WALKER v. COLVIN

Filing 25

ENTRY ON JUDICIAL REVIEW - Plaintiff Randy E. Walker requests judicial review of the partially favorable decision by Defendant Carolyn Colvin, Acting Commissioner of the Social Security Administration ("Commissioner"), regarding his app lication for a period of disability and Disability Insurance Benefits ("DIB") under the Social Security Act ("the Act"). The Commissioner's decision is REVERSED and this case is REMANDED for further proceedings consistent with this Entry. (See Entry.) Signed by Judge William T. Lawrence on 9/12/2016.(BRR)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
RANDY E. WALKER,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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ENTRY ON JUDICIAL REVIEW
Plaintiff Randy E. Walker requests judicial review of the partially favorable decision by
Defendant Carolyn Colvin, Acting Commissioner of the Social Security Administration
(“Commissioner”), regarding his application for a period of disability and Disability Insurance
Benefits (“DIB”) under the Social Security Act (“the Act”). The Court rules as follows.

I. PROCEDURAL HISTORY
Walker filed his application for a period of disability and DIB on January 24, 2012,
alleging disability beginning August 14, 2011, due to extensive injuries he sustained in a
motorcycle accident. His application was denied initially and upon reconsideration, whereupon
he requested and was granted a hearing before an administrative law judge (“ALJ”). Walker was
represented by counsel at the hearing, which was held on October 22, 2013, before ALJ Lee
Lewin. Walker, a medical expert, and a vocational expert testified at the hearing. Thereafter, on
November 18, 2013, the ALJ rendered her decision in which she concluded that Walker had been
disabled as defined by the Act for a closed period from August 14, 2011, to August 28, 2012, but
that he was not disabled thereafter. After the Appeals Council denied Walker’s request for
review of the ALJ’s decision, he filed this timely action for judicial review.

II. EVIDENCE OF RECORD
The relevant evidence of record is amply set forth in the parties’ briefs and the ALJ’s
decision and need not be repeated here.
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 his physical or mental limitations prevent him from doing not only his previous
work, but any other kind of gainful employment that exists in the national economy, considering
his 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 he is
not disabled, despite his medical condition and other factors. 20 C.F.R. ' 404.1520(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), 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 his past relevant work, he 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, he is not disabled. 20 C.F.R. ' 404.1520(g).

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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. 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). The ALJ is required to
articulate only a minimal, but legitimate, justification for her 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
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.
IV. THE ALJ’S DECISION
The ALJ found at step one that Walker had not engaged in substantial gainful activity
since his alleged onset date of August 14, 2011. At steps two and three, the ALJ found that
Walker had the severe impairments of status post multiple fractures and surgeries and chronic
pain syndrome, and that his impairments medically equaled Listing 1.06B for the period of
August 14, 2011, through August 28, 2012, but not thereafter. At step four, the ALJ concluded
that beginning on August 29, 2012, Walker had the same severe impairments, but that he had
experienced medical improvement such that he no longer met or equaled any listing and he had
the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) except that he can stand one to two hours at a time and sit one to one
and a half hours at a time. He can frequently balance, occasionally kneel, stoop,
crouch, crawl, and climb ramps and stairs but he can never climb ladders, ropes or
scaffolds. He can frequently handle with the left upper extremity. He should

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avoid concentrated exposure to wetness and hazards including dangerous moving
machinery, unprotected heights and slippery wet or uneven terrain.
Record at 23-24. Given this RFC, the ALJ determined that Walker was unable to perform any of
his past relevant work. At step five, the ALJ found that there were jobs that existed in significant
numbers in the national economy that Walker could perform, including small parts assembler,
labeler, and mail clerk. Accordingly, the ALJ concluded that Walker was not disabled as defined
by the Act as of August 29, 2012.
V. DISCUSSION
Walker argues that the ALJ’s determination that his condition improved as of August 29,
2012, such that he was no longer disabled as defined by the Act is erroneous in several respects.
Walker testified that he had been unable to work since his motorcycle accident and remained so
at the time of the hearing due to pain, lack of stamina, and decreased strength and mobility due to
the residual effects of the multiple fractures he suffered in the accident and the chronic pain
syndrome he subsequently developed. He testified that he could stand for “an hour, maybe two
if I push it” and that he could sit “[i]n an upright chair, probably an hour, maybe an hour and a
half if I push it.” He explained that after sitting in church for an hour and then “standing and
socializing” after the service each week, “I’m ready to go home and get in my recliner, and kick
my feet up.” Record at 49. He testified that he was easily fatigued and would become tired
walking just four blocks. He was taking hydrocodone about every five hours and morphine
twice a day, which he testified helped with his pain but made him drowsy. He further recounted
that he experienced back pain after standing and holding his 22-pound granddaughter for about
ten minutes such that he had to sit down with her.

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Walker’s testimony, if fully credited, demonstrates that he does not retain the RFC to
work at the level found by the ALJ. Walker argues that the ALJ’s determination that he was not
entirely credible is not properly supported. The Court agrees.
As the ALJ correctly acknowledged, with regard to subjective symptoms such as pain and
fatigue, once she determined that Walker had medically determinable impairments that were
reasonably expected to produce the symptoms, then the ALJ was required under the policy in
place at the time 1 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, his 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 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). “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) (citing Arnold v. Barnhart, 473 F.3d 816, 822 (7th Cir. 2007)).
As noted, Walker testified that he had disabling symptoms from his impairments, as well
as drowsiness caused by his medication. The ALJ explained that she found Walker’s
“allegations are not fully credible beginning August 29, 2012,” and continued:

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Subsequent to the ALJ’s decision, the Commissioner superseded SSR 96-7p to eliminate
reference to the claimant’s “credibility.” SSR 16-p (March 16, 2016). The required analysis
otherwise remains substantially the same under the new ruling.
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In reaching my findings, I have considered a variety of factors. I note my residual
functional capacity finding is consistent with, or more generous than, the medical
opinions of record by the State agency consultants and Dr. McKenna. The record
does not contain any medical opinions from treating or examining doctors
imposing work-related limitations greater than as described in my residual
functional capacity for the claimant.
Record at 25. The problem with this reasoning is that the state agency consultants both opined
that Walker was not disabled as of March 2012, when they reviewed his medical records. The
ALJ disagreed with this conclusion, finding that he was disabled until August 28, 2012. Because
the state agency consultants’ opinions were not credited by the ALJ, and in any event they do not
address—and could not have addressed—whether Walker’s condition had improved as of
August 29, 2012, they cannot be used to support a finding regarding Walker’s subjective
symptoms after that date. As for Dr. McKenna, his testimony is exceptionally confusing and
suggests that he was not sufficiently familiar with the medical evidence to render a wellsupported opinion. Indeed, the only explanation he gives for why he believes Walker had
improved as of August 29, 2012, such that he was no longer disabled under the Act is that he was
walking without a limp, or perhaps with a minimal limp. Id. at 91. This explains why he
believes Walker no longer met or equaled Listing 1.06 at that point, but Dr. McKenna does not
address, or even mention, any of Walker’s other symptoms as of that date, address the
impairment of chronic pain syndrome and its effect on Walker’s ability to work, or explain why
he believes Walker was able to sustain full-time work as of August 29, 2012. Therefore neither
his opinion nor those of the state agency consultants provide any reasoned support for rejecting
Walker’s testimony about his subjective symptoms.
The ALJ next opines that Walker “has described daily activities that are not limited to the
extent one would expect, given the complaints of disabling symptoms and limitations. [Walker]
testified he goes fishing, recently went overnight camping, goes to church weekly and controls
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the soundboard, washes dishes, does the laundry, vacuums, makes the bed, takes care of two
dogs, and mows the acre and a half lawn on a riding mower.” Id. at 25. However, Walker’s
testimony actually indicates that he has to limit these activities because of his pain and lack of
stamina. He had only gone fishing “[m]aybe a half a dozen” times since his accident, and could
only fish for a “couple of hours” before he had to leave because of pain. He did go camping
once, but had to cut his trip short because he was too uncomfortable. He feeds his dog and walks
the smaller of the two, but does not bathe them or walk the larger dog due to his impairments.
As noted above, he attends church and works the soundboard during services, but he has to
change positions while doing so and then needs to go home and rest in his recliner afterwards.
He has to take a break in the middle of mowing the lawn because of the pain he experiences on
the riding mower.
The Seventh Circuit has made clear that the ability to perform minimal household chores
and engage in periodic social activities does not by itself equate to residual functional capacity to
work in the national economy. See, e.g., Engstrand v. Colvin, 788 F.3d 655, 661 (7th Cir. 2015)
(“working sporadically or performing household chores are [sic] not inconsistent with being
unable to engage in substantial gainful activity”); accord Beardsley v. Colvin, 758 F.3d 834, 838
(7th Cir. 2014); Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir. 2005); Carradine v. Barnhart,
360 F.3d 751 (7th Cir. 2004). This is especially so when the evidence demonstrates that the
claimant is able to complete those tasks only with great strain. See Beardsley, 758 F.3d at 838;
Craft, 539 F.3d at 680. The activity level described by Walker is simply not inconsistent with
his testimony that he would be unable to work full-time due to pain and lack of stamina.
Next, the ALJ stated:
The claimant further testified that pain medications help relieve the pain and that
physical therapy helped the functioning of the right wrist and left elbow, although
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he had to stop because he lost Medicaid insurance. However, the claimant also
stopped home self-exercise and then reported bilateral knee pain and started using
a cane again a couple times a day for the past two months. This indicates the
claimant is not fully compliant with doctor recommendations. The claimant
acknowledged he has not been prescribed treatment for the knee pain, he has not
seen a specialist and that starting November 2, 2013, his Medicaid is reinstated so
he will be able to resume physical therapy. The claimant further testified his right
wrist has full range of motion with no limitation of use. I find that the claimant’s
allegations are not fully credible beginning August 29, 2012.
Record at 25. It is not entirely clear to the Court what the ALJ is saying in this paragraph. How
is using an unprescribed cane and not seeking medical care during a period in which you have no
health insurance indicative of credibility? Further, Walker did not testify that he had full range
of motion in his wrist; in fact, when asked by the ALJ about how his right wrist limits him, he
testified that he had to hold things differently, “like when I’m doing dishes it’s hard for me to
like stick my arm up in the cabinet to – to lay something flat down because my wrist don’t turn
to the outside, to turn my wrist out.” Id. at 50. Even if he had so testified, it is not clear how the
fact of having full range of motion in his right wrist would make his testimony about the pain
and fatigue he experiences less credible.
The fact that Walker admitted to stopping his home exercises could be a relevant
consideration in assessing his credibility, as an “ALJ may deem an individual’s statements less
credible if medical reports or records show that the individual is not following the treatment as
prescribed.” Murphy v. Colvin, 759 F.3d 811, 816 (7th Cir. 2014) (citing SSR 96–7p and Craft,
539 F.3d at 679).
However, such evidence should not negatively affect an individual’s credibility if
there are good reasons for the failure to complete the plan. Therefore, an ALJ
may need to question the individual at the administrative proceeding to determine
whether there are good reasons the individual did not seek medical treatment or
fully comply with prescribed treatment.

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Id. Here, the ALJ asked Walker if he had “kept up with home exercises” for his right wrist and
his left elbow after he could no longer afford physical therapy, and Walker replied “I did it for a
little while, but then I just kind of got away from it. It didn’t seem like it was really – it was hard
for me to stay motivated and --.” Record at 57. The ALJ then moved on to another topic. This
scant testimony was not sufficient to satisfy the ALJ’s burden of determining whether Walker
had a good reason for discontinuing his home exercises. Cf. Murphy, 759 F.3d at 816 (“[T]he
ALJ did not ask Murphy why she did not attend all of her physical therapy sessions, or why she
did not comply with her home exercise program. There may be a reasonable explanation behind
Murphy’s actions, such as she may not have been able to afford the treatment, further treatment
would have been ineffective, or the treatment created intolerable side effects.”).
Because the ALJ failed adequately to support her credibility determination, remand is
necessary. On remand, the ALJ also shall clarify what Walker’s treating physician, Dr. Kaehr,
meant when he opined that Walker could not perform “manual labor,” as that term could
reasonably be interpreted as including anything more than sedentary work, although the ALJ
apparently assumed otherwise. The ALJ also shall reevaluate her consideration of the finding of
disability by the state Medicaid Agency, as the ALJ noted only that such a determination is not
binding on the Commissioner, but did not explain what weight, if any, she gave to it and why.
Cf. Hall v. Colvin, 778 F.3d 688, 691 (7th Cir. 2015) (finding the ALJ’s “failure to analyze and
weigh the Veteran Administration’s determination that the applicant is totally disabled” was an
“oversight” that should be addressed on remand).
VI. CONCLUSION
For the reasons set forth above, the Commissioner’s decision is REVERSED and this
case is REMANDED for further proceedings consistent with this Entry.

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SO ORDERED: 9/12/16

_______________________________
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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