JONES v. COLVIN

Filing 27

ENTRY ON JUDICIAL REVIEW - Plaintiff Danielle Jones requests judicial review of the final decision of the Defendant, Carolyn W. Colvin, Acting Commissioner of the Social Security Administration ("Commissioner"), denying Jones' appli cation 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. The decision of the Commissioner is REVERSED AND REMANDED for further proceedings consistent with this Entry. (See Entry.). Signed by Judge William T. Lawrence on 9/15/2015.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
DANIELLE JONES,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

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) Cause No. 2:14-cv-00250-WTL-WGH
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ENTRY ON JUDICIAL REVIEW
Plaintiff Danielle Jones requests judicial review of the final decision of the Defendant,
Carolyn W. Colvin, Acting Commissioner of the Social Security Administration
(“Commissioner”), denying Jones’ application 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.
I.

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 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). 1 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. § 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. Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997). 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 her analysis of the evidence in her decision; while she “is not

1

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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required to address every piece of evidence or testimony,” she must “provide some glimpse into
her reasoning . . . [and] build an accurate and logical bridge from the evidence to her
conclusion.” Dixon, 270 F.3d at 1176.
II. BACKGROUND
Jones protectively filed for DIB and SSI on June 16, 2011, alleging that she became
disabled on May 1, 2010, primarily due to back pain, fibromyalgia, chronic obstructive
pulmonary disease (COPD), obstructive sleep apnea, obesity, diabetes, hypertension,
dysmetabolic syndrome X, and major depressive disorder. Jones was born on June 2, 1982, and
she was twenty-seven years old on the alleged disability onset date. Jones has a high school
education, and she has past relevant work experience as a resident care aide and a medical
assistant.
Jones’ application was denied initially on October 11, 2011, and upon reconsideration on
March 15, 2012. Thereafter, Jones requested and received a hearing in front of an Administrative
Law Judge (“ALJ”). A video hearing, during which Jones was represented by counsel, was held
by ALJ Angelita Hamilton on May 20, 2013. The ALJ issued her decision denying Jones’ claim
on June 25, 2013; the appeals council denied Jones’ request for review on June 16, 2014. Jones
then filed this timely appeal.
III.

THE ALJ’S DECISION

The ALJ determined at step one that Jones had not engaged in substantial gainful activity
since May 1, 2010, the alleged onset date. At steps two and three, the ALJ concluded that Jones
had the severe impairments of “chronic obstructive pulmonary disease (COPD); obesity;
degenerative disc disease of the lumbar spine; mild coronary artery disease (CAD); major
depressive disorder; and anxiety disorder,” Record at 12, but that her impairments, singly or in

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combination, did not meet or medically equal a listed impairment. At step four, the ALJ
determined that Jones had the RFC to perform light work with certain postural limitations:
the claimant can lift and/or carry 20 pounds occasionally and 10 pounds frequently;
stand and/or walk for 6 hours in an 8-hour workday; and sit for 6 hours in an 8-hour
workday. The claimant can never climb ladders, ropes or scaffolds but can
occasionally climb ramps and stairs; and occasionally balance, stoop, kneel, crouch,
and crawl. The claimant can have occasional exposure to wetness/humidity;
pulmonary irritants, such as odors, fumes, dusts, and gases; and hazards, such as
moving machinery and unprotected heights. The claimant is limited to simple,
routine, and repetitive tasks; and work free of production-rate pace.
Id. at 16. Given this RFC, the ALJ determined that Jones could not perform any of her past
relevant work. At step five, the ALJ determined that Jones could perform the requirements of a
few representative occupations, such as a folding machine operator, an inserting machine
operator, and a marker. Accordingly, the ALJ concluded that Jones was not disabled as defined
by the Act.
IV.

EVIDENCE OF RECORD

The medical evidence of record is aptly set forth in Jones’ brief (Dkt. No. 22) and need
not be recited here. Specific facts are set forth in the discussion section below where relevant.
V.

DISCUSSION

In her brief in support of her complaint, Jones advances several objections to the ALJ’s
decision; each is addressed below.
A. Substantial Evidence
Jones argues that the ALJ inaccurately characterized the medical opinions upon which
she relied and failed to explain why she rejected the medical conclusions which contradict her
RFC determinations. See SSR 96-8p (stating that “if the RFC assessment conflicts with an
opinion from a medical source, the adjudicator must explain why the opinion was not adopted”);
see also Dixon, 270 F.3d at 1176 (stating that while she “is not required to address every piece of
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evidence or testimony, [the ALJ must] provide some glimpse into her reasoning [and] build an
accurate and logical bridge from the evidence to her conclusion”).
Jones first takes issue with the ALJ’s characterization of Dr. Shuyan Wang’s medical
opinion. On August 30, 2011, Jones met with Dr. Wang for a consultative physical examination
at the request of the state agency. Jones complained of headaches, shortness of breath, chest
pains in her left side, lower back pain, chronic cough, and pain when walking. She also reported
to Dr. Wang that she had stopped working in May of 2010 because of her back pain and COPD.
Dr. Wang noted that Jones walked slowly, in a stooped position, and that she held onto the
hallway wall when she walked out of the clinic. Dr. Wang further noted that Jones had to have
assistance when getting up, switched positions while sitting on the exam table, kept her knee
flexed due to back pain, had difficulty getting up because of her back pain, had decreased
breathing sounds, had diminished right and left foot dorsalis pedis pulse, and reported suffering
from depression.
Dr. Wang also noted that Jones had limited range of motion in several areas and
tenderness over her spinal region. Due to her back pain, Jones could not walk on her toes,
perform heel walking, tandem walking, or squat without holding something. Dr. Wang diagnosed
her with low back pain, left leg pain, sleep apnea, COPD, obesity, diabetes, hypertension,
GERD, depression, and anxiety. Dr. Wang stated that “[c]urrently, the claimant is probably not
able to do much walking and standing due to back pain. She needs restrictions for weight lifting,
carrying, pushing, and pulling. She is not able to do full bending over. She is probably not able to
do full squatting. She probably needs to avoid climbing at this time.” R. at 362. However, Dr.
Wang also noted that Jones had an intact gait and seemed comfortable while sitting in a chair,

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and opined that “[b]ased on the examination, with appropriate treatment for all the problems, the
claimant should be able to do light-duty jobs.” Id.
The ALJ stated that Dr. Wang “opined that the claimant could do light-duty jobs,” and
gave Dr. Wang’s opinion “significant weight.” Id. at 20. The Court agrees with Jones that the
ALJ mischaracterized Dr. Wang’s opinion. It appears to the Court that Dr. Wang was making a
predictive statement that, if Jones received the appropriate treatment, she should be able to do
light work. The Court does not believe that Dr. Wang’s statement can be read to support the
conclusion that at the time of her examination Jones could perform light-duty work; in fact, the
opposite appears to be true. Since the ALJ gave this mischaracterization of Dr. Wang’s medical
opinion significant weight, the Court finds this to be reversible error.
Further, the ALJ’s opinion cherry picks part of Dr. Wang’s report and fails to address
evidence that does not support her conclusion. For example, the ALJ’s opinion states that “Dr.
Wang found that [Jones] had an intact gait and that she appeared comfortable in the seated
position,” but the ALJ never mentioned that Dr. Wang noted that Jones “held onto something to
get up from sitting. When she was sitting on the examination table, sometimes she switched
positions. She had to keep her knees flexed when she was in the supine position due to back pain.
She had difficulty getting up from the supine position due to back pain. . . . The claimant is not
able to do toe walking and heel walking due to pain. She is not able to walk on line for tandem
walking.” Dr. Wang further opined that Jones would “probably not able to do much walking and
standing due to back pain.” Id. at 362. Thus, the ALJ’s opinion improperly ignores those
portions of Dr. Wang’s report that fail to support her opinion. On remand, the ALJ needs to
acknowledge the evidence that does not support her opinion. If she chooses to reject it, she must
explain why.

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B. Credibility
Jones next argues that the ALJ’s credibility determination and resulting rejection of her
allegations of disabling back pain are “patently wrong” because the ALJ “failed to offer a
reasonable, supported justification for rejecting Plaintiff’s allegations of various exertional and
postural limitations due to back pain.” Dkt. No. 22 at 18.
In determining credibility, an ALJ must consider several factors, including the claimant’s
daily activities, 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 her finding with specific
reasons. Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). “Furthermore, the ALJ may not
discredit a claimant’s testimony about [her] pain and limitations solely because there is no
objective medical evidence supporting it.” Id. (citations omitted). District courts “afford a
credibility finding ‘considerable deference,’ and overturn it only if ‘patently wrong.’” Prochaska
v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006) (quoting Carradine v. Barnhart, 360 F.3d 751,
758 (7th Cir. 2004)).
Jones takes issue with what she argues is an inaccurate and erroneous description of her
daily activities by the ALJ. The ALJ noted in her opinion that there were multiple inconsistencies
in the record regarding Jones’ daily activities. Concerning her hearing testimony, the ALJ noted
that Jones “initially stated that she did not do any of the chores but then admitted that she cleans
a little and washes dishes on occasion. . . . The claimant testified that she gets her children ready
for school, helps her son with homework, and attends her son’s school events. The claimant
stated that she went to church three times a month and that she drives 10 miles a day, 5 days a
week.” R. at 19. The Court agrees with Jones that the ALJ’s summary of her testimony was
erroneous. Instead of stating that she drove ten miles a day, five days a week, id., Jones testified

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that she drives “four to five times a month,” id. at 49. That difference is significant. Jones also
testified that she had been to church two to three times total in the span of a few months, id. at
51, not three times a month, id. at 19. She testified that she had not been to any of her children’s
activities in years, she occasionally helped her youngest with his homework, and that she would
wake the children up and they would get ready on their own. Also, the Court cannot find any
statement in the record by Jones that she did not do any chores. The ALJ erred in relying on
mischaracterized testimony to make an adverse credibility finding.
Jones also takes issue with the fact that the ALJ noted the gaps in her medical treatment.
An ALJ can consider infrequent treatment or failure to follow a treatment plan, but “must not
draw any inferences about a claimant’s condition from this failure unless the ALJ has explored
the claimant’s explanations as to the lack of medical care.” Craft v. Astrue, 539 F.3d 668, 679
(7th Cir. 2008) (internal quotation marks omitted). The Court agrees that the ALJ failed to
ascertain why Jones did not seek medical treatment until a year after her alleged onset date. The
ALJ should correct this omission on remand. 2
C. The ALJ’s Step Five Determination
Finally, Jones argues that the ALJ erred at step five because the ALJ “failed to account
for the interruptions that are caused by the Plaintiff’s recurring COPD exacerbations.” Dkt. No.
22 at 22. Because of the other issues the ALJ will be addressing on remand, the step five analysis
also will have to be revisited. On remand, the ALJ should take care to fulfill her obligation to

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Jones also takes issue with the fact that the ALJ repeatedly emphasized her inability to
quit smoking. The Court reminds the ALJ that the Seventh Circuit has held that a claimant’s
inability to quit smoking, by itself, is an unreasonable basis to dismiss her allegations. See
Shramek v. Apfel, 226 F.3d 809, 813 (7th Cir. 2000) (“[E]ven if medical evidence had
established a link between smoking and her symptoms, it is extremely tenuous to infer from the
failure to give up smoking that the claimant is incredible when she testifies that the condition is
serious or painful. . . . This is an unreliable basis on which to rest a credibility determination.”).
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“fully set forth the claimant’s impairments to the extent that they are supported by the medical
evidence in the record.” Herron v. Shalala, 19 F.3d 329, 337 (7th Cir. 1994).
CONCLUSION
For the reasons set forth above, the decision of the Commissioner is therefore
REVERSED AND REMANDED for further proceedings consistent with this Entry.

SO ORDERED: 9/15/15
_______________________________
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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