DAVISON v. COLVIN
ENTRY ON JUDICIAL REVIEW - For the reasons set forth above, the decision of the Commissioner is REVERSED AND REMANDED for further proceedings consistent with this Entry. Signed by Judge William T. Lawrence on 8/24/2017.(JDC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
) Cause No. 1:16-cv-894-WTL-TAB
ENTRY ON JUDICIAL REVIEW
Plaintiff Deanna Davison requests judicial review of the final decision of the Defendant,
Nancy A. Berryhill, Acting Commissioner of the Social Security Administration
(“Commissioner”), denying Davison’s applications for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (“the Act”) and Supplemental Security Income (“SSI”)
under Title XVI of the Act. The Court, having reviewed the record and the briefs of the parties,
rules as follows.
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
Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill automatically
became the Defendant in this case when she succeeded Carolyn Colvin as the Acting
Commissioner of Social Security on January 23, 2017.
work, but any other kind of gainful employment which 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). 2 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), he 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 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). In order to be affirmed, the
ALJ must articulate his analysis of the evidence in his decision; while he “is not required to
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.
address every piece of evidence or testimony presented,” he must “provide an accurate and
logical bridge between the evidence and [his] conclusion that a claimant is not disabled.”
Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012). “If a decision lacks evidentiary support or
is so poorly articulated as to prevent meaningful review, a remand is required.” Id. (citation
Davison protectively filed for DIB and SSI on May 21, 2012, alleging that she became
disabled on November 15, 2011, due to Chiari malformation, migraines, epilepsy, COPD, and
depression. Her application was denied initially and upon reconsideration on February 13, 2013.
Thereafter, Davison requested and received a hearing before an Administrative Law
Judge (“ALJ”). A hearing, during which Davison was represented by counsel, was held by ALJ
Ronald Jordan on October 28, 2014. An impartial vocational expert also appeared and testified at
the hearing. The ALJ issued his decision denying Davison’s claim on December 11, 2014. After
the Appeals Council denied her request for review, Davison filed this timely appeal.
THE ALJ’S DECISION
At step one of the sequential evaluation, the ALJ determined that Davison had not
engaged in substantial gainful activity since her alleged disability onset date. The ALJ found that
Davison met the disability insured status requirements of the Act (for purposes of DIB) through
March 31, 2016. At steps two and three, the ALJ concluded the claimant suffered from the
following severe impairments: COPD, seizure disorder, migraine headaches, and obesity, but
that her impairments, singly or in combination, did not meet or medically equal a listed
impairment. At step four, the ALJ determined that Davison had the residual functional capacity
(“RFC”) to perform a limited range of light work, and specifically could
lift, carry, push, or pull 20 pounds occasionally and 10 pounds frequently; stand
and walk for six hours during an eight-hour workday; sit for six hours during an
eight-hour workday; occasionally stoop, balance, crouch, kneel, crawl, and climb
ramps or stairs; never climb ladders, ropes, or scaffolds; never work around
hazards such as unprotected heights or unguarded moving machinery; never drive;
and never be exposed to concentrated levels of dust, fumes, gases, or strong
R. at 25. The ALJ concluded Davison was able to perform her past relevant work as an assistant
manager, security guard, and security superintendent. Accordingly, the ALJ concluded that
Davison was not disabled as defined by the Act.
EVIDENCE OF RECORD
The medical evidence of record is aptly set forth in Davison’s brief (Dkt. No. 15) and
need not be recited here. Specific facts are set forth in the discussion section below where
The ALJ’s Failure to Find that Davison’s Cervical
Degenerative Disc Disease was Severe
Davison argues that the ALJ’s decision that Davison’s cervical degenerative disc disease
was not severe is not supported by substantial evidence. Regarding Davison’s cervical
degenerative disc disease, the ALJ found the following:
As to the claimant’s cervical degenerative disc disease, on April 5, 2013,
during the claimant’s establish [sic] of care appointment at HealthNet, she
reported taking Vicodin, but only reported seizures, depression, migraine
headache, chronic obstructive pulmonary disease, emphysema, and anxiety in her
medical history. On review of symptoms she reported neck pain and on
examination she had stiffness and decreased range of motion of the neck. The
claimant continued to receive medication refills for her reported neck pain.
On September 19, 2014, the claimant had an MRI of the cervical spine at
Indiana University Health. The impression from this MRI was that the claimant
had C5-C6 disc bulge producing mild spinal canal stenosis and right foraminal
stenosis. The claimant has only continued to receive medication for her reported
pain. She has not participated in any physical therapy or pain management nor has
she been recommended for orthopedic evaluation, steroid injections, or surgery.
R. at 21-22 (citations omitted)
An impairment is non-severe only when the impairment is so slight that it has no more
than a de-minimis effect on the ability to perform basic work activities. Social Security Ruling
85-28. “An impairment is not severe if it does not significantly limit your physical or mental
abilities to do basic work activities.” 20 C.F.R 404.1521(a) and 416.921(a).
“The Step 2 determination is ‘a de minimis screening for groundless claims’ intended to
exclude slight abnormalities that only minimally impact a claimant's basic activities,” O'ConnorSpinner v. Colvin, 832 F.3d 690, 697 (7th Cir. 2016) (quoting Thomas v. Colvin, 826 F.3d 953,
960 (7th Cir. 2016)); see also Meuser v. Colvin, 838 F.3d 905, 910 (7th Cir. 2016). The Seventh
Circuit has categorized errors in determining an impairment’s severity as harmless as long as the
ALJ otherwise finds one severe impairment, continues through the steps in the evaluation
process, and “consider[s] all of [the claimant]’s severe and non-severe impairments, the objective
medical evidence, [the claimant's] symptoms, and her credibility when determining her RFC
immediately after step 3.” Curvin v. Colvin, 778 F.3d 645, 649 (7th Cir. 2015); see also Arnett v.
Astrue, 676 F.3d 586, 591 (7th Cir. 2012) (“Deciding whether impairments are severe at Step 2 is
a threshold issue only; an ALJ must continue on to the remaining steps of the evaluation process
as long as there exists even one severe impairment. Here the ALJ categorized two impairments
as severe, and so any error of omission [at Step 2 regarding the severity of other impairments]
was harmless.”) (citations omitted).
The Court need not determine whether the ALJ erred in not finding that Davison’s
cervical degenerative disc disease was severe. Here, the ALJ concluded that Davison had four
severe impairments–COPD, seizure disorder, migraine headaches, and obesity. At that point, the
ALJ crossed step two’s threshold and continued the evaluation process. If the ALJ erred in
determining that Davison’s cervical degenerative disc disease was not severe, such error will be
deemed harmless if the ALJ considered that impairment, along with all of Davison's other severe
and non-severe impairments, in making an RFC determination.
The ALJ’s RFC Finding
Although the ALJ stated that he “considered all symptoms and the extent to which these
symptoms can reasonably be accepted as consistent with the objective medical evidence and
other evidence” and lists “chronic obstructive pulmonary disease; seizure disorder; migraine
headaches; and obesity,” see R. at 24, “an ALJ is required to consider the aggregate effects of a
claimant’s impairments, including impairments that, in isolation, are not severe,” Getch v.
Astrue, 539 F.3d 473, 483 (7th Cir. 2008) (citing 20 C.F.R. § 404.1523); see also Golembiewski
v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003) (“[T]he ALJ needed to consider the aggregate
effect of this entire constellation of ailments-including those impairments that in isolation are not
severe.”). Here, the RFC fails to sufficiently taken into account the evidence concerning
Davison’s cervical degenerative disc disease, COPD, and migraines. For example, the ALJ did
not explain how standing and walking for six hours in an eight-hour work day is consistent with
Davison’s pulmonary function testing results and her reported COPD symptoms, including the
need for frequent rest breaks, phlegm production, shortness of breath at night, shortness of breath
at rest, shortness of breath with exertion, chest tightness, and wheezing. Because the ALJ did not
consider the aggregate effect of Davison’s impairments, remand is required to allow the ALJ to
consider the combined effects of all of Davison’s impairments, both severe and non-severe, in
determining her RFC.
C. The ALJ’s Credibility Finding
Davison asserts that the ALJ erred in his finding that Davison’s statements concerning
the severity, intensity, persistence and limited effect of her symptoms were not entirely credible.
The Court agrees. Davison testified that she cannot walk to her mailbox without wheezing and
using her inhaler and that it takes her two to three hours to vacuum because she has to sit down
and rest periodically. Further, she testified that she can only be on her feet for fifteen to twenty
minutes before she has to stop because she is wheezing and feels lightheaded and that she has to
walk slowly at the grocery store and take rest breaks.
Under the standard that was applicable at the time of the ALJ’s decision, with regard to
subjective symptoms such as fatigue and shortness of breath, if a claimant had a medically
determinable impairment that was reasonably expected to produce these symptoms, then the ALJ
was required to evaluate the credibility of the claimant's testimony regarding the extent of those
symptoms. “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, 3 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).
S.S.R. 96-7p has been superseded by S.S.R. 16-3p, which the agency explained
“eliminate[d] the use of the term ‘credibility’ from our sub-regulatory policy, as our regulations
do not use this term” and “clarif[ied] that subjective symptom evaluation is not an examination
of an individual’s character.”
In this case, the ALJ determined that Davison’s “medically determinable impairments
could reasonably be expected to cause the alleged symptoms; however, the claimant's statements
concerning the intensity, persistence and limiting effects of these symptoms are not entirely
credible for the reasons explained in this decision.” R. at 27. The ALJ stated that he did not find
that Davison’s activities of daily activities were not limited to the extent one would expect, given
the complaints of disabling symptoms and limitations. To support his conclusion, the ALJ noted
that Davison can dress herself, bathe herself, cook, and clean. However, the ALJ failed to
address the difficulties Davison had while performing these tasks and the need for rest breaks.
“The 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.” Craft v. Astrue, 539 F.3d 668, 678
(7th Cir. 2008) (citation omitted). In addition, “[a]lthough an ALJ's credibility determinations are
generally entitled to deference, this Court has ‘greater freedom to review credibility
determinations based upon objective factors or fundamental implausibilities, rather than
subjective considerations’ such as the claimant’s demeanor.” Ghiselli v. Colvin, 837 F.3d 771,
778 (7th Cir. 2016) (quotation omitted). The ALJ did not give sufficient reason for discrediting
Davison. This was error that must be corrected on remand by applying S.S.R. 16-3p.
For the reasons set forth above, the decision of the Commissioner is REVERSED AND
REMANDED for further proceedings consistent with this Entry.
SO ORDERED: 8/24/17
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
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