified that her mother, who lives with her, did the laundry and most of the
cleaning, that she would not be able to care for her daughter without the help of her mother and
her adult son. Id. at 38. The evidence of record regarding Chapman’s daily activities does not
support the ALJ’s credibility determination.
8

Next, the ALJ noted that Chapman “was working 15 hours per week at a fast food
restaurant as of December 2011. Although this is not disqualifying substantial gainful activity, it
demonstrates that the claimant’s abilities have, at least at times, been somewhat greater than she
has generally reported.” Record at 71. The fact that Chapman—who as a single mother needed
to support herself and her child—tried to work 15 hours per week for a few months might well
have been the type of “heroic measure” that a disabled person takes in spite of the pain and other
symptoms she experiences. Gentle, 430 F.3d at 867. The ALJ did not ask Chapman about her
experience working at that job, how she was able to work given the symptoms about which she
testified, and why she left the job. Without that information, Chapman’s short attempt at work
does not support the ALJ’s findings that her allegation of disabling pain is not credible.
The only other reason given by the ALJ for finding Chapman less than fully credible is
her belief that “[t]he intensity and severity of [her] back pain is not fully supported by the
medical record.” Record at 71. As noted above, a credibility determination may not be based
solely on the lack of objective evidence to support claims regarding subjective symptoms.
Further, the ALJ points to no medical evidence to support her belief that the findings on various
tests do not support the extent of pain alleged by Chapman, and “ALJs are required to rely on
expert opinions instead of determining the significance of particular medical findings
themselves.” Moon v. Colvin, 763 F.3d 718, 722 (7th Cir. 2014), as amended on denial of reh'g
(Oct. 24, 2014).
Because the reasons given by the ALJ for discrediting Chapman’s allegation of disabling
pain are not supported by the record, this case must be remanded for reconsideration of the
impact of Chapman’s subjective symptoms on her ability to perform substantial gainful activity.

9

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: 9/15/15
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic notification

10