BARNGROVER v. BERRYHILL

Filing 28

ENTRY ON JUDICIAL REVIEW - Plaintiff Kelly Barngrover requests judicial review of the final decision of Defendant Nancy A. Berryhill, Deputy Commissioner for Operations of the Social Security Administration ("Commissioner"), denying her application for Supplemental Security Income ("SSI"). The Court rules as discussed herein. For the reasons stated in this Entry, the decision of the Commissioner is REVERSED and this case is REMANDED to the Commissioner for further proceedings consistent with the Court's Entry. (SEE ENTRY). Signed by Judge William T. Lawrence on 5/25/2018.(APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KELLY S. BARNGROVER,
Plaintiff,
v.
NANCY A. BERRYHILL, Deputy
Commissioner for Operations, Social Security
Administration,1
Defendant.

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Cause No. 1:17-cv-1312-WTL-DLP

ENTRY ON JUDICIAL REVIEW
Plaintiff Kelly Barngrover requests judicial review of the final decision of Defendant
Nancy A. Berryhill, Deputy Commissioner for Operations of the Social Security Administration
(“Commissioner”), denying her application for Supplemental Security Income (“SSI”). The
Court rules as follows.
I. PROCEDURAL HISTORY
Barngrover protectively filed her application on February 11, 2014, alleging onset of
disability on August 21, 2010.2 The Social Security Administration (“SSA”) initially denied
Barngrover’s application on May 9, 2014. After Barngrover timely requested reconsideration,

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It has come to the Court's attention that on March 6, 2018, the General Counsel of the
U.S. Government Accountability Office (GAO) notified the President that effective November
17, 2017, Nancy A. Berryhill could no longer serve as the “Acting Commissioner” of the Social
Security Administration pursuant to the Federal Vacancies Reform Act of 1998, Pub. L. No. 105277, Div. C, Title I, 112 Stat. 2681-611 (Oct. 21, 1998), as amended, 5 U.S.C. §§ 3345-3349d.
GAO, https://www.gao.gov/products/D18772#mt=e-report (last visited Apr. 27, 2018). The
caption has been updated to reflect Ms. Berryhill’s current official title.
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In an SSI claim, the application date is the beginning of the relevant period at issue, as
benefits are not retroactive. See Social Security Ruling (“SSR”) 83-20.

SSA again denied her claim on August 18, 2014. Thereafter, Barngrover requested a hearing
before an Administrative Law Judge (“ALJ”). An ALJ held a hearing on February 9, 2016, at
which Barngrover and a vocational expert (“VE”) testified. The ALJ issued her decision
denying Barngrover’s application on March 24, 2016. After the Appeals Council denied
Barngrover’s request for review on February 27, 2017, Barngrover filed this action seeking
judicial review on April 26, 2017.
II. EVIDENCE OF RECORD
The relevant evidence of record is amply set forth in the parties’ briefs and need not be
repeated here. Specific facts relevant to the Court’s disposition of this case are discussed below.
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. § 416.920(b).
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. §
416.920(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
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Listing of Impairments, 20 C.F.R. pt. 404, subpt. P, App. 1, and whether the impairment meets
the twelve-month durational requirement; if so, the claimant is deemed disabled. 20 C.F.R. §
416.920(d). At step four, if the claimant is able to perform her past relevant work, she is not
disabled. 20 C.F.R. § 416.920(f). At step five, if the claimant can perform any other work in the
national economy, she is not disabled. 20 C.F.R. § 416.920(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 her analysis of the evidence in his decision; while she “is not required to
address every piece of evidence or testimony presented,” she must “provide an accurate and
logical bridge between the evidence and her 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 omitted).
IV. THE ALJ’S DECISION
The ALJ found at step one that Barngrover had not engaged in substantial gainful activity
since the application date. At step two, the ALJ determined that Barngrover had the severe
impairments of “residuals of motor vehicle accident – status post left distal humeral shaft
fracture, status post comminuted closed right humeral shaft fracture, and status post grade III
open right forearm fracture (20 CFR 416.920(c)).” Record at 11. The ALJ found at step three
that these impairments did not, individually or in combination, meet or equal the severity of one

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of the listed impairments. The ALJ’s residual functional capacity (“RFC”) determination was as
follows:
After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform light work as defined in 20 CFR
416.967(b) except that the claimant can frequently finger with right (dominant)
hand. The claimant can frequently handle objects and reach overhead and in all
directions with the right arm. The claimant can occasionally climb ramps and
stairs, balance, stoop, kneel, crouch, crawl, and climb ladders, ropes or scaffolds.
The claimant can have occasional exposure to extreme cold, extreme heat,
wetness, humidity, vibration, fumes, odors, dusts, and gases. The claimant can
occasionally operate a motor vehicle and work around unprotected heights and
moving mechanical parts.
R. at 12 (footnote omitted). The ALJ concluded at step four that Barngrover was capable of
performing her past relevant work as a waitress, tagger, and telephone solicitor. Although the
step four finding would end the sequential evaluation and result in a conclusion that Barngrover
was not disabled, the ALJ proceeded in the alternative to step five. At step five, the ALJ found,
based on VE testimony considering Barngrover’s age, education, work experience, and RFC, that
there were jobs that existed in significant numbers in the national economy that she could
perform. Accordingly, the ALJ concluded that Barngrover was not disabled.
V. DISCUSSION
Barngrover argues that the ALJ erred in two respects. The Court will address the second
argument first.
A. Credibility Determination
Barngrover argues that the ALJ failed to adequately explain her conclusion that
Barngrover was not entirely credible, without any further discussion or application of the factors
contained in SSR 96-7p.3 Barngrover contends that the ALJ’s credibility analysis is meaningless

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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, 2016 WL 1119029 (Mar. 28,
2016). Under SSR 16-3p, an ALJ now assesses a claimant’s subjective symptoms rather than
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boilerplate. Barngrover further argues that the ALJ failed to provide an accurate and logical
bridge between the evidence and her conclusion that Barngrover’s complaints that she would be
unable to sustain work were not credible. Barngrover notes that the effect of symptoms on her
inability to work (her subjective complaints) cannot be disregarded solely because they are not
substantiated by objective evidence.
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). Reviewing courts examine
whether a credibility determination was reasoned and supported; only when an ALJ’s decision
“lacks any explanation or support . . . will [the Court] declare it to be ‘patently wrong.’” Elder v.
Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008). SSR 96-7p provides guidance as to how the ALJ
is to assess a claimant’s credibility:
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 statements:
1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of the individual’s pain
or other symptoms;
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

assessing her “credibility.” Id. However, SSR 16-3p is not retroactive; therefore, the “credibility
determination” in the ALJ's March 24, 2016 decision is governed by the standard of SSR 96-7p.
SSR 16-3p, 2017 WL 5180304 at *1 (Oct. 25, 2017).
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7. Any other factors concerning the individual’s functional limitations and
restrictions due to pain or other symptoms.
SSR 96-7p (S.S.A.), 1996 WL 374186 (July 2, 1996).
Barngrover is correct that the ALJ’s credibility analysis begins with language that
Barngrover is “not entirely credible,” R. at 13, which is nearly identical to language found by the
Seventh Circuit to be meaningless boilerplate, Parker v. Astrue, 597 F.3d 920, 922 (7th Cir.
2010). However, the Court finds the point somewhat immaterial here, where the ALJ followed
the boilerplate up with an explanation of the evidence she found to support the finding.
Moreover, we do not confine our review of the ALJ’s credibility analysis solely to the
explanation in that portion of the decision, but read the decision as a whole. The ALJ is not
required to address every piece of evidence in each section of her decision nor repeat the factual
analysis throughout each section. Rice v. Barnhart, 384 F.3d 363, 370 n.5 (7th Cir. 2004) (“it is
proper to read the ALJ’s decision as a whole, and . . . it would be a needless formality to have the
ALJ repeat substantially similar factual analyses”).
The ALJ’s decision, read as a whole, at least alludes to the factors the ALJ must analyze
when evaluating the credibility of Barngrover’s subjective complaints. The ALJ summarized
Barngrover’s testimony, detailing her subjective complaints. R. at 13. Contrary to Barngrover’s
assertion, the ALJ did not imply that Barngrover testified she could not handle even small
objects, such as a newspaper, magazine, or telephone, but accurately described that Barngrover
expressed an inability to do so for “extended periods.” R. at 13. The ALJ addressed
Barngrover’s use of daily ibuprofen for pain and her contention that symptoms persisted despite
its use. R. at 13. The ALJ mentioned in terms of daily activities that Barngrover testified “she
shops for groceries but has problems lifting heavy packages.” R. at 13. The ALJ discussed that
there was no evidence of adverse medication side effects and that Barngrover used other
measures, including a history of surgical intervention, prior to the period at issue and then
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physical therapy and application of a heating pad during the relevant period. R. 13. The ALJ
explained her conclusion that the degree of limitation alleged was not supported by the record,
noting the lack of functional limitations found during the consultative examination. R. at 13. In
a previous portion of the decision, the ALJ discussed the manipulative and environmental
restrictions she assessed based on Barngrover’s allegations that extreme weather and repetitive
manipulative maneuvers aggravate her pain. R. at 13. Accordingly, the Court does not find error
with the ALJ’s failure to consider the factors referenced in SSR 96-7p.
However, the Court does not find the ALJ’s credibility analysis to be free of error either.
Barngrover’s better argument is that the ALJ does not adequately articulate her credibility
finding. In assessing the claimant’s credibility, an ALJ is required to “build an accurate and
logical bridge from the evidence to [the] conclusion”. Clifford v. Apfel, 227 F.3d 863, 872 (7th
Cir. 2000). Despite reference to evidence that has some connection to the regulatory factors, the
ALJ’s decision does not adequately demonstrate for the Court how she concluded that
Barngrover’s specific complaints that she cannot sustain even very modest manipulative
functions were contraindicated by the evidence that was cited. Barngrover consistently testified
not that she was unable to perform specific manipulative functions, but that she could not sustain
them for even an hour at a time. R. at 28, 32. Some of the evidence the ALJ cites, that over the
counter medication did not control Barngrover’s pain and that she has further attempted physical
therapy and other measures, for example applying heat, appears to be more supportive of
Barngrover’s testimony than in contradiction.
Even if the Court were to assume that Barngrover meant that her ability to do grocery
shopping was limited solely by an inability to lift heavy items, implying she was not restricted
from performing the manipulative functions necessary to accomplish the activity, it does not
necessarily follow that she could sustain those manipulative functions throughout the day. Fairly
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restrictive daily activities do not necessarily undermine or contradict a claim of disabling pain.
Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001) (citing Clifford, 227 F.3d at 872). “The
ALJ should have explained the ‘inconsistencies’ between Zurawski's activities of daily living
(that were punctured with rest), his complaints of pain, and the medical evidence.” Id. (citing
Clifford, 227 F.3d at 870–72); see Villano v. Astrue, 556 F.3d 558, 562-63 (7th Cir. 2009). “But
there is a deeper problem with the administrative law judge’s discernment of contradiction. [The
ALJ] failed to consider the difference between a person’s being able to engage in sporadic
physical activities and her being able to work eight hours a day five consecutive days of the
week.” Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004) (citing Clifford, 227 F.3d at
872 (further citations omitted)).
Relatedly, the ALJ appears to rely, to a significant degree, on the fact that Barngrover
was able to perform specific manipulative functions without impairment at the consultative
examination. The brief examination does not contradict Barngrover’s specific complaints that
she cannot sustain those functions for an hour or more. Had the examination tested Barngrover’s
functional ability over a considerable period of time, as is often done in functional capacity
examinations, the evidence may have been more probative in assessing Barngrover’s complaints.
Moreover, the examination did reveal significantly decreased range of motion and muscle
strength, which provides further objective support of Barngrover’s specific complaints.
“And so ‘once the claimant produces medical evidence of an underlying impairment, the
[Deputy] Commissioner may not discredit the claimant’s testimony as to subjective symptoms
merely because they are unsupported by objective evidence.’” Carradine, 360 F.3d at 753
(quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996)). “A claimant’s subjective testimony
supported by medical evidence that satisfies the pain standard is itself sufficient to support a
finding of disability. Indeed, in certain situations, pain alone can be disabling, even when its
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existence is unsupported by objective evidence.” Id. (quoting Foote v. Chater, 67 F.3d 1553,
1561 (11th Cir. 1995) (per curiam) (citations omitted)). When there is a severe impairment that
could provide the basis for complaints of pain, as here, it is not enough for the ALJ to
demonstrate that she has considered those complaints using the applicable factors, she must
demonstrate with substantial evidence that those complaints are actually inconsistent or
incredible based on the record. See Indoranto v. Barnhart, 374 F.3d 470, 474-75 (7th Cir. 2004).
The Court finds that remand is required for further consideration of Barngrover’s credibility with
regard to her allegation of disabling pain.
B. RFC and Function-by-Function Assessment
Barngrover argues that the ALJ failed to find any real limitations with the use of her
dominant right upper extremity, despite evidence of significantly reduced range of motion and
strength. Barngrover further argues that the ALJ never explained the rationale behind her RFC
finding, beyond her conclusion that Barngrover could perform light work, and that the ALJ did
not comply with SSR 96-8p by first doing a function-by-function assessment.
Having found that the ALJ’s credibility analysis necessitates remand for further
consideration, the Court declines to fully address Barngrover’s RFC argument. Contrary to
Barngrover’s assertions, the decision does demonstrate application of a function-by-function
assessment. However, given the Court’s determination that the ALJ must reevaluate his
credibility finding as it relates to Barngrover’s testimony regarding the pain she experiences and
the effects thereof, on remand the ALJ also shall reevaluate his RFC analysis, and specifically
the effects of Barngrover’s pain on her RFC.

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VI. CONCLUSION
For the reasons set forth above, the decision of the Commissioner is REVERSED and
this case is REMANDED to the Commissioner for further proceedings consistent with the
Court’s Entry.
SO ORDERED: 5/25/18
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic communication.

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