WILLIAMS v. ASTURE et al

Filing 24

ENTRY ON JUDICIAL REVIEW - The decision of the Commissioner is REVERSED and this cause is REMANDED to the Commissioner for further proceedings consistent with this Entry. (See Entry.) Signed by Judge William T. Lawrence on 3/13/2013.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

LAURA L. WILLIAMS,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Defendant.

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Cause No. 2:12-cv-26-WTL-WGH

ENTRY ON JUDICIAL REVIEW
Plaintiff Laura L. Williams requests judicial review of the final decision of the Defendant
Michael J. Astrue, Commissioner of the Social Security Administration (the “Commissioner”),
denying her application for Disability Insurance Benefits (“DIB”) and Supplemental Social
Security Income (“SSI”) under Titles II and XVI of the Social Security Act (the “Act”). The
Court now rules as follows.
I.

PROCEDURAL HISTORY

On January 3, 2008, Williams filed an application for DIB and SSI alleging disability
beginning August 7, 2007. Williams’ application was initially denied on July 7, 2008, and again
upon reconsideration on September 30, 2008. Thereafter, Williams requested a hearing before an
Administrative Law Judge (“ALJ”). The hearing was held on June 14, 2010, before ALJ Gregory
Hamel in Indianapolis, Indiana. During the hearing, Gail Franklin testified as a vocational expert.
On August 25, 2010, the ALJ issued a decision denying Williams’ application for benefits. The
Appeals Council upheld the ALJ’s decision and denied Williams’ request for review on
December 1, 2011. This action for judicial review ensued.

II.

EVIDENCE OF RECORD

The relevant medical evidence of record follows.
A. Acute Medical Care
Williams began treating with Thomas H. Black, M.D., and Brian Black, D.O., of Acute
Medical Care in July 2007, shortly after moving to Indiana from Texas. She visited the medical
center complaining of back pain and anxiety and seeking prescriptions for Xanax and Vicodin as
she had been on those medications for several years. Williams followed up with Dr. Thomas
Black on August 2, 2007, after falling at work. She complained of pain in her hands and that her
arms and hands went “to sleep” constantly throughout the day. Thereafter, Williams continued to
treat with Dr. Thomas Black and Dr. Brian Black and regularly complained of back pain and
pain radiating down one or both legs.
On September 5, 2007, after a test revealed Williams had elevated liver enzymes, Dr.
Brian Black performed additional testing and diagnosed Williams with Hepatitis C. She also
began taking Peri-Colace to help with intestinal issues.
During follow-up visits, Dr. Thomas Black and Dr. Brian Black continued to prescribe
Peri-Colace, Miralax, Xanax, Vicodin, Ultram, and miscellaneous vitamins to treat Williams’
ailments. During the follow-up visits, the doctors noted on several occasions that Williams’
anxiety and back pain had improved with treatment, but that the problems were not fully
resolved. On October 5, 2007, however, Williams complained to Dr. Brian Black that she felt she
was unable to work due to her back pain and Hepatitis C, as well as the resulting fatigue.
Thereafter, on March 10, 2008, Williams complained that the pain in her legs had worsened. At a
follow-up visit on May 29, 2008, however, Dr. Thomas Black noted that the Vicodin and Xanax
were “helping” with her anxiety and pain. These same sentiments were noted by Dr. Thomas

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Black on April 27, 2009 and again on June 1, 2009. As of July 28, 2009, Dr. Thomas Black
noted that Williams should “use caution in lifting.” Tr. at 415.
B. Psychiatric Consultative Exam – Dr. Patrick Brophy
On June 10, 2008, Williams underwent a psychiatric consultative examination with
Patrick D. Brophy, Ph.D. Dr. Brophy noted in his report that Williams had been arrested for
battery on three occasions and that she was expelled from school in the seventh grade. According
to Dr. Brophy, Williams attempted to justify her behavior by saying “I don’t like being talked
down to.” Tr. at 341. Dr. Brophy also reported that Williams is a “very opinionated woman who
is indeed quite blunt.” Tr. at 343. Dr. Brophy’s notes also indicate that Williams abused
methamphetamine for ten years, but that she had not used the drug for over four years. With
regard to her activities of daily living, Dr. Brophy opined:
[Williams] is able to bathe and dress herself. She does some cooking, but told me
that her children help. She said that she just cannot shop for groceries because she
becomes so upset. Her husband has been doing the grocery shopping. She
continues to drive a car. She does no walking outside the home because of back
pain. In the way of hobbies, she said that she enjoys reading mystery novels. She
also watches television.
[Williams’] daughter helps with her housework and does the laundry. [Williams]
said she cannot do the laundry because of back pain.
Tr. at 341.
Dr. Brophy diagnosed Williams with an impulse control disorder (inability to control her
anger) and a borderline personality disorder. He also assigned her a Global Assessment of
Functioning (“GAF”) score of 50.
C. Physical Consultative Exam – Dr. William Kelley
On June 17, 2008, Williams underwent a physical consultative examination with William
Kelley, M.D. Dr. Kelley noted that Williams “ambulates without difficulty. She climbs onto and

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off the exam table without difficulty. . . . Claimant stated she was unable to lie down on the exam
table. Claimant is stable at station and appears comfortable in the seated and supine positions.”
Tr. at 325. Dr. Kelley further noted that Williams “stated she was not able to stand on her toes
and heels or squat. She was able to tandem walk. [She was] able to perform heel to shin.” Tr. at
328. Based on his physical assessment, Dr. Williams concluded that Williams “may be able to do
some type of daily sedentary activities that do not require lifting, stooping, bending, or
climbing.” Tr. at 328.
D. Physical RFC Assessment – Dr. R. Fife
On June 27, 2008, R. Fife, M.D., reviewed Williams’ medical records and completed a
physical RFC assessment. Dr. Fife opined that Williams was able to lift and carry 20 pounds
occasionally and 10 pounds frequently; stand and/or walk about 6 hours in an 8-hour workday;
sit about 6 hours in an 8-hour workday; and occasionally climb ramps or stairs, balance, stoop,
kneel, crouch, and crawl. Dr. Fife believed that Williams’ complaints were not as severe as she
alleged. J. Sands, M.D., affirmed Dr. Fife’s assessment on September 29, 2008.
E. Mental RFC Assessment – Dr. Donna Unversaw
On July 7, 2008, Donna Unversaw, Ph.D., also reviewed Williams’ medical records and
completed a mental RFC assessment and a psychiatric review. Dr. Unversaw diagnosed Williams
with a borderline personality disorder and an impulse control disorder, and concluded that
Williams had mild limitations in activities of daily living and maintaining concentration,
persistence, or pace. Dr. Unversaw also concluded that Williams had moderate limitations in the
following:
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The ability to understand and remember detailed instructions;

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The ability to carry out detailed instructions;

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The ability to complete a normal work-day and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods;

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The ability to interact appropriately with the general public;

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The ability to accept instructions and respond appropriately to criticism from supervisors;

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The ability to get along with coworkers or peers without distracting them or exhibiting
behavioral extremes; and

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Maintaining social functioning.

Tr. at 344-45; 358. Based on the foregoing, Dr. Unversaw opined that Williams “would work
best doing work on her own with an understanding and considerate supervisor,” and that
Williams “is able to perform routine tasks in a manner so as to attend/[concentrate] and complete
at a reasonable pace and with persistence.” Tr. at 346. Joseph A. Pressner, Ph.D., affirmed Dr.
Unversaw’s assessment on September 30, 2008.
F. Hendricks Neurology – Dr. Jesse Li
After the consultative exams and RFC assessments were peformed, on November 4,
2008, Williams consulted with neurologist Jesse Li, M.D., regarding her lower back and leg pain
and numbness in her feet. Williams complained that the Vicodin no longer eased her pain. Dr. Li
noted that Williams had difficulty standing on the tip of her toes, positive bilateral straight leg
raises, and tenderness in her spine between L4 and S1, right paraspinal muscles, and right gluteus
muscles. On November 10, 2008, an MRI revealed a bulging disc with an annular tear at L5/S1.
During a follow-up visit with Dr. Li on November 12, 2008, Dr. Li again noted that Williams
suffered from the same limitations noted on November 4, 2008. Dr. Li continued the prescription
for Vicodin and diagnosed Williams with lower back pain and lumber radiculopathy.

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G. Williams’ Testimony
At her hearing before the ALJ on June 14, 2010, Williams testified that she spends most
of her time at home. She experiences “a good deal of pain” when she sits or stands more than 2030 minutes at a time. Williams is unable to complete most household chores and errands and
usually receives help from her husband and teenage daughters.
Williams believes she is unable to work due to her back pain, anxiety, and temper. The
back pain causes an “immense . . . terrible . . . horrible . . . pain” at the top of her buttocks and
down her legs. Tr. at 44. Additionally, Williams’ anxiety and temper cause her to experience
racing thoughts and feel nervous, self-conscious, and upset. As a result, she is generally unable
to get along with other people.
III.

APPLICABLE STANDARD

Disability is defined as “the inability to engage in any substantial gainful activity by
reason of a medically determinable mental or physical impairment which can be expected to
result in death, or which has lasted or can be expected to last for a continuous period of at least
twelve months.” 42 U.S.C. § 423(d) (1)(A). In order to be found disabled, a claimant must
demonstrate that her physical or mental limitations prevent her from doing not only her previous
work, but any other kind of gainful employment that exists in the national economy, considering
her age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).
In determining whether a claimant is disabled, the Commissioner employs a five-step
sequential analysis. At step one, if the claimant is engaged in substantial gainful activity, she is
not disabled, despite her medical condition and other factors. 20 C.F.R. § 404.1520(b).1 At step

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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.
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two, if the claimant does not have a “severe” impairment (i.e., one that significantly limits his
ability to perform basic work activities), she is not disabled. 20 C.F.R. § 404.1520(c). At step
three, the Commissioner determines whether the claimant’s impairment or combination of
impairments meets or medically equals any impairment that appears in the Listing of
Impairments, 20 C.F.R. pt. 404, subpt. P, App. 1, and whether the impairment meets the twelvemonth duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. § 404.1520(d). At
step four, if the claimant is able to perform her past relevant work, she is not disabled. 20 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).
On review, the ALJ’s findings of fact are conclusive and must be upheld by the 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 the court may not
reweigh the evidence or substitute its judgment for that of the ALJ. Overman v. Astrue, 546 F.3d
456, 462 (7th Cir. 2008). The ALJ is required to articulate only a minimal, but legitimate,
justification for his acceptance or rejection of specific evidence of disability. Scheck v.
Barnhart, 357 F.3d 697, 700 (7th Cir. 2004). In order to be affirmed, the ALJ must articulate his
analysis of the evidence in his decision; while he “is not required to address every piece of
evidence or testimony,” he must “provide some glimpse into [his] reasoning . . . [and] build an
accurate and logical bridge from the evidence to [his] conclusion.” Id.
IV.

THE ALJ’S DECISION

At step one, the ALJ found that Williams had not engaged in substantial gainful activity
since her alleged onset date of August 7, 2007. At step two, the ALJ concluded that Williams

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suffers from the following severe impairments: impulse control disorder; borderline personality
disorder; anxiety; obesity; and lumbar radiculopathy. At step three, the ALJ determined that
Williams’ severe impairments did not meet or medically equal a listed impairment. At step four,
the ALJ concluded that Williams had the residual functional capacity (“RFC”) to perform
sedentary work2 with the following limitations: “[T]he claimant is able to occasionally climb,
balance, stoop, kneel, crouch, or crawl. The claimant cannot climb ropes, ladders, or scaffolds.
Finally, the claimant is restricted to routine, repetitive tasks, which do not require public contact
or more than occasional contact with coworkers.” Tr. at 14. Williams, however, could not
perform any past relevant work. Given the RFC finding, and taking into account Williams’ age,
education, and work experience, the ALJ determined at step five that Williams could perform
jobs existing in significant numbers in the national economy, those being a document preparer, a
pari-mutuel ticket checker, and a final assembler. Accordingly, the ALJ concluded that Williams
was not disabled as defined by the Act from August 7, 2007, through the date of her decision (on
August 25, 2010).
V.

DISCUSSION

Williams advances numerous objections to the ALJ’s decision; each is addressed below.
A. RFC Determination
1. Dr. Kelley
Williams argues that the ALJ “improperly dismissed” Dr. Kelley’s opinion that she is
limited to “sedentary activities that do not require lifting, stooping, bending, or climbing,” Tr. at
328.

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“Sedentary work is generally performed while sitting and requires maximum lifting of
10 pounds.” Tr. at 14.
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In determining Williams’ RFC, the ALJ concluded that Williams was not “as limited as
Dr. Kelley opine[d].” Tr. at 17. Rather, the ALJ concluded that Williams was capable of
sedentary work and occasionally climbing, balancing, stooping, kneeling, crouching, or crawling.
The ALJ reasoned that “bending and climbing are not required by sedentary work,” and that
Williams’ “daily activities of driving, cooking, and washing the dishes show that she can
perform occasional stooping and lifting.” 3 Tr. at 17.
The Court does not believe the weight given to Dr. Kelley’s opinion was improper. Other
than her own subjective complaints, there is no evidence in the record to support her alleged
postural limitations. Accordingly, it was not error for the ALJ to discount the opinion of the
physical consultative examiner, Dr. Kelley.
2. Dr. Brophy
Williams also argues that the ALJ “improperly dismissed” Dr. Brophy’s findings that
Williams suffers from an impulse control disorder and a borderline personality disorder, and has
a GAF score of 50. The Court agrees that the ALJ’s weight determination in relation to Dr.
Brophy requires further explanation.
In his decision, the ALJ stated that he “did not fully accept [Dr. Brophy’s]
determinations,” because “[t]he claimant’s husband indicated that her activities of daily living
and general functioning are mostly restricted by physical, not mental limitations. Further, . . . the
record is full of evidence showing that the claimant’s mental medications have been effective.”
Tr. at 17.

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Williams also argues that this finding misconstrues the evidence regarding her activities
of daily living. The relevant evidence, however, indicates that Williams was able to drive short
distances, do some cooking, and wash the dishes for 5-10 minutes at a time.
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Although the ALJ stated that he “did not fully accept” Dr. Brophy’s determinations, the
ALJ did not state what role, if any, Dr. Brophy’s opinions played in his RFC determination. In
other words, is Williams able to work despite Dr. Brophy’s findings, or do Dr. Brophy’s findings
prohibit Williams from working (such that the ALJ discredited Dr. Brophy’s findings entirely)?
Because the Court is unable to determine the weight given to Dr. Brophy, it is unable to
determine whether the weight given was appropriate, and this matter must be remanded to the
ALJ for further clarification.
3. Dr. Fife and Dr. Unversaw
Lastly, Williams argues that the RFC was improper because the ALJ failed “to explain
why any weight was given to the non-examining State-agency reviewers’ physical and mental
RFC assessments,” Williams’ Br. at 13, and that the ALJ gave too much weight to those doctors’
opinions. Again, the Court agrees that the ALJ’s weight discussion is lacking.
Here, the ALJ stated the following regarding the non-examining doctors:
Although these physicians were non-examining and generally not entitled to as
much weight as those of examining or treating physicians, these opinions are
entitled to some weight, particularly in a case like this in which there exist a
number of other reasons to reach similar conclusions. In particular, the
undersigned finds that the experts are familiar with the rules, laws, and
regulations governing the area of disability.
Tr. at 17. Although the ALJ may very well have had good reasons (grounded in the medical
records) for giving the non-examining doctors more weight than the examining doctors, the
Court is unable to determine from the foregoing on what the ALJ based his determination, and
thus, whether that determination was appropriate. On remand, the ALJ should articulate why he
afforded the non-examining doctors additional weight. See Clifford v. Apfel, 227 F.3d 863 (7th
Cir. 2000) (remanding to Commissioner where ALJ did not adequately explain why he granted
greater weight to non-treating physician).
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B. Credibility Determination
Williams next argues that the “ALJ rendered an improper credibility determination by
relying on unreasoned grounds.” Williams’ Br. at 14. The Court agrees that the credibility
determination requires additional explanation.
With regard to Williams’ subjective complaints, the ALJ must make a credibility
determination using factors outlined in S.S.R 96-7p. “In determining credibility an ALJ must
consider several factors, including the claimant’s daily activities, her level of pain or symptoms,
aggravating factors, medication, treatment, and limitations, see 20 C.F.R. § 404.1529(c); S.S.R.
96–7p, and justify the finding with specific reasons.” Villano v. Astrue, 556 F.3d 558, 562 (7th
Cir. 2009). The ALJ must also consider “the type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate pain or other symptoms.” S.S.R. 96-7p.
District courts “afford a credibility finding ‘considerable deference,’ and overturn [a finding]
only if ‘patently wrong.’” Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006) (quoting
Carradine v. Barnhart, 36 F.3d 751, 758 (7th Cir. 2004)). However, “the ALJ may not discredit
a claimant’s testimony about her pain and limitations solely because there is no objective
medical evidence supporting it.” Villano, 556 F.3d at 562 (citations omitted).
The ALJ in this case determined that Williams’ statements concerning the intensity,
persistence and limiting effects of her symptoms were not credible to the extent they were
inconsistent with the determined RFC.4 The ALJ’s credibility determination, however, did not

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As is so often the case, the ALJ’s credibility discussion begins with the finding that the
claimants statements concerning the intensity, persistence, and limiting effects of his symptoms
were not credible to the extent they are inconsistent with the ALJ’s RFC assessment. The
Seventh Circuit recently criticized this language as meaningless boilerplate seen frequently in
decisions. It criticized this template as unhelpful and explained that it backwardly implies that
the ability to work is determined first and is then used to determine the claimants credibility.
Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012) (quoting Bjornson v. Astrue, 671 F.3d 640,
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mention or account for the side effects of the various medications that Williams takes. Williams
testified that her medications cause fatigue and that sometimes the Xanax “knocks [her] out.” Tr.
at 48; 50. On remand, the ALJ should consider what role, if any, the side effects of Williams’
medications play in his credibility determination, or explain why the alleged side effects should
not be credited.5
C. Hypothetical and Vocational Expert’s Response
Finally, Williams argues that the hypothetical did not account for all of Williams’
limitations, and that the jobs identified by the vocational expert conflict with the ALJ’s RFC.
The Court agrees that the discussion surrounding the hypothetical requires additional
clarification.
“When an ALJ poses a hypothetical question to a vocational expert, the question must
include all limitations supported by medical evidence in the record. . . . More specifically, the
question must account for documented limitations of ‘concentration, persistence, or pace.’”
Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir. 2009) (citations omitted). Here, Williams argues,
in part, that the ALJ failed to include her limitations in concentration, persistence, or pace. It is
true that the state reviewing physician, Dr. Unversaw, opined that Williams had mild limitations
in maintaining concentration, persistence, or pace. The Court is unable to determine, however,

645 (7th Cir. 2012) and citing Parker v. Astrue, 597 F.3d 920, 921-22 (7th Cir. 2010)).
Credibility findings must have support in the record, and such hackneyed language seen
universally in decisions adds nothing. Shauger, 675 F.3d at 694 (citing Punzio v. Astrue, 630
F.3d 704, 709 (7th Cir. 2011) and Parker, 597 F.3d at 921-22).
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Williams also argues that the ALJ misconstrued the evidence regarding her daily
activities of living and dismissed her “credible testimony” regarding her mental impairments.
The Court does not agree. The evidence in the record indicates that Williams was able to address
her personal needs, water her garden, do some cooking, and wash the dishes for 5-10 minutes at
a time. Further, the ALJ specifically determined that Williams’ subjective complaints concerning
her anxiety and constant racing thoughts were not “supported by the evidence of record.” Tr. at
16.
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whether the ALJ agreed with this finding. In this regard, the ALJ granted Dr. Unversaw “some
weight” and adopted her opinion regarding Williams’ “non-exertional limitations pertaining to
routine tasks and minimal contact,” Tr. at 17, but did not determine whether Williams also
suffers from mild limitations in maintaining concentration, persistence, or pace. On remand, the
ALJ should make clear his finding on whether Williams does, in fact, have mild limitations in
maintaining concentration, persistence, or pace. If the ALJ agrees with Dr. Unversaw’s finding,
the ALJ should revise the hypothetical to account for the limitation.
Furthermore, as noted above, on remand, the ALJ has been instructed to further develop
his discussion of the weight given to Dr. Brophy and the non-examining doctors. To the extent
his original RFC is affected by his assessment, the ALJ should revise the hypothetical
accordingly.
Notwithstanding the foregoing, Williams also argues that the hypothetical was improper
because the ALJ’s instruction that the hypothetical person be allowed to “get up for a few
minutes” every 30 minutes is not addressed by the Dictionary of Occupational Titles (“DOT”).
Tr. at 57. Thus, according to Williams, it was “harmful error” for the ALJ to include the
limitation in his hypothetical. Williams’ Br. at 17. Sit/stand limitations, however, are permissible
and do not automatically rule out all employment. See, e.g., Ketelboeter v. Astrue, 550 F.3d 620
(7th Cir. 2008) (sit/stand option was appropriate).
Williams further argues that the jobs identified by the vocational expert (i.e., a parimutuel ticket checker, a document preparer, and a final assembler) conflict with the ALJ’s RFC
determination. The Court is unable to find that the jobs identified by the vocational expert –
based on the ALJ’s original RFC assessment – were improper. As noted above, however, the
ALJ’s RFC finding requires additional clarification. Accordingly, if, on remand, the ALJ revises

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his RFC determination and/or the hypothetical, a new determination of the jobs Williams is
capable of performing (if any) will be necessary.
VI.

CONCLUSION

For the foregoing reasons, the decision of the Commissioner is REVERSED and this
cause is REMANDED to the Commissioner for further proceedings consistent with this Entry.
SO ORDERED: 03/13/2013
_______________________________
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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