STILES v. COLVIN
ENTRY-The errors found above render the ALJ's decision to deny Mr. Stile's claim for benefits not supported by substantial evidence and the result of legal error. Plaintiff's claim for S.S.I. benefits will be reversed and remanded to the Commissioner for re-evaluation. Signed by Magistrate Judge Denise K. LaRue on 3/17/2017.(CBU)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA,
EVERETT A. STILES,
CAUSE NO. 1:15-cv-1642-DKL-SEB
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Plaintiff Everett A. Stiles applied for disability benefits under the supplemental
security income program (“S.S.I.”) of the Social Security Act.
Commissioner of Social Security denied his application and Mr. Stiles filed this suit for
judicial review of the Commissioner’s decision. On the parties’ consents, the district
judge referred this Cause to this magistrate judge to conduct all proceedings and order
the entry of final judgment. Order of Reference [doc. 16]. This Entry explains the Court’s
findings and conclusions on review of the Commissioner’s decision.
Judicial review of the Commissioner’s factual findings is deferential: courts must
affirm if her findings are supported by substantial evidence in the record. 42 U.S.C. '
405(g); Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004); Gudgel v. Barnhart, 345 F.3d
467, 470 (7th Cir. 2003). Substantial evidence is more than a scintilla, but less than a
preponderance, of the evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001). If
the evidence is sufficient for a reasonable person to conclude that it adequately supports
the Commissioner’s decision, then it is substantial evidence. Richardson v. Perales, 402
U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Carradine v. Barnhart, 360 F.3d 751, 758
(7th Cir. 2004). This limited scope of judicial review derives from the principle that
Congress has designated the Commissioner, not the courts, to make disability
In reviewing the decision of the ALJ [administrative law judge], we cannot
engage in our own analysis of whether [the claimant] is severely impaired
as defined by the SSA regulations. Nor may we reweigh evidence, resolve
conflicts in the record, decide questions of credibility, or, in general,
substitute our own judgment for that of the Commissioner. Our task is
limited to determining whether the ALJ’s factual findings are supported by
Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Carradine, 360 F.3d at 758. While
review of the Commissioner=s factual findings is deferential, review of her legal
conclusions is de novo. Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010).
The Social Security Act defines disability as the “inability 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 12 months . . . .” 42 U.S.C. §
423(d)(1)(A); 20 C.F.R. § 404.1505(a). 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. ' 416.905(a). A
person will be determined to be disabled only if his impairments “are of such severity
that he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.” 42 U.S.C. §§ 423(d)(2)(A) and
1382c(a)(3)(B). 20 C.F.R. §§ 404.1505, 404.1566, 416.905, and 416.966. The combined effect
of all of an applicant’s impairments shall be considered throughout the disability
determination process. 42 U.S.C. '§ 423(d)(2)(B) and 1382c(a)(3)(G). 20 C.F.R. §§ 404.1523
The Social Security Administration has implemented these statutory standards in
part by prescribing a “five-step sequential evaluation process” for determining disability.
If disability status can be determined at any step in the sequence, an application will not
be reviewed further. At the first step, if the applicant is currently engaged in substantial
gainful activity, then he is not disabled. At the second step, if the applicant’s impairments
are not severe, then he is not disabled. A severe impairment is one that “significantly
limits [a claimant’s] physical or mental ability to do basic work activities.” Third, if the
applicant’s impairments, either singly or in combination, meet or medically equal the
criteria of any of the conditions included in the Listing of Impairments, 20 C.F.R. Pt. 404,
Subpt. P, Appendix 1, Part A, then the applicant is deemed disabled. The Listing of
Impairments are medical conditions defined by criteria that the Social Security
Administration has pre-determined are disabling. 20 C.F.R. ' 404.1525. If the applicant’s
impairments do not satisfy the criteria of a listing, then her residual functional capacity
(“RFC”) will be determined for the purposes of the next two steps. RFC is an applicant’s
ability to do work on a regular and continuing basis despite his impairment-related
physical and mental limitations and is categorized as sedentary, light, medium, or heavy,
together with any additional non-exertional restrictions.
At the fourth step, if the
applicant has the RFC to perform his past relevant work, then he is not disabled. Fifth,
considering the applicant’s age, work experience, and education (which are not
considered at step four), and his RFC, the Commissioner determines if he can perform
any other work that exists in significant numbers in the national economy. 42 U.S.C. '
The burden rests on the applicant to prove satisfaction of steps one through four.
The burden then shifts to the Commissioner at step five to establish that there are jobs
that the applicant can perform in the national economy. Young v. Barnhart, 362 F.3d 995,
1000 (7th Cir. 2004). If an applicant has only exertional limitations that allow her to
perform the full range of work at her assigned RFC level, then the Medical-Vocational
Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (the “grids”), may be used at step
five to arrive at a disability determination.
The grids are tables that correlate an
applicant’s age, work experience, education, and RFC with predetermined findings of
disabled or not-disabled. If an applicant has non-exertional limitations or exertional
limitations that limit the full range of employment opportunities at his assigned work
level, then the grids may not be used to determine disability at that level. Instead, a
vocational expert must testify regarding the numbers of jobs existing in the economy for
a person with the applicant’s particular vocational and medical characteristics. Lee v.
Sullivan, 988 F.2d 789, 793 (7th Cir. 1993). The grids result, however, may be used as an
advisory guideline in such cases.
An application for benefits, together with any evidence submitted by the applicant
and obtained by the agency, undergoes initial review by a state-agency disability
examiner and a physician or other medical specialist. If the application is denied, the
applicant may request reconsideration review, which is conducted by different disability
and medical experts. If denied again, the applicant may request a hearing before an
administrative law judge (“ALJ”).1 An applicant who is dissatisfied with the decision of
the ALJ may request the SSA’s Appeals Council to review the decision. If the Appeals
Council either affirms or declines to review the decision, then the applicant may file an
action in district court for judicial review. 42 U.S.C. ' 405(g). If the Appeals Council
declines to review a decision, then the decision of the ALJ becomes the final decision of
the Commissioner for judicial review.
1 By agreement with the Social Security Administration, initial and reconsideration reviews in
Indiana are performed by an agency of state government, the Disability Determination Bureau, a division
of the Indiana Family and Social Services Administration. 20 C.F.R. Part 404, Subpart Q (' 404.1601, et seq.).
Hearings before ALJs and subsequent proceedings are conducted by personnel of the federal Social
A hearing before an ALJ was held in April 2014, during which Mr. Stiles, a medical
expert, a psychological expert, and a vocational expert testified. (R. 38, 39.) Mr. Stiles
was represented by counsel during the administrative proceedings and the hearing.
(Different counsel represents him in this suit.) The ALJ issued his decision in June 2014.
At step one of the sequential evaluation process, the ALJ found that Mr. Stiles had
not engaged in substantial gainful activity since he filed his application on July 18, 2012.
At step two, he found that Mr. Stiles has several severe impairments: (1) degenerative
disc disease, (2) osteoarthritis of his right foot, (3) chronic obstructive pulmonary disease
(“COPD”), (4) obstructive sleep apnea, (5) depression, (6) anxiety disease, (7) posttraumatic-stress disorder, (8) borderline intellectual disorder, (9) coronary artery disease,
and (10) substance and alcohol abuse. At step three, the ALJ found that Mr. Stiles’s
impairments, singly or in combination, do not meet or medically equal the severity of any
of the conditions in the listing of impairments.
For the purposes of steps four and five, the ALJ determined Mr. Stiles’s RFC, the
most that he can function with his impairments. He found that Mr. Stiles has the RFC to
perform work at the sedentary level (lift and or carry up to 10 pounds occasionally and
frequently, 2 stand and/or walk up to 2 hours and sit up to 6 hours in an 8-hour workday)
with the following significant restrictions: (1) only occasional bilateral fingering; (2)
mentally, only simple and repetitive tasks; (3) mentally, only occasional contact with the
The Court suspects the ALJ mistakenly described the same weight limit for both functions.
public, co-workers, and supervisors; (4) only work with routine expectations, with little
or no change during the week; and (5) “no fast paced and assembly type work.” (R. 21.)
At step four, the ALJ found that the defined RFC prevented Mr. Stiles from
performing any of his past relevant work. At step five, the ALJ relied on the testimony
of the vocational expert to find that, considering Mr. Stiles’s RFC, age, education, and
transferability of skills, he is able to perform occupations such as surveillance system
monitor (500 jobs in Indiana and 19,000 jobs nationally), coupon counter/scanner (1,200
Indiana, 72,000 nation), and general laborer (1,600 Indiana, 48,000 nation). The ALJ found
that these numbers are significant in the national economy and, therefore, Mr. Stiles is
Mr. Stiles argues two categories of errors by the ALJ in his decision.
1. Discrepancies and inaccuracies in the vocational expert’s testimony. Mr.
Stiles argues that discrepancies between the vocational requirements of the three
occupations identified by the vocational expert and the criteria listed in the Dictionary of
Occupational Titles (“D.O.T.”), and inaccuracies in the vocational expert selection of
occupations render the ALJ’s reliance on the vocational expert’s testimony and, thus, his
finding of non-disability, unsupported by substantial evidence and the result of legal
error. The Commissioner argues that Mr. Stiles forfeited his objections to the vocational
expert’s testimony by failing to raise them at the hearing.
Surveillance-system monitor. Mr. Stiles argues that, while the “surveillance
system monitor” occupation identified by the vocational expert satisfies the exertional,
SVP,3 and postural limits of the RFC defined by the ALJ, the Selected Characteristics of
Occupations Defined in the Dictionary of Occupational Titles (the “S.C.O.”)4 provides that the
job requires “frequent talking” and a temperament of “dealing with people beyond
giving and receiving instructions,” both of which contradict Mr. Stiles’s RFC restriction
to only occasional interaction with the public, co-workers, and supervisors. Mr. Stiles
also argues that the occupation of surveillance system monitor, which was last defined
in the D.O.T. in 1986, is stale. The more up-to-date O*NET5 divides the D.O.T. occupation
into the occupations of gaming surveillance officers and protective-service workers. The
O*NET classifies both of these occupations with SVPs of 4 to 6 (at the upper end of the
semi-skilled and into the skilled work grades), which Mr. Stiles argues are inconsistent
with his RFC restriction to simple and repetitive tasks, with routine expectations. Finally,
Mr. Stiles contends that, according to the O*NET, the gaming-surveillance-officer
occupations require speaking as well as daily telephonic and face-to-face contact with
others and most of the the protective-service-workers occupations require constant
SVP is the specific vocational preparation time rating that the U. S. Department of Labor assigns
to each occupation listed in the D.O.T. Unskilled work corresponds to an SVP of 1 or 2; semi-skilled work
to an SVP of 3 or 4; and skilled work to an SVP of 5 to 9. S.S.R. 00-4p.
4 The S.C.O., produced by the U. S. Department of Labor, is a companion publication of the D.O.T.
The Social Security Administration “relies primarily on [both] for information about the requirements of
work in the national economy.” S.S.R. 00-4p.
The O*NET is the Occupational Information Network, also produced by the U. S. Department of
Labor. It is intended eventually to replace the D.O.T., the latest edition of which which was published in
contact with others as well as group work. Mr. Stiles argues that these vocational
characteristics contradict the ALJ’s RFC restriction to only occasional contact with the
public, co-workers, and supervisors.
Coupon counter/scanner. Mr. Stiles points out that the D.O.T. code that the
vocational expert gave for the occupation of “coupon counter/scanner” is erroneous; it
is actually the code for “parimutuel-ticket checker,” which requires constant handling,
reaching, and fingering, which renders it inconsistent with his RFC restriction to only
occasional bilateral fingering.
Mr. Stiles goes further and identifies four D.O.T.
occupations involving coupons that the vocational experts might have intended, namely
coupon-manifest clerk, coupon and bond collection clerk, coupon collection clerk, and
coupon redemption clerk. All of them, however, are precluded by their characteristics of
frequent reaching, handling, and fingering; SVPs of 4 and 5; and/or a light, rather than
sedentary, exertional level.
Finally, Mr. Stiles points out that the D.O.T. code that the
vocational expert gave for “general labor” is actually the code for the occupation of “leaf
tier (tobacco).” 6 He argues that both the D.O.T. and the S.C.O. describe this occupation
6 A leaf tier “[t]ies tobacco leaves in hands (bundles) to facilitate processing: Selects loose leaves
for hand and arranges leaves with butt ends together. Winds tie leaf around butts and pulls end of tie leaf
into hand.” Dictionary of Occupational Titles (4th Ed., Rev. 1991), 529.687-138, available at United States
www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOT05D.HTM (last visited March 6, 2017).
as requiring frequent reaching, handling, and fingering, which, as explained above, he
argues is precluded by the ALJ’s RFC restriction to only occasional bilateral fingering.
The Commissioner argues that, under the holding of Donahue v. Barnhart, 279 F.3d
441, 446-47 (7th Cir. 2002), Mr. Stiles’s arguments come too late and, therefore, are
forfeited. The claimant’s attorney in Donahue did not cross-examine or question the
vocational expert at the hearing, but raised his argument about the inconsistency of the
vocational expert’s testimony with the D.O.T. only after the hearing had concluded. 7 The
Court of Appeals for the Seventh Circuit held that the claimant forfeited his argument
because he did not raise the inconsistency until after the ALJ’s hearing. Donahue, 279 F.3d
at 446 (“When no one questions the vocational expert’s foundation or reasoning, an ALJ
is entitled to accept the vocational expert’s conclusion, even if that conclusion differs from
the Dictionary’s . . . .”).
Donahue was decided before Social Security Ruling 00-4p became effective but it
declared that the Ruling “is to much the same effect.” Id., at 446. S.S.R. 00-4p provides
that “[t]he adjudicator must explain the resolution of the conflict [between vocationalexpert testimony and the D.O.T.] irrespective of how the conflict was identified.” The
Court noted that “[t]he ruling requires an explanation only if the discrepancy was
‘identified’ ― that is, if the claimant (or the ALJ on his behalf) noticed the conflict and
The opinion does not explicitly state when the claimant first raised his argument ― after the
hearing but before issuance of the ALJ’s decision, between issuance of the ALJ’s decision and the Appeal’s
Council’s decision on a request for review, in the district court, or in the Court of Appeals.
asked for substantiation,” id., at 446-47, and the opinion’s next sentences indicate, albeit
implicitly, the deadline for identifying a discrepancy:
Raising a discrepancy only after the hearing, as Donahue’s lawyer did, is
too late. An ALJ is not obliged to reopen the record. On the record as it
stands ― that is, with no questions asked that reveal any shortcomings in
the vocational expert’s data or reasoning ― the ALJ was entitled to reach
the conclusion she did.
Id. A claimant must raise conflicts between a vocational expert’s testimony and the
D.O.T. before the hearing concludes or he forfeits them as grounds for later challenge on
During the hearing in this case, Mr. Stiles’s attorney asked the vocational expert
only two questions: he asked for the frequency of fine manipulation for the three
identified occupations and he asked whether Mr. Stiles could perform those occupations
if he were off-task due to pain for more than twenty percent of a work day. (R. 95-96.)
Counsel asked no questions about inconsistencies between the three occupations’
vocational characteristics and the criteria of the D.O.T. Likewise, counsel did not ask the
vocational expert about any inaccuracies in his D.O.T. codes or about any staleness in the
D.O.T.’s definitions. Counsel also did not assert to the ALJ during the hearing that any
D.O.T. discrepancies, inaccuracies, or problems existed. The Commissioner argues that,
therefore, under the controlling precedent of Donahue, Mr. Stiles forfeited his current
In reply, Mr. Stiles does not mention Donahue. Instead, he argues only that the
Commissioner ignores that he did, in fact, brief his inconsistency and inaccuracy issues,
but that the ALJ failed to address them. The brief that Mr. Stiles means is his Post-Hearing
Memorandum Regarding Vocational Expert Hearing Testimony, (R. 288). Although that brief
does present Mr. Stiles’ currently asserted inconsistencies and inaccuracies in the
vocational expert’s testimony, it was submitted after the hearing, not before or during.8
It was imperative, therefore, that Mr. Stiles address Donahue’s holding and its indication
that inconsistencies asserted after the hearing are forfeited.
This is a close and uncomfortable question. The Court recognizes the obstacles
claimants face in fully and meaningfully cross-examining vocational experts at hearings.
ALJs’ hypotheticals, including RFC restrictions, are first disclosed at the hearings, as are
vocational experts’ identifications of workable occupations.
To meaningful cross-
examine a vocational expert requires consulting the D.O.T., S.C.O., and other references
at the hearings regarding the myriad vocational characteristics that define those
occupations. The task is made more difficult by what the court of appeals has repeatedly
recognized as the staleness of the D.O.T., the lack of an authoritative substitute, and the
difficulty of locating reliable alternative sources.
Donahue even questions how the
expertise of vocational experts, who must fill the gaps, reliably can be determined. While,
on the face of it, Mr. Stiles’s brief pointing out the technical errors and inconsistencies in
the vocational expert’s testimony was completed the same day as the hearing, it can
8 Apparently, Mr. Stiles’s counsel prepared the brief almost immediately after the hearing in April
2014 because it bears the same date as the hearing. It is reasonable to presume that it was received by the
Social Security Administration long before the ALJ began writing his decision which was issued in June
appear impractical to expect claimants’ representatives to be prepared to cross-examine
vocational experts and to present deficiencies in their testimonies to ALJs “on the fly”
during the brief periods at the ends of hearings when vocational experts usually testify,
or risk forfeiture of such deficiencies. It also appears to be impractical from the SSA’s
perspective if hearings must be extended or adjourned and reconvened to afford
claimants adequate opportunities to prepare cross-examination in order to avoid
However, while the Court is sympathetic to the practical difficulties placed on
claimants by Donahue’s rule, and while the Court finds that Mr. Stiles’s litany of errors
and D.O.T. inconsistencies in the vocational expert’s testimony have merit and fatally
impugn the reliability of that testimony and, consequently, the ALJ’s finding of nondisability ― it should be noted that the Commissioner did not attempt a defense on the
merits against Mr. Stiles’s argued errors ― the Court is constrained by Donahue.
Donahue’s statements that discrepancy issues are forfeited if raised after the hearing, its
supporting rationale that “[a]n ALJ is not obliged to reopen the record,”
interpretation of S.S.R. 00-4p as consistent with its holding, indicate that the forfeiture
line is drawn at the conclusion of the hearing, not the issuance of the ALJ’s decision.
Mr. Stiles forfeited his objections to the vocational expert’s testimony.
An ALJ’s decision whether to reopen a hearing to receive new and material evidence is
discretionary, 20 C.F.R. § 404.944, and is reviewed for abuse of discretion, McCleskey v. Astrue, 606 F.3d 351,
355 (7th Cir. 2010). Mr. Stiles did not challenge the ALJ’s failure to reopen the hearing.
2. Credibility determination. Mr. Stiles argues that several of the ALJ’s reasons
for finding his statements about the severity and limitations of his impairments to be less
than fully credible are not supported by substantial evidence and/or are contrary to law.
a. Lack of work at S.G.A. level. The ALJ observed that Mr. Stiles’s earnings
record shows that he has never worked at the substantial-gainful-activity level, even
before his alleged onset date, and he found that this “poor work history” “calls into
question the claimant’s ultimate motivation to work regardless of the extent to which his
impairments may restrict his ability to do so.” (R. 28.) Mr. Stiles argues that this
credibility finding is erroneous for two reasons. First, his official earnings records might
not accurate reflect his work history because there is a reference in the record that Mr.
Stiles was working “under the table.” Second, even if accurate, his work history during
the periods when he does not allege that he was disabled is irrelevant to his ability to
work now when the record proves that he suffers from several disabling impairments.
Because an ALJ is entitled to consider a claimant’s work history when making a
credibility determination, S.S.R. 96-7p, it is a reasonable inference from a claimant’s poor
work history when not disabled that he has a general, continuing poor motivation to
work regardless of the severity of later impairments. Therefore, the Court rejects Mr.
Stiles’s second assertion of error.
Mr. Stiles is correct that a report of Mr. Stiles’s visit to a mental-health-clinic during
an episode of intoxication accompanied by suicidal statements includes a notation that
Mr. Stiles reported he had lost his furniture-moving job two days earlier and that, because
he was working “under the table,” he would not qualify for unemployment. (R. 330.)
(The Court notes that Mr. Stiles also testified that he had not collected unemployment
benefits since November, 2011.
(R. 46.).) 10
Mr. Stiles argues that, because of this
“reference in the file” to under-the-table work, “the official work record may not be the
true reflection of his work record,” Memorandum in Support of Complaint [doc. 19] (“Brief”),
at 16. Therefore, he argues, the ALJ’s reliance on the official work record as evidence of
his “motivation to work” was factually erroneous.
The Court does not agree.
Mr. Stiles’s official work record entered the
administrative record early and has been available throughout the administrative
process. The ALJ questioned Mr. Stiles at the hearing about his work history and Mr.
Stiles testified about his furniture-moving work. Yet neither Mr. Stiles nor his counsel
indicated that Mr. Stiles had worked under the table or that his official work record was
unreliable as a result. It is true that the ALJ did not mention at the hearing that Mr. Stiles’s
work history was “poor” or indicate that he might construe therefrom that he has a poor
work motivation which reflects poorly on his credibility, which did not signal to Mr.
Stiles’s counsel that there was a need to address the under-the-table work. However, the
brief notation in the clinic record that Mr. Stiles reported that he was working under-thetable when he lost his furniture-moving job two days earlier does not indicate that his
entire work history was under-the-table or that his official work record is otherwise an
Mr. Stiles’s alleged onset-of-disability date is November 7, 2011. During the hearing, he denied
working after that date, (R. 46), but his testimony suggests that he worked as a furniture mover after that
date, (R. 50), and he reported to the clinic in May, 2012, that he had lost his furniture-moving job two days
previously, (R. 330).
unreliable indicator of his true work history. In fact, Mr. Stiles’s present argument is that
the medical notation means that the official work record “may not be the true reflection
of his work record;” he does not assert, even now, that all of his work or most of his work
was under-the-table or that his official record is otherwise an inaccurate description of
his work history.
In addition, the brief medical record notation of Mr. Stiles’s
unexplained, undetailed statement to the clinician ― not highlighted by either Mr. Stiles
or his counsel ― did not create an obligation on the ALJ to obtain clarification or further
details before relying on Mr. Stiles’s official work record.
Mr. Stiles has not shown that the ALJ erred.
b. External stressors. The ALJ found Mr. Stiles to be less than fully credible
regarding the severity of his mental impairments because he believed that external
familial, financial, and relationship stressors (he identified specifically only Mr. Stiles’s
limited economic means and his grief over the deaths of his brother and granddaughter)
contributed to, if not caused, his alleged symptoms of mental impairments:
Although it is quite conceivable that the claimant is experiencing at least
some of the symptoms that he has alleged, the evidence shows that these
symptoms are likely due in large part to situational factors rather than to
an inherent mental illness. As such, there is insufficient evidence in the
record to support a finding that the claimant’s condition could not improve
dramatically if these factors were to be minimized or even eliminated.
(R. 28.) Mr. Stiles argues that the ALJ erred by substituting his lay opinion for the treating
and other expert medical opinions, and that his interpretation is contradicted by the
evidence showing extensive medical treatment with psychiatric medication and a
diagnosis of borderline personality disorder. Further, there are extensive mental-health
treatment records both before and after the subject familial deaths, showing consistency
of his impairment and its effects. The Commissioner responds that the ALJ did not
substitute his personal viewpoint for the medical evidence and that evidence does not
contradict the ALJ’s finding because Mr. Stiles’s mental-health providers repeatedly
identified the stressors noted by the ALJ as factors that “contribut[ed] to his mental health
symptoms” and that “exacerbated his mental health impairments.” Memorandum in
Support of the Commissioner’s Decision [doc. 24] (“Response”), at 17-18.
The ALJ’s findings that external stressors contributed to and exacerbated Mr.
Stiles’s mental-health impairment and that the severity of his resulting symptoms would
diminish if the stressors were eliminated are not, in fact, credibility findings. There is no
finding or assertion by the ALJ that the contribution of external stressors shows that Mr.
Stiles is exaggerating, misdescribing, or lying about his symptoms or his mental
impairment. As the Commissioner points out, Mr. Stiles’s mental-health records confirm
the impact of familial and economic stresses on his mental impairment.
The only significance of the ALJ’s discussion on this point are his findings that (1)
Mr. Stiles’s symptoms are likely due in large part to “situational factors” rather than to
an “inherent mental illness” and (2) minimizing or eliminating the external stressors
could dramatically improve his “condition.”
Neither of these impact Mr. Stiles’s
credibility regarding the severity or functionally limiting effects of his mental
impairments and neither the ALJ nor the Commissioner identify any contradictory
statements by Mr. Stiles. The ALJ’s findings on this matter relate only to the nature of his
impairment and resulting symptoms, and the likelihood of improvement if external
stressor were minimized. As such, the ALJ’s reliance on these findings to impugn Mr.
Stiles’s credibility was erroneous. Because it is not apparent in what manner or to what
degree the ALJ discredited Mr. Styles’s credibility as a result, this case must be remanded
to the Commissioner for reconsideration.
c. Better functioning when sober. The ALJ found that, although Mr. Stiles has a
history of substance abuse, the abuse is episodic and he is able to function “quite well”
when he abstains from alcohol and other substances, takes his medication, and otherwise
complies with prescribed medical treatments. (R. 29.) The ALJ wrote that he considered
Mr. Stiles’s substance abuse in his decision and found it to be a nonmaterial factor in the
determination of his RFC. Id. Mr. Stiles argues that the ALJ’s findings are erroneous
because the record shows the following: (1) his mental impairments are severely limiting
even when sober; (2) he has had difficulty affording his medication since he has been
sober; (3) his psychiatrist noted that he was “tense, irritable, and had a depressed mood
and narrow affect during periods of sobriety,” Brief, at 17-18; and (4) his psychiatrist
increased his dose of mood stabilizer when he was sober in order to decrease intrusive,
obsessive thinking. Mr. Stiles argues that all four points show that he is not functioning
“quite well” when his is sober.
Mr. Stiles provides record citations for only points (2) and (3) (the same citation
for both) and (4). As only a conclusory statement, without developed legal or factual
support, his first point is moot. In support of points (2) and (3), Mr. Stiles cites one page
of the report of a follow-up visit in February 2014 to a family health services clinic for
mental-health treatment. Regarding his inability to afford his medications, the cited page
of the report includes a note that “[h]e implies that that he has had periods of time where
he has lapses in his medication because he can’t afford the 3$ [sic] copay.” (R. 933.) Mr.
Stiles’s implication to a clinician that there have been unspecified numbers of times over
unspecified dates during which he could not afford three-dollar co-pays is much too thin
a hook on which to hang his current argument that “[t]he record indicates that since Mr.
Stiles has been sober he has had difficulty affording his medication.” Brief, at 17.
Regarding Mr. Stiles’s assertion that the psychiatrist noted that he was “tense,
irritable, and had a depressed mood and narrow affect during periods of sobriety,” id., at
17-18, the citation does not support that description. The page cited includes brief notes
by the psychiatrist of Mr. Stiles’s observed condition during the February 2014 visit: Mr.
Stiles “[a]ppears tense;” he was “[s]lightly irritable but not angry or demanding;” his
mood was moderately depressed and he had a narrow range of affect,” (R. 933). There is
no suggestion in the psychiatrist’s notes connecting these observed features to “periods
of sobriety.” He did not note that Mr. Stiles was “irritable,” but slightly irritable. He did
not note that Mr. Stiles had a “depressed mood,” but that he was moderately depressed.
The psychiatrist did note that Mr. Stiles had a narrow range of affect and appeared tense,
but that was Mr. Stiles’s state on the date of that one visit and, again, the page cited
contains no opinion that these symptoms existed regularly whenever Mr. Stiles was
abstaining from substances.
To support his point that the psychiatrist increased his dosage of “mood stabilizer
medication” while he was sober, Mr. Stiles cites a page from the same report of his
February 2014 follow-up visit. That report records the psychiatrist’s plan to increase Mr.
Stiles’s Seroquel dosage “to decrease intrusive obsessive thinking.” (R. 934.) The followup report shows that Mr. Stiles reported that he had been off of Seroquel and Celexa “for
the past few weeks” and that, “since being off medications,” he experienced symptoms
including feelings of worthlessness, difficulty concentrating, memory problems,
restlessness, thoughts of “not wanting to be here,” paranoid thoughts and well as
auditory and visual hallucinations, (R. 934), all of which well could be described as
intrusive obsessive thinking. Mr. Stiles argues that his points, including this one, “is all
evidence that Mr. Stiles is not functioning ‘quite well’ when he is sober.” Brief, at 18. But
this one episode of “intrusive obsessive thinking” that caused the psychiatrist to increase
the dosage of one of Mr. Stiles’s psychiatric medications is not opposed to the ALJ’s
finding of well functioning during sobriety because the record reveals that this period of
increased psychiatric symptomology was the result of going off medications, not an
indication of Mr. Stiles’s general status during period of sobriety. In addition, the ALJ
did not find that Mr. Stiles did not have a mental impairment when he was sober or that
he had no symptoms during periods of sobriety; rather, he found only that Mr. Stiles
functioned quite well when he was sober, despite his mental impairment and the presence
Mr. Stiles has not shown that the ALJ erred by citing Mr. Stiles’s improved
functioning when sober to discredit his statements.
d. Daily activities. The ALJ wrote:
[T]he claimant is able to perform a considerable number of activities of daily
living, including maintaining his personal hygiene, cooking, cleaning, and
performing yard work, mowing the lawn, shopping, taking walks, doing
laundry and maintaining his personal finances. Although no conclusive
proof that he is able to sustain full-time work, his ability to perform these
activities on a regular basis must be considered, and it weighs against the
credibility of his allegations.
(R. 29.) Plaintiff first argued that this finding is erroneous because circuit precedent holds
that “it is harmful error to equate the ability to perform activities of daily living with the
ability to sustain competitive work because the ability to engage in limited daily activities
does not contradict allegations of disabling pain; there is inherently more flexibility in
scheduling activities of daily living; and there is no minimum standard of preference.”
Brief, at 18. The Commissioner correctly responded that the ALJ did not equate Mr.
Stiles’s ability to perform certain daily activities to the ability to perform full-time in a
workplace setting; the ALJ only used the inconsistency between Mr. Stiles’s asserted
limitations and his ability to perform the identified activities as a reason to find him less
than fully credible. In his reply, Mr. Stiles argues, for the first time, that the ALJ also erred
by failing to ask Mr. Stiles about, and to address in his decision, how he performed the
cited activities, their frequency, and any difficulties that he encountered when he
performed them ― in short, by failing to elicit and evaluate evidence of the quality and
frequency of Mr. Stiles’s activities.
The Court agrees with the Commissioner that the ALJ did not cite Mr. Stiles’s
activities as evidence of his ability to sustain full-time employment. However, the Court
agrees with Mr. Stiles that, citing his activities as an indication of his lack of full
credibility, the ALJ failed to articulate a comparison of Mr. Stiles’s activities as performed
with his discredited statements about his functional limitations. All the ALJ articulated
was his conclusion and that is insufficient.
Because it is not apparent how much weight the ALJ assigned to this finding, the
Court cannot find that the ALJ’s error was harmless and the case must be remanded for
reconsideration and rearticulation.
e. Routine and conservative treatment ― physical impairments. Another reason
why the ALJ found Mr. Stiles to be not fully credible is that, except for foot surgery, he
received only conservative, routine treatment. Generally, the ALJ wrote that Mr. Stiles is
“mainly” on oral medications to control his symptoms and he has not required aggressive
care for his COPD, heart condition, or degenerative disc disease. He cited the follow
specific evidence: (1) Mr. Stiles is on oxygen at night for COPD which appears to have
stabilized the condition; (2) he does not require oxygen during the day; (3) his physical
examinations are inconsistent when he doesn’t know that he is being watched, which is
evidence that he is exacerbating his symptoms either in order obtain drugs or pecuniary
gain (disability benefits); (4) there is no evidence that he now requires a cane to ambulate;
and (5) post-operative examinations show that his foot surgery was a success.
Mr. Stiles argues that the ALJ erred regarding his COPD because (1) his need for
oxygen at night is an indication that his COPD is severe; (2) the ALJ does not mention
what aggressive treatment would have confirmed his COPD’s disabling severity; (3) his
doctor has labeled his COPD as “very advanced;” (4) the consulting examining doctor
commented that his most limiting issues were his shortness of breath and dyspnea on
exertion; (5) the statement that his COPD has stabilized with nighttime oxygen is not
supported by the record; (6) there is evidence of permanent changes in his lungs; and (7)
there is substantial evidence that his COPD is severe. Mr. Stiles argues that the ALJ erred
with respect to his degenerative disc disease because (1) he started physical therapy
shortly before the hearing, and (2) MRI and CT scans in the record show significant
degenerative disc disease in his cervical spine.
The ALJ already found that Mr. Stiles’s COPD is severe at step two of the
sequential evaluation process. The significant question is how functionally limiting it is
and part of answering that question is determining how credible Mr. Stiles is when he
describes his disabling-level symptoms and limitations. Mr. Stiles contends that his need
for oxygen at night indicates that his COPD is severe but that inference does not address
the condition’s functional limitations and he provides no record citation to expert medical
evidence stating that his need for oxygen at night confirms that the condition is at a
disabling level of limitation. His doctors’ descriptions that his COPD is “very advanced”
and is one of his two most limiting issues, and that there is evidence of permanent
changes in his lungs, again, does not address the resulting degree of functional limitation
that Mr. Stiles has. Similarly, Mr. Stiles’ arguments that he started physical therapy for
his degenerative disc disease shortly before the hearing and that scans show significant
disease in his cervical spine do not show that the ALJ erred in finding Mr. Stiles not fully
credible regarding the degree of functional limitation caused by that condition.
Mr. Stiles is correct that the ALJ’s statement that he is not fully credible in part
because he “he has not required any aggressive care for his COPD,” (R. 29), is erroneous.
The ALJ failed to cite any expert medical evidence in the record describing the aggressive
treatment that would be expected if Mr. Stiles’s COPD were as functionally limiting as
he alleged. The ALJ is not qualified to make such determinations on his own.
The Court notes that Mr. Stiles did not challenge the ALJ’s observations that he is
exaggerating his symptoms during certain examinations, that there is no evidence that
he requires a cane, that post-operative examinations show that his foot surgery was
successful, and that he admitted to walking to the store.
This case will be remanded for reconsideration of the ALJ’s finding that Mr. Stiles
is not entirely credible regarding the degree of functional limitation he has as a result of
his COPD because he has not required any aggressive care for that condition.
f. Conservative treatment ― mental impairment. The ALJ found that Mr. Stiles
has received only conservative treatment for his mental impairments except for when he
is abusing alcohol. It is when he is abusing alcohol that he cuts himself and requires
emergency-room care and/or hospitalizations. Under this head, the ALJ also found that
(1) Mr. Stiles’s reports that he stopped drinking a year before the hearing are inconsistent
with the record evidence that he received emergency-room care for alcohol abuse four
months earlier; (2) when Mr. Stiles is not drinking, he does not have suicidal thoughts
and has GAF scores in the moderate range; (3) Mr. Stiles is not compliant with and abuses
his medications, despite admitting that medications help his symptoms; and (4) based on
Mr. Stiles’s moderate GAF scores and his high degree of functioning around his home,
findings of moderate limitations in the areas of social functioning and concentration,
persistence, or pace, and the moderate mental limitations in the RFC are warranted. (R.
Mr. Stiles’s only argument is with the ALJ’s citation of his “high degree of
functioning around his home” for which he refers to his earlier argument that the ALJ’s
reliance on his activities of daily living is erroneous. For the reasons expressed above,
the Court finds that Mr. Stiles has shown that the ALJ erred in relying on his activities of
daily living without articulating an explanatory comparison of the activities with his
statements. However, considering the several other unchallenged reasons articulated by
the ALJ to find Mr. Stiles’s statements to be less than fully credible regarding the
limitations caused by his mental impairment, the Court finds that the ALJ’s error was
g. Medical opinion. The ALJ cited the lack of any treating or examining medical
opinion that Mr. Stiles is disabled or limited to a greater extent than in his defined RFC.
Mr. Stiles argues that this is erroneous because disability is an issue reserved to the
Commissioner and an ALJ is not required to accept such a medical opinion. “It is harmful
error to conclude that the lack of such statement means that he is not disabled when the
presence of such a statement would not warrant the finding of disability.” Brief, at 20.
Mr. Stiles again confuses the ALJ’s credibility rationale for his ultimate disability
determination rationale. An ALJ is required to consider all medical evidence in the record
and, while he may not assign controlling weight or “special significance” to medical
opinions on issues reserved to the Commissioner, 20 C.F.R. § 416.927(d), he “must always
carefully consider medical source opinions about any issue, including opinions about
issues that are reserved to the Commissioner,” S.S.R. 96-5p. In light of the many
examinations and treatments that Mr. Stiles has received, the lack of any finding or
opinion by any of his treating or examining physicians that he is disabled or as
functionally limited as he alleges is a circumstance on which the ALJ legitimately may
have relied, among the myriad other circumstances reflected in the record, as an element
supporting his finding that Mr. Stiles’s statements regarding his functional limitations
are not entirely credible.
Mr. Stiles has not shown error.
The ALJ found that, if his impairments were as severe and
debilitating as he alleged, “he would have done everything possible to stop smoking.”
(R. 30.) However, despite what the ALJ found to be the well-documented negative effects
of smoking on all body systems, recommendations by several physicians to stop, and his
severe impairment of COPD, he continues to smoke up to three packs of cigarettes each
day. Id. He found that “these factors do not support his allegations that his impairments
are so severe as to cause him to be unable to perform any work-related activities.” Id.
Mr. Stiles argues that the ALJ’s finding contravenes the teaching of Shramek v. Apfel, 226
F.3d 809, 813 (7th Cir. 2000): “[I]t is extremely tenuous to infer from the failure to give up
smoking that the claimant is incredible when she testified that the condition is serious or
painful. Given the addictive nature of smoking, the failure to quit is as likely attributable
to factors unrelated to the effect of smoking on a person’s health.” He also points out that
he has made efforts to quit smoking and succeeded as far as reducing his use from three
packs to three-quarter packs each day.
The Commissioner responds that the ALJ is on “more solid ground” than the ALJ
was in Shramek, but she does not explain why. She also points to evidence that Mr. Stiles
declined offers of help to quit smoking. Finally, she argues that any error was harmless
in light of the numerous other reasons itemized by the ALJ to find Mr. Stiles not fully
Mr. Stiles has shown error. The Commissioner has not shown that Shramek does
not control the issue here. The evidence records that Mr. Stiles did attempt to quit
smoking, with limited success. The fact that he also declined offers of help is consistent
with Shramek’s recognition of the power of addiction, often unresisted even in the face of
severe, debilitating COPD and other conditions. Finally, the Court is not convinced that
this error was harmless, particularly considering the other credibility findings that are
Mr. Stiles has shown that the ALJ’s reliance, in part, on his continued smoking as
evidence that he is not entirely credible regarding the severity and resulting functional
limitation of his COPD is erroneous. This finding is based on the ALJ’s failure to address
the impact of the addictive nature of smoking and Mr. Stiles’s attempts to quit. This
case will be remanded for reconsideration and/or re-articulation of this finding.
The errors found above render the ALJ’s decision to deny Mr. Stile’s claim for
benefits not supported by substantial evidence and the result of legal error. Plaintiff’s
claim for S.S.I. benefits will be reversed and remanded to the Commissioner for reevaluation and re-articulation based on the errors explained above:
1. The Commissioner shall reconsider the credibility of Mr. Stiles’s statements
about the severity and limitations of the symptoms of his mental impairments without
considering the contribution of financial and grief stressors to his mental impairments
and the likelihood that he would experience improvement in symptoms and/or
limitations if those stressors were eliminated. The Court does not rule that those findings
were erroneous for all purposes; they were erroneous only for the purpose of evaluating
the credibility of Mr. Stiles’s statements regarding the severity and limitations of his
2. The Commissioner shall reconsider the effect of Mr. Stiles’s activities of daily
living on the credibility of his statements about the severity and limitations of the
symptoms of his impairments. Before finding that the level of his activities is inconsistent
with his statements, a comparison must be articulated of specific activities with specific
statements and an explanation must be articulated of any inconsistencies found.
3. The Commissioner shall re-evaluate the credibility of Mr. Stiles’s statements
about the severity and functional limitations of his COPD impairment in relation to the
nature of his treatment. Before finding that his statements are not fully credible because
his treatment has been routine or conservative, or because there has been a lack of
aggressive care, expert medical opinion declaring the specific non-routine, nonconservative, or more aggressive treatments that medically would be expected must be
4. The Commissioner shall re-evaluate the credibility of Mr. Stiles’s statements
about the severity and functional limitations of his impairments in relation to his
continued smoking. If the Commissioner adheres to her finding that Mr. Stiles’s failure
to quit smoking tends to discredit his statements, she must articulate a consideration of
the addictive nature of smoking and Mr. Stiles’s attempts to quit smoking.
Finally, because Mr. Stiles’s claim is being remanded because of the above errors,
the Court encourages the Commissioner on remand also to consider whether to
reconsider the occupations that the vocational expert identified that Mr. Stiles can
perform. This is only a suggestion, in light of the forfeited, but apparent, errors in the
vocational expert’s testimony described above. It is not a basis for the Court’s reversal
and remand or part of its instructions on remand. The rule of forfeiture properly has
been applied here, but, perhaps, the Commissioner might exercise her discretion in light
of the practicalities of the situation.
DONE this date: 3/17/2017
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