CLARK v. BERRYHILL
ENTRY REVIEWING THE COMMISSIONER'S DECISION - Plaintiff Tammy Clark applied for disability insurance benefits from the Social Security Administration ("SSA") on August 14, 2013, alleging an onset date of December 29, 2012. [Filing N o. 13 -5 at 2.] Her application was initially denied on January 15, 2014, [Filing No. 13 -4 at 2], and upon reconsideration on June 20, 2014, [Filing No. 13 -4 at 8]. Administrative Law Judge Jody Hilger Odell (the "ALJ") held a heari ng on October 8, 2015. [Filing No. 13 -2 at 32-79.] The ALJ issued a decision on December 2, 2015, concluding that Ms. Clark was not entitled to receive disability insurance benefits. [Filing No. 13 -2 at 9.] The Appeals Council denied review on December 23, 2016. [Filing No. 13 -2 at 2.] On February 16, 2017, Ms. Clark timely filed this civil action, asking the Court to review the denial of benefits pursuant to 42 U.S.C. § 405(g). [Filing No. 1 .] "The standard for disabilit y claims under the Social Security Act is stringent." "Even claimants with substantial impairments are not necessarily entitled to benefits, which are paid for by taxes, including taxes paid by those who work despite serious physical or mental impairments and for whom working is difficult and painful." Taken together, the Court can find no legal basis presented by Ms. Clark to reverse the ALJ's decision that she was not disabled during the relevant time period. Therefore, the decision below is AFFIRMED. Final judgment will issue accordingly. (SEE ENTRY). Signed by Judge Jane Magnus-Stinson on 2/12/2018.(APD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TAMMY G. CLARK,
NANCY A. BERRYHILL, Acting Commissioner )
of Social Security,
ENTRY REVIEWING THE COMMISSIONER’S DECISION
Plaintiff Tammy Clark applied for disability insurance benefits from the Social Security
Administration (“SSA”) on August 14, 2013, alleging an onset date of December 29, 2012. [Filing
No. 13-5 at 2.] Her application was initially denied on January 15, 2014, [Filing No. 13-4 at 2],
and upon reconsideration on June 20, 2014, [Filing No. 13-4 at 8]. Administrative Law Judge
Jody Hilger Odell (the “ALJ”) held a hearing on October 8, 2015. [Filing No. 13-2 at 32-79.] The
ALJ issued a decision on December 2, 2015, concluding that Ms. Clark was not entitled to receive
disability insurance benefits. [Filing No. 13-2 at 9.] The Appeals Council denied review on
December 23, 2016. [Filing No. 13-2 at 2.] On February 16, 2017, Ms. Clark timely filed this
civil action, asking the Court to review the denial of benefits pursuant to 42 U.S.C. § 405(g).
[Filing No. 1.]
STANDARD OF REVIEW
“The Social Security Act authorizes payment of disability insurance benefits … to
individuals with disabilities.” Barnhart v. Walton, 535 U.S. 212, 214 (2002). “The statutory
definition of ‘disability’ has two parts. First, it requires a certain kind of inability, namely, an
inability to engage in any substantial gainful activity. Second, it requires an impairment, namely,
a physical or mental impairment, which provides reason for the inability. The statute adds that the
impairment must be one that has lasted or can be expected to last … not less than 12 months.” Id.
When an applicant appeals an adverse benefits decision, this Court’s role is limited to
ensuring that the ALJ applied the correct legal standards and that substantial evidence exists for
the ALJ’s decision. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004) (citation omitted). For
the purpose of judicial review, “[s]ubstantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id. (quotation omitted). Because the ALJ
“is in the best position to determine the credibility of witnesses,” Craft v. Astrue, 539 F.3d 668,
678 (7th Cir. 2008), this Court must afford the ALJ’s credibility determination “considerable
deference,” overturning it only if it is “patently wrong.” Prochaska v. Barnhart, 454 F.3d 731,
738 (7th Cir. 2006) (quotations omitted).
The ALJ must apply the five-step inquiry set forth in 20 C.F.R. § 404.1520(a)(4)(i)-(v),
evaluating the following, in sequence:
(1) whether the claimant is currently [un]employed; (2) whether the claimant has a
severe impairment; (3) whether the claimant’s impairment meets or equals one of
the impairments listed by the [Commissioner]; (4) whether the claimant can
perform her past work; and (5) whether the claimant is capable of performing work
in the national economy.
Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000) (citations omitted) (alterations in original). “If
a claimant satisfies steps one, two, and three, she will automatically be found disabled. If a
claimant satisfies steps one and two, but not three, then she must satisfy step four. Once step four
is satisfied, the burden shifts to the SSA to establish that the claimant is capable of performing
work in the national economy.” Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
After Step Three, but before Step Four, the ALJ must determine a claimant’s residual
functional capacity (“RFC”) by evaluating “all limitations that arise from medically determinable
impairments, even those that are not severe.” Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009).
In doing so, the ALJ “may not dismiss a line of evidence contrary to the ruling.” Id. The ALJ
uses the RFC at Step Four to determine whether the claimant can perform her own past relevant
work and if not, at Step Five to determine whether the claimant can perform other work. See 20
C.F.R. § 404.1520(iv), (v). The burden of proof is on the claimant for Steps One through Four;
only at Step Five does the burden shift to the Commissioner. See Clifford, 227 F.3d at 868.
If the ALJ committed no legal error and substantial evidence exists to support the ALJ’s
decision, the Court must affirm the denial of benefits. Barnett, 381 F.3d at 668. When an ALJ’s
decision is not supported by substantial evidence, a remand for further proceedings is typically the
appropriate remedy. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 355 (7th Cir. 2005). An
award of benefits “is appropriate where all factual issues have been resolved and the record can
yield but one supportable conclusion.” Id. (citation omitted).
Ms. Clark was 49 years old at the time she applied for disability insurance benefits. [Filing
No. 13-5 at 2.] She has completed high school and previously worked as a certified nursing
assistant. [Filing No. 13-2 at 23.] 1
Ms. Clark provided a detailed description of her medical history and treatment in her brief.
[Filing No. 15; Filing No. 22 (Commissioner incorporated by reference).] Because that discussion
implicates sensitive and otherwise confidential medical information concerning Ms. Clark, the
Court will simply incorporate those facts by reference and only detail specific facts as necessary
to address the parties’ arguments.
The ALJ followed the five-step sequential evaluation set forth by the SSA in 20 C.F.R. §
404.1520(a)(4) and ultimately concluded that Ms. Clark is not disabled. [Filing No. 13-2 at 25.]
The ALJ found as follows:
At Step One, the ALJ found that Ms. Clark has not engaged in substantial gainful activity 2
since December 29, 2012, the alleged onset date. [Filing No. 13-2 at 14.]
At Step Two, the ALJ found that Ms. Clark has the following severe impairments:
degenerative disc disease, arthritis, type two diabetes with neuropathy, hypertension, low
vision in the right eye, and obesity. [Filing No. 13-2 at 14.]
At Step Three, the ALJ found that Ms. Clark does not have an impairment or combination
of impairments that meets or medically equals the severity of one of the listed impairments.
[Filing No. 13-2 at 16.]
After Step Three but before Step Four, the ALJ found that Ms. Clark has the RFC to
“perform a significant range of light work. In this regard, she further can occasionally
balance, stoop, kneel, crouch, crawl, climb ramps and stairs, and climb ladders, ropes, and
scaffolds. The claimant can frequently reach in all directions, including overhead. The
claimant is unable to work in a position requiring depth perception. She can never work at
unprotected heights or around moving mechanical parts. She can never drive.” [Filing No.
13-2 at 23.]
At Step Four, the ALJ concluded, after considering Ms. Clark’s age, education, work
experience, and RFC and relying on the testimony of the vocational expert (“VE”), that
Ms. Clark is incapable of performing her past relevant work as a certified nursing assistant.
[Filing No. 13-2 at 23.]
At Step Five of the analysis, the ALJ found that considering Ms. Clark’s age, education,
and RFC, there were jobs that existed in significant numbers in the national economy that
Ms. Clark could have performed through the date of the decision. [Filing No. 13-2 at 24.]
Substantial gainful activity is defined as work activity that is both substantial (i.e., involves
significant physical or mental activities) and gainful (i.e., work that is usually done for pay or
profit, whether or not a profit is realized). 20 C.F.R. § 404.1572(a).
Ms. Clark argues that the ALJ cherry-picked evidence to support her conclusion while
ignoring conflicting evidence, and misstated findings to minimize their significance. [Filing No.
15 at 15-16.] Ms. Clark further argues that the ALJ’s consideration of Ms. Clark’s activities of
daily living (“ADLs”) is illogical and lacks support in the record. [Filing No. 15 at 17-18.]
Connected to that argument, Ms. Clark asserts that it is difficult to reconcile that her reported
limitations are directly reflected in consultative examination findings. [Filing No. 15 at 17.]
Finally, Ms. Clark argues that the ALJ failed to take into consideration Ms. Clark’s exemplary
work history when considering her credibility. [Filing No. 15 at 19.]
The Commissioner argues that the ALJ properly relied upon uncontradicted medical
opinions in assessing Ms. Clark’s functional limitations. [Filing No. 22 at 3.] The Commissioner
also argues that the ALJ’s assessment of subjective allegations was not patently wrong and
considered the factors specified in the regulations.
[Filing No. 22 at 4-10.]
Commissioner argues that the ALJ is not required to discuss work history in assessing credibility.
[Filing No. 22 at 10.]
A. Credibility Determination
While Ms. Clark makes separate arguments organized by lines of Seventh Circuit
precedent, the Court notes that all of them fall under the umbrella of an attack on the ALJ’s
credibility finding. An ALJ’s credibility determination will not be overturned unless “patently
wrong.” Herron v. Shalala, 19 F.3d 329, 335 (7th Cir. 1995). See also Elder v. Astrue, 529 F.3d
408, 413–14 (7th Cir. 2008) (“It is only when the ALJ's determination lacks any explanation or
support that we will declare it ‘patently wrong’”); Prochaska, 454 F.3d at 738 (“Only if the trier
of facts grounds [her] credibility finding in an observation or argument that is unreasonable or
unsupported can the finding be reversed.”). Nevertheless, “an ALJ must adequately explain [her]
credibility finding by discussing specific reasons supported by the record.” Pepper v. Colvin, 712
F.3d 351, 367 (7th Cir. 2013) (citing Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009); SSR 967p, 1996 WL 374186, at *2 (Jul. 2, 1996) (“The determination or decision must contain specific
reasons for the finding on credibility, supported by the evidence in the case record, and must be
sufficiently specific to make clear to the individual and to any subsequent reviewers the weight
the adjudicator gave to the individual’s statements and the reasons for that weight.”). Social
Security Ruling 96-7p provides that the ALJ should first look to the objective medical evidence
for support and then:
In recognition of the fact that an individual's symptoms can sometimes suggest a
greater level of severity of impairment than can be shown by the objective medical
evidence alone, 20 CFR 404.1529(c) and 416.929(c) describe the kinds of evidence,
including the factors below, that the adjudicator must consider in addition to the
objective medical evidence when assessing the credibility of an individual's
1. The individual's daily activities;
2. The location, duration, frequency, and intensity of the individual's pain or other
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the
individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received for
relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to relieve
pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20
minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual's functional limitations and
restrictions due to pain or other symptoms.
SSR 96-7p, 1996 WL 374186, at *2 (Jul. 2, 1996). 3
The Court finds that the ALJ’s credibility is not patently wrong under the deferential
standard. While the Court does not completely agree with every reason the ALJ supplied or the
weight attributed to certain evidence, the Court’s review is limited. To determine whether
substantial evidence exists, the Court reviews the record as a whole but is not allowed to substitute
its judgment for the ALJ’s “by reconsidering facts, reweighing evidence, resolving conflicts in
evidence, or deciding questions of credibility.” Williams v. Apfel, 179 F.3d 1066, 1071-72 (7th
Cir. 1999) (internal quotations omitted). The ALJ accurately summarized the governing standard.
[Filing No. 13-2 at 17.] The ALJ detailed Ms. Clark’s subjective complaints to her treating
providers and her consistent testimony at the hearing. [Filing No. 13-2 at 18.] She accurately
summarized the objective diagnostic imaging of record and noted where objective imaging was
absent. [Filing No. 13-2 at 18-19.] The ALJ summarized relevant clinical examination findings,
both supportive and conflicting. [Filing No. 13-2 at 19.] The ALJ commented that in her opinion
Ms. Clark had not had much treatment for the allegedly disabling conditions that caused her pain,
but had a good response to opioid medication. [Filing No. 13-2 at 19.] The ALJ explored Ms.
Clark’s explanation for having limited treatment and not continuing to use narcotics, but rather
over-the-counter medication for her pain, and took care to articulate which statements she found
credible and which statements she did not. [Filing No. 13-2 at 19.] The ALJ commented on the
evidence of additional treatment measures that Ms. Bryant may have attempted and noted where
On March 28, 2016, Social Security Ruling 16-3p became effective and issued new guidance
regarding how a disability claimant's statements about the intensity, persistence, and limiting
effects of symptoms are to be evaluated. See SSR 16-3P (S.S.A.), 2016 WL 1119029 (Mar. 28,
2016). Under SSR 16-3p, an ALJ now assesses a claimant's subjective symptoms rather than
assessing her “credibility.” Id. However, SSR 16-3p is not retroactive; therefore, the “credibility
determination” in the ALJ's December 2, 2015 decision is governed by the standard of SSR 96-7p.
SSR 16-3P, 2017 WL 5180304 at *1 (Oct. 25, 2017).
she found testimony inconsistent with a reference in the record that Ms. Bryant had completed a
home exercise program. [Filing No. 13-2 at 19.] She noted that Ms. Bryant’s treatment was
limited to pain management, but that she was not using narcotic medication that had reportedly
been effective in improving her functionality, and also noted the absence of other measures, such
as injections and surgical intervention. [Filing No. 13-2 at 19-20.] The ALJ summarized Ms.
Bryant’s statements concerning her ADLs. [Filing No. 13-2 at 21-22.] Finally, she concluded that
Ms. Bryant was “not entirely credible.” [Filing No. 13-2 at 22.]
The Court finds that the ALJ did not simply note the standard and provide a conclusion,
but actually applied the relevant evidence of record to the factors specified and took care to address
evidence that both supported and conflicted with her conclusions. Accordingly, the Court cannot
disturb her findings and declines to do so now. However, the analysis will continue to address Ms.
Bryant’s specific arguments.
B. Cherry-Picking Evidence
Ms. Clark’s argument that the ALJ cherry-picked evidence of pain complaints is without
merit. The Court agrees that the ALJ’s selection of one instance where Ms. Clark reported her
neck pain to be a “mild 3 out of 10” is of limited import to her overall finding. [Filing No. 13-2 at
18.] Pain will often wax and wane. More importantly, she reported more severe 7 out of 10 pain
in her lower back during the very same visit, [Filing No. 13-9 at 3], and as Ms. Bryant notes the
predominance of her pain ratings far exceed the one reference, [Filing No. 15 at 15 (citing nineteen
other references to higher reported pain levels)].
However, the ALJ did not ignore these
complaints. To the contrary, the ALJ carefully laid out a discussion of Ms. Clark’s complaints of
pain, both in the record and during testimony, as noted above. In fact, of the nineteen instances
referenced by Ms. Clark, the ALJ directly cited six of them (and one not mentioned by Ms. Clark).
[Filing No. 13-2 at 18.] The decision when read as a whole does not support a claim that the ALJ
attempted to incorrectly state that Ms. Bryant had not predominantly complained of severe pain.
Ms. Clark is correct that the ALJ did not accurately cite the consultative examiner’s
conclusion that her pain appeared “at least moderate.” [Filing No. 13-2 at 18 (“seemed moderate”)
(citing Filing No. 13-8 at 67 (emphasis added)).]
However, the distinction appears fairly
innocuous. The Seventh Circuit has held that even if part of an “ALJ’s credibility determination
was not without fault,” the court will still uphold an ALJ’s credibility assessment if the ALJ
provides other reasons that were “adequately supported by the evidence in the record.” McKinzey
v. Astrue, 641 F.3d 884, 890-91 (7th Cir. 2011); Simila v. Astrue, 573 F.3d 503, 517 (7th Cir. 2009)
(An ALJ’s credibility finding need not be “flawless” in order to survive scrutiny under the
“patently wrong” standard.). The Court concludes mischaracterization alone is not enough to
disturb the ALJ’s credibility finding in light of the other reasons given.
C. Activities of Daily Living
The Court also agrees to an extent that the ALJ’s discussion of Ms. Bryant’s ADLs does
little to support her overall conclusion. [Filing No. 15 at 17.] The distinction the ALJ draws
between certain ADLs that Ms. Bryant reported she could not perform and others that she could
perform is not terribly persuasive that she is as functional as someone capable of working full-time
with no greater restrictions than the ALJ found in her RFC. [See Filing No. 13-2 at 21-22.]
However, the ALJ did acknowledge that Ms. Bryant’s reported complaints appear to contradict
her conclusion and did not rest solely on the limited ADLs that Ms. Bryant reported capable of
performing, but also noted that she found the complaints to “significantly exceed the relatively
modest medical findings and treatment noted above.” [Filing No. 13-2 at 22.] The Court will not
reweigh the evidence.
Ms. Bryant also argues that the limited reported ADLs are supported by consultative
examination findings. [Filing No. 15 at 17.] However, the Court agrees with the Commissioner
that Ms. Bryant is not qualified to make that medical determination, the consultative examiner did
not opine any functional restrictions themselves, no acceptable medical source opined a greater
level of restriction than the ALJ’s RFC finding, and the ALJ’s finding is significantly bolstered by
the uncontradicted medical opinions of the reviewing consultants who considered the results of the
consultative exam in formulating their opinions as to Ms. Bryant’s exertional limitations. [Filing
No. 22 at 9 (See Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)).] Moreover, the ALJ
referenced the consultative clinical examination findings fairly and accurately (beyond the
misstated impression of Ms. Bryant’s level of pain noted above). [Filing No. 13-2 at 19.] The
Court cannot find that the ALJ’s exertional findings were without support.
D. Work History
Lastly, the Court considers Ms. Bryant’s claim that the ALJ committed reversible error
simply because the ALJ did not mention Ms. Clark’s work history. Circuit precedent undermines
the claim. Stark v. Colvin, 813 F.3d 684, 689 (7th Cir. 2016). In Stark, the Court noted:
An ALJ is not statutorily required to consider a claimant’s work history, but “a
‘claimant with a good work record is entitled to substantial credibility when
claiming an inability to work because of a disability.’” Hill v. Colvin, 807 F.3d
862, 868 (7th Cir. 2015) (quoting Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir.
1983)). In assessing Stark’s credibility about the disabling effects of her pain, the
ALJ should have acknowledged Stark’s efforts to continue work while
experiencing significant pain and undergoing numerous surgeries and other
treatments to relieve it. See Pierce, 739 F.3d at 1051 (criticizing ALJ for failing to
consider claimant’s “dogged efforts” to work in deciding claimant's credibility);
Flores v. Massanari, 19 F. App'x 393, 404 (7th Cir. 2001) (criticizing ALJ for
failing to acknowledge claimant’s solid work history of 13 years).
Id. at 689. Ms. Clark does not present any evidence that her case is similar to the one in Stark and
the related cases above where the Court was impressed with a long work history after the onset of
her impairments and a resilience to remain working through aggressive treatment attempts.
Furthermore, the Court reads the decisions above to find that the absence of a discussion regarding
the claimant’s work history is one factor in assessing the ALJ’s credibility analysis. One of the
Court’s later decisions makes that clear:
The ALJ did not commit reversible error by failing to explicitly discuss Summers’s
work history when evaluating her credibility. See Stark v. Colvin, 813 F.3d 684,
689 (7th Cir. 2016) (“An ALJ is not statutorily required to consider a claimant’s
work history[.]”) Although a consistent work history weighs in favor of a positive
credibility finding, it is still just “one factor among many, and it is not dispositive.”
Loveless v. Colvin, 810 F.3d 502, 508 (7th Cir. 2016).
Summers v. Berryhill, 864 F.3d 523, 528-29 (7th Cir. 2017). The Court does not find reversible
error here simply because the ALJ did not mention Ms. Clark’s work history.
“The standard for disability claims under the Social Security Act is stringent.” WilliamsOverstreet v. Astrue, 364 F. App’x 271, 274 (7th Cir. 2010). “Even claimants with substantial
impairments are not necessarily entitled to benefits, which are paid for by taxes, including taxes
paid by those who work despite serious physical or mental impairments and for whom working is
difficult and painful.” Id. at 274. Taken together, the Court can find no legal basis presented by
Ms. Clark to reverse the ALJ’s decision that she was not disabled during the relevant time period.
Therefore, the decision below is AFFIRMED. Final judgment will issue accordingly.
Charles D. Hankey
Jill Z. Julian
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
Kathryn E. Olivier
UNITED STATES ATTORNEY'S OFFICE
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