Skaggs v. Commissioner of Social Security

Filing 20

Memorandum Opinion and Order: the Court REVERSES and REMANDS the Commissioner's decision for proceedings consistent with this opinion. Magistrate Judge Kathleen B. Burke on 6/15/2017. (P,G)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JENNIFER L. SKAGGS,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 3:16-cv-01200
MAGISTRATE JUDGE
KATHLEEN B. BURKE

MEMORANDUM OPINION & ORDER

Plaintiff Jennifer L. Skaggs (“Plaintiff” or “Skaggs”) seeks judicial review of the final
decision of Defendant Commissioner of Social Security (“Defendant” or “Commissioner”)
denying her applications for social security disability benefits. Doc. 1. This Court has
jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned Magistrate
Judge pursuant to the consent of the parties. Doc. 13. As explained more fully below, the
Administrative Law Judge’s reasons for discounting Skaggs’ credibility are not supported by the
record and/or are not sufficiently explained to allow this Court the ability to determine whether
the credibility assessment is supported by substantial evidence. Accordingly, the Court
REVERSES and REMANDS the Commissioner’s decision for further proceedings consistent
with this opinion.
I. Procedural History
Skaggs filed applications for Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) on February 13, 2013. Tr. 136, 247, 251. She alleged a disability onset
date of September 1, 2005, (Tr. 136, 247, 251), but later amended her alleged onset date to July
20, 2011 (Tr. 36, 136). Skaggs alleged disability due to fibromyalgia, rheumatoid arthritis,
1

neuropathy, lumbar radiculopathy, carpal tunnel syndrome, hand numbness, polyneuropathy,
DDD, diabetes mellitus – type 2, sciatica, vertigo, obesity, and depression. Tr. 71, 157, 174,
271. Skaggs’ applications were denied initially (Tr. 157-172) and upon reconsideration by the
state agency (Tr. 174-185). Thereafter, she requested an administrative hearing. Tr. 186. On
November 13, 2014, Administrative Law Judge Yvette N. Diamond (“ALJ”) conducted an
administrative hearing. Tr. 33-70.
In her December 19, 2014, decision (Tr. 133-154), the ALJ determined that Skaggs was
not under a disability within the meaning of the Social Security Act from July 20, 2011, through
the date of the decision (Tr. 149). Skaggs requested review of the ALJ’s decision by the Appeals
Council. Tr. 21. On March 21, 2016, the Appeals Council denied Skaggs’ request for review,
making the ALJ’s decision the final decision of the Commissioner. Tr. 1-7.
II. Evidence
A.

Personal, vocational and educational evidence
Skaggs was born in 1974. Tr. 38, 147, 247. At the time of the hearing, Skaggs was 40

years old. Tr. 38. She was divorced with two adult children, ages 21 and 22. Tr. 38. She lived
in a house with her two children. Tr. 38. She weighed 285 pounds and was 5 feet tall. Tr. 38.
Skaggs graduated from high school and attended college but she did not complete one full year
of college. Tr. 39, 272.
Skaggs’ past work included self-employment as an in-home daycare provider. Tr. 40.
She performed that work from 2004 to 2010. Tr. 40. Skaggs performed the in-home daycare
work herself, having a maximum of six children in her care at a time. Tr. 40. From 2005 until
2007, the age ranges of the children in her care were 3 months up to 11 years old. Tr. 40-41. In
2009 and 2010, Skaggs only cared for older children. Tr. 41. She was unable to care for babies

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and toddlers because she was unable to pick them up. Tr. 41. She stopped her in-home daycare
work in 2010. Tr. 40. After Skaggs stopped working as an in-home daycare provider, she
applied for one cashier job. Tr. 43.
Prior to her in-home daycare work, in 2002, Skaggs worked as an assistant supervisor
in a pre-school for 3-year olds. Tr. 41. Prior to the pre-school work, Skaggs also worked as a
sales clerk/stock clerk/cashier in a toy store and as a mortgage loan representative. Tr. 42-43.
B.

Medical evidence
1.

Treatment history

Skaggs is an obese woman (Tr. 410, 419) who seeks disability based on her multiple
medical conditions. Since 2005 through at least 2014, Skaggs has been diagnosed with and
treated for various conditions, including urinary problems (Tr. 368-405, 541-543, 546, 625),
diarrhea (Tr. 429-431, 456-458, 469, 477-480, 482-483, 485-486, 544-545, 546, 573-578),
heartburn (Tr. 544-545), rheumatoid arthritis (Tr. 356, 490-503, 505, 555-556, 594-602),
fibromyalgia (Tr. 356, 419, 431, 504, 506, 551-552, 555, 579-593, 594-602), diabetes mellitus,
type II (Tr. 540, 552, 555-556), back and leg pain (Tr. 406-428, 504, 514-516, 536, 553, 571572, 579-593, 603-611, 626-627), sensory loss/neuropathy (Tr. 504, 537-539, 540, 603-611,
625-632), foot pain (Tr. 540, 623-624), speech difficulty (603, 606, 607), and depression (Tr.
485-486, 489, 552, 555-556). In 2013 through the first part of 2014, Skaggs lost her medical
insurance coverage and could not afford medical treatment, including medications. Tr. 47-48,
102, 282, 289, 297, 517, 527.

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2.

Opinion evidence
a.

Physical impairment medical opinions

Consultative examining physician’s opinion
On May 6, 2013, Marsha D. Cooper, M.D., saw Skaggs for a consultative evaluation. Tr.
517-525. Skaggs’ daughter was with her at the visit. Tr. 519. Skaggs complained of heartburn,
swollen legs, her fingers getting stuck sometimes, aches in her body all the time, urinary and
fecal incontinence, and low back pain. Tr. 517. Skaggs indicated she had been off of her
medication since January because her child had turned 18 years old and she lost her medical
card, which was really the reason why she was applying for disability. Tr. 517. On examination,
Dr. Cooper observed that Skaggs was “very obese, short statured female, [and] somewhat
theatrical.” Tr. 519. Dr. Cooper’s examination of Skaggs’ spine revealed a negative straight leg
raise, loss of lordotic curve, and no gross deformities. Tr. 519. There was no cyanosis, clubbing
or edema in Skaggs’ extremities and Skaggs’ pedal pulses were good at 3/4. Tr. 519. There
were no effusions, redness, heat or gross deformities observed in Skaggs’ bones/joints. Tr. 519.
Dr. Cooper also observed that Skaggs was slightly pigeon-toed with her right foot; she did not
require assistive devices; she had a normal cadence to her gait; and she had no issues with weight
transfer or balance. Tr. 519. Skaggs’ deep tendon reflexes were equal and symmetric at 2/4; she
had normal right and left hand grips; normal finger to nose with eyes open and closed; normal
manual dexterity; Rhomberg and Babinski were normal; and Skaggs had normal balance. Tr.
519. With the exception of slight limitations in range of motion with flexion and extension of
the dorsolumbar spine, range of motion testing was normal. Tr. 522-525. Manual muscle testing
was normal. Tr. 521.

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Dr. Cooper’s clinical impression was that:
The claimant's physical complaints do not correlate with any of the findings that I
find. Additionally, her back pain can easily be explained by her gross obesity. Her
innumerable somatic complaints however, do not correlate to the clinical findings.
This candidate is capable of sedentary work with no issues. No abnormal
neurologic findings are found. There are no abnormal findings of the
cardiovascular or pulmonary system. Her intellect is excellent as well.
Tr. 519-520.
Reviewing physicians’ opinions
On May 21, 2013, state agency reviewing physician Leon D. Hughes, M.D., completed a
physical RFC assessment. Tr. 78-80. Dr. Hughes opined that Skaggs could occasionally
lift/carry 20 pounds and frequently lift/carry 10 pounds; stand/walk a total of 4 hours; sit about 6
hours; and push/pull unlimitedly other than as shown for lift/carry. Tr. 78. Dr. Hughes
explained that the exertional limitations were based on Skaggs’ massive obesity, noting that her
BMI wavered between 55 and 60. Tr. 78. Dr. Hughes also opined that Skaggs had the
following postural limitations: occasional climbing ramps/stairs, stooping, kneeling, crouching,
and crawling and never climbing ladders/ropes/scaffolds. Tr. 78-79. Dr. Hughes explained that
the postural limitations were based on Skaggs’ massive obesity and DJD. 1 Tr. 79. Dr. Hughes
opined that Skaggs was limited to frequent handling and fingering due to CTS. 2 Tr. 79. Dr.
Hughes also opined that Skaggs would be required to avoid hazards, i.e., unprotected heights,
due to her obesity. Tr. 79-80.

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“DJD” is believed to stand for degenerative joint disease.

2

“CTS” is believed to stand for carpal tunnel syndrome.

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Upon reconsideration, on July 2, 2013, state agency reviewing physician John L.
Mormol, M.D., completed a physical RFC assessment. Tr. 107-109. Dr. Mormol reached the
same opinions as Dr. Hughes regarding Skaggs’ limitations. 3 Tr. 107-109.
b. Mental impairment medical opinions
Consultative examining psychologist’s opinion
On August 5, 2013, consultative examining psychologist Wayne Morse, Ph.D., conducted
a consultative evaluation. Tr. 526-534. Skaggs drove herself to the evaluation. Tr. 526.
Skaggs’ chief complaints were back pain, which started at age 7 due to a motor vehicle accident;
rheumatoid arthritis, which was diagnosed at age 18 months; chronic diarrhea; and diabetes. Tr.
526-527. Skaggs indicated that her diabetes was well under control with medication but she was
not taking medication due to a lack of medical insurance. Tr. 527. She reported that her pain
level increases with any type of physical activity. Tr. 527. Dr. Morse noted that, in 2012,
Skaggs reported having 10-12 bowel movements per day and was referred to a physician for a
colonoscopy. Tr. 527. As far as activities of daily living, Skaggs reported that she has good
days and bad days so her ability to perform household chores depends on how she is feeling on a
particular day. Tr. 528. She reported that her symptoms had been “seriously interfering with her
functioning for most of her life, but especially the past 3 years.” Tr. 528. Dr. Morse observed
that Skaggs had a difficult time walking and sitting due to her back problems and she shifted
uncomfortably in her seat and had to stand up and walk around during the evaluation briefly to
relieve her discomfort. Tr. 529. Skaggs’ overall mood was depressed and anxious with a broad
and appropriate affect. Tr. 529. She was very tearful when talking about her mental health

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The opinions were the same with the exception of Dr. Mormol noting that Skaggs’ exertional limitations were
based on her massive obesity and DDD in the spine, which is believed to stand for degenerative disc disease, and the
postural limitations were based on Skaggs’ obesity and DDD, as opposed to DJD. Compare Tr. 107-108 with Tr.
78-79.
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symptoms. Tr. 529. She reported suicidal thoughts with a plan but she expressed no serious
intent or sense of immediacy. Tr. 529.
Dr. Morse diagnosed major depressive disorder, recurrent, severe without psychotic
features; specific phobia (situational type); post-traumatic stress disorder; dissociative disorder
(not otherwise specified); learning disorder (not otherwise specified). Tr. 530. Dr. Morse
opined that Skaggs’ prognosis was poor, indicating that Skaggs did not feel the need for mental
health treatment; her medical problems continued to deteriorate, which exacerbated her mental
health issues; and without psychotherapy and psychotropic medication, it was very unlikely that
her currents symptoms would improve. Tr. 531. Dr. Morse indicated Skaggs had “serious
medical issues that limit her mobility and exacerbate her psychopathology.” Tr. 531.
With respect to Skaggs’ functional abilities, Dr. Morse opined that Skaggs would have no
difficulty remembering work-like procedures and no difficulty understanding and remembering
very short and simple instructions but she would have difficulty understanding and remembering
detailed instructions due to her dissociative symptomatology. Tr. 532. He opined that Skaggs
would have no difficulty carrying out very short and simple instructions, as well as detailed
instructions but she would have considerable difficulty sustaining an ordinary routine,
performing at a consistent pace, making simple work-related decisions, and completing a normal
workday without frequent interruptions from her dissociative symptomatology, limited physical
mobility, and anxiety. Tr. 532. Dr. Morse opined that the evidence suggested that Skaggs had
great difficulty interacting with the general public due to her social anxiety and fear of men and
those symptoms would significantly interfere with her ability to work in coordination with
others, ask simple questions, request assistance or respond appropriately to criticism from
supervisors but she would be able to maintain socially appropriate behavior and adhere to basic

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standards of neatness and cleanliness. Tr. 532-533. Dr. Morse also opined that the evidence
suggested that Skaggs would be unable to respond appropriately to changes in the work setting,
set realistic goals, make plans independently of others, or engage in activities independent of
supervision or direction; she needed a great deal of assistance managing household chores and
her finances but she was able to care for her personal hygiene; and she would have considerable
difficulty managing normal, everyday work pressures. Tr. 533.
Reviewing psychologist’s opinions
Upon reconsideration, on August 13, 2013, state agency reviewing psychologist Leslie
Rudy, Ph.D., completed a Psychiatric Review Technique (“PRT”) (Tr. 104-105) and Mental
RFC Assessment (Tr. 109-111).
In the PRT, Dr. Rudy found that Skaggs would have mild restrictions in activities of daily
living; moderate difficulties in maintaining social functioning and in maintaining concentration,
persistence, or pace; and no repeated episodes of decompensation. Tr. 105. In the Mental RFC
Assessment, Dr. Rudy found no understanding and memory limitations but found some
limitations in the areas of sustained concentration and persistence, social interaction, and
adaptation. Tr. 109-110.
In the area of sustained concentration and persistence, Dr. Rudy opined that Skaggs
would be moderately limited in her ability to carry out detailed instructions; maintain attention
and concentration for extended periods; work in coordination with or in proximity to others
without being distracted by them; and complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods. Tr. 109-110. Dr. Rudy explained the
limitations in concentration and pace, stating that Skaggs “has a decreased ability to complete

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more complex tasks. She would be limited to performing simple, routine tasks which do not
require working at a rapid pace or meeting strict production demands.” Tr. 110.
In the area of social interaction, Dr. Rudy opined that Skaggs would be markedly limited
in her ability to interact appropriately with the general public; and moderately limited in her
ability to accept instructions and respond appropriately to criticism from supervisors and get
along with coworkers or peers without distracting them or exhibiting behavioral extremes. Tr.
110. Dr. Rudy further explained the social interaction limitations, stating that Skaggs “endorses
panic symptoms and problems dealing with the public. The [claimant] is able to interact with
familiar others superficially and occasionally in a nonpublic setting.” Tr. 110.
In the area of adaptation, Dr. Rudy opined that Skaggs would be moderately limited in
her ability to respond appropriately to changes in the work setting, explaining, however, that
Skaggs “is able to adapt to routine changes in her job duties.” Tr. 110.
C.

Testimonial evidence
1.

Plaintiff’s testimony

At the hearing, Skaggs testified (Tr. 37-60) and was represented by Linda Dickman, a
non-attorney representative (Tr. 15, 35, 155). Skaggs’ testimony included her description of her
past employment, various treatment providers, medications, and functional abilities. Tr. 40-60.
Skaggs indicated that, about 8 months prior to the November 13, 2014, hearing, she was
without insurance and was unable to take medication for her diabetes or check her sugar on a
regular basis. Tr. 43-44, 47-48. At the time of the hearing, she was taking her medicines
regularly as prescribed. Tr. 48. Skaggs indicated she felt her medication helped. Tr. 48.
Skaggs estimated being able to lift less than 10 pounds, stating she has a hard time
picking up a gallon of milk. Tr. 49. In response to a question regarding how far she could walk,

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Skaggs indicated that, if she parked in a handicap parking space at the grocery store, she would
be in pain by the time she got to the front doors and would need to use a motorized shopping cart
to continue her shopping. Tr. 49. Skaggs estimated being able to stand less than 5 minutes
without holding on to anything. Tr. 57. She has to then sit down or lean up against a wall but
cannot lean on a wall for too long because her knees and back start hurting. Tr. 57. Skaggs can
sit longer than she can stand but she has to shift her body and change positions quite a bit and she
has to get up. Tr. 57. She is unable to sit and watch television or a movie for a couple hours
without getting up. Tr. 57. Skaggs loses her balance and has fallen as a result. Tr. 58. She has
fallen up to 5 times in one month. Tr. 58.
Skaggs is able to dress herself and take a shower but she needs to use a bath seat to take a
shower because it is too hard to get up from a sitting position in the bathtub and she cannot stand
too long in the shower. Tr. 49. Skaggs can do dishes but has to take breaks in between because
the pain in her back is severe and she has to sit to relieve some of the pain. Tr. 50. She can fold
laundry while sitting but her children have to carry the laundry baskets for her because she
cannot lift the full baskets. Tr. 50. In 2012, Skaggs had to stop vacuuming, mopping and
sweeping because the walking back and forth was aggravating her condition. Tr. 50. Since July
2011, Skaggs has been unable to mow the lawn, shovel snow, or rake leaves. Tr. 50-51. Skaggs
indicated she does go grocery shopping but usually with her daughter, who carries the bags. Tr.
51. Skaggs is unable to go shopping at the mall unless she has her wheelchair. Tr. 51. Skaggs
can cook but requires use of a wheelchair or kitchen chair to sit down if she has to stir something
continuously. Tr. 51. She is able to put something in the oven and then she will sit down. Tr.
51. Skaggs’ daughter usually makes dinner because it requires a little more time and standing.
Tr. 55.

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Skaggs indicated that she had not gone swimming in the prior three years. Tr. 51-52.
Skaggs indicated that she is unable to take a walk. Tr. 52. If she walks to the front door and her
car, her back is usually hurting. Tr. 52. Skaggs goes out to eat about once every six months and
she usually goes to religious services with her father once a week on Sundays. Tr. 53. Skaggs
talks to her sister and mother on the telephone at least once a day. Tr. 55.
Skaggs enjoys writing poems. Tr. 53. She also enjoys crafts. Tr. 53. During the prior
three years, the craft that she performed was painting large wood blocks while sitting. Tr. 53-54.
She used to sew but stopped in 2010 because of the pain in her hands. Tr. 53-54. On average,
Skaggs uses a desktop computer about 30-45 minutes a day. Tr. 54. Skaggs is able to drive and,
depending on how she feels, she drives/picks up her children to/from class or work if needed.
Tr. 39, 54-55.
Beginning in 2009, Skaggs started having diarrhea and she has to use the restroom 10-12
times each day because of her diarrhea. Tr. 55. Initially, when her diarrhea started, the
occurrences were not as frequent as 10-12. Tr. 55. However, the frequency of her bouts with
diarrhea was one of the reasons she had to stop providing daycare for children. Tr. 55. Skaggs
had started to take medicine for the diarrhea about a month before the hearing and had not yet
had a normal bowel movement. Tr. 55-56. Skaggs also experiences urinary incontinence. Tr.
59. She indicated she usually has daily urinary and bowel accidents. Tr. 59. Towards the latter
part of the hearing, during the vocational expert’s testimony, Skaggs’ representative requested
that Skaggs be excused because she needed to use the restroom. Tr. 64. With the agreement of
Skaggs and her representative, the vocational expert’s testimony continued in Skaggs’ absence.
Tr. 64.

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Skaggs indicated that her rheumatoid arthritis mostly affects her knees and ankles,
causing swelling and pain. Tr. 56. Several times a week she has swelling in her knees and
ankles and it limits her mobility. Tr. 56. Skaggs’ pain became so bad that she had to stop
working in 2010. Tr. 57.
2.

Vocational Expert

Vocational Expert (“VE”) Joey Kilpatrick testified at the hearing. Tr. 60-69. The VE
classified Skaggs’ past work as: (1) store laborer, an unskilled position, classified and performed
at the medium level; (2) cashier II, and unskilled position, classified and performed at the light
level; (3) preschool teacher, a skilled, light level position; (4) childcare provider, an unskilled
position, classified at the medium level and performed at light and medium levels; and (5)
mortgage loan processor, a skilled position, classified at the sedentary level and performed at the
light level. Tr. 62-63.
The ALJ asked the VE to assume an individual the same age and with the same education
and work experience as Skaggs who could lift/carry 20 pounds occasionally and 10 pounds
frequently; stand/walk for 4 out of 8 hours; sit for 6 out of 8 hours; unlimited pushing and
pulling; no climbing ladders; occasionally climbing stairs, balancing, stooping, kneeling,
crouching, and crawling; frequent fingering and handling; no exposure to hazards; limited to
simple, routine tasks without strict production demands or fast pace; and occasional contact with
supervisors, coworkers, and the public. Tr. 64, 65. The VE indicated that the described
individual would be able to perform Skaggs’ past work as a self-employed childcare provider.
Tr. 65.
For the second hypothetical, the ALJ added to the first hypothetical an additional
limitation, i.e., the individual would need the option to sit or stand at will without leaving the

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work station. Tr. 65-66. The VE indicated that the second described individual would be unable
to perform Skaggs’ past work but there were other light, unskilled jobs in the region and nation
that the described individual could perform, including (1) office helper; (2) shipping and
receiving clerk; and (3) inspector for batteries. 4 Tr. 66. The VE explained that the customary
tolerances that a typical employer would have for unexcused or unscheduled absences was one
and a half days per month and the customary number and length of breaks that a typical
employer would allow during the work day was between 10-15 minutes after 2 hours of work in
the morning and in the afternoon and between 30-60 minutes for lunch after 4 hours of work. Tr.
66-67. The VE explained further that employers typically tolerate employees being off task 10%
of the time. Tr. 67. Also, the VE indicated that employers would not tolerate an employee
needing to take a 5-minute break every hour to use the restroom. Tr. 67.
III. Standard for Disability
Under the Act, 42 U.S.C § 423(a), eligibility for benefit payments depends on the
existence of a disability. “Disability” is defined as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Furthermore:
[A]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the
national economy5 . . . .

4

The VE provided national and statewide job incidence data for the jobs identified. Tr. 66.

5

“’[W]ork which exists in the national economy’ means work which exists in significant numbers either in the
region where such individual lives or in several regions of the country.” 42 U.S.C. § 423(d)(2)(A).

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42 U.S.C. § 423(d)(2)(A).
In making a determination as to disability under this definition, an ALJ is required to
follow a five-step sequential analysis set out in agency regulations. The five steps can be
summarized as follows:
1.

If claimant is doing substantial gainful activity, he is not disabled.

2.

If claimant is not doing substantial gainful activity, his impairment must
be severe before he can be found to be disabled.

3.

If claimant is not doing substantial gainful activity, is suffering from a
severe impairment that has lasted or is expected to last for a continuous
period of at least twelve months, and his impairment meets or equals a listed
impairment, 6 claimant is presumed disabled without further inquiry.

4.

If the impairment does not meet or equal a listed impairment, the ALJ must
assess the claimant’s residual functional capacity and use it to determine if
claimant’s impairment prevents him from doing past relevant work. If
claimant’s impairment does not prevent him from doing his past relevant
work, he is not disabled.

5.

If claimant is unable to perform past relevant work, he is not disabled if,
based on his vocational factors and residual functional capacity, he is
capable of performing other work that exists in significant numbers in the
national economy.

20 C.F.R. §§ 404.1520, 416.920; 7 see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
Under this sequential analysis, the claimant has the burden of proof at Steps One through Four.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the

6

The Listing of Impairments (commonly referred to as Listing or Listings) is found in 20 C.F.R. pt. 404, Subpt. P,
App. 1, and describes impairments for each of the major body systems that the Social Security Administration
considers to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age,
education, or work experience. 20 C.F.R. § 404.1525.

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The DIB and SSI regulations cited herein are generally identical. Accordingly, for convenience, further citations
to the DIB and SSI regulations regarding disability determinations will be made to the DIB regulations found at 20
C.F.R. § 404.1501 et seq. The analogous SSI regulations are found at 20 C.F.R. § 416.901 et seq., corresponding to
the last two digits of the DIB cite (i.e., 20 C.F.R. § 404.1520 corresponds to 20 C.F.R. § 416.920).

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Commissioner at Step Five to establish whether the claimant has the RFC and vocational factors
to perform work available in the national economy. Id.
IV. The ALJ’s Decision
In her December 19, 2014, decision, the ALJ made the following findings: 8
1.

2.

Skaggs has not engaged in substantial gainful activity since July 20, 2011,
the amended alleged onset date. Tr. 138.

3.

Skaggs has the following severe impairments: fibromyalgia, rheumatoid
arthritis, morbid obesity, diabetes mellitus, spinal disorders, duodenitis,
gastroesophageal reflux disease (GERD), and depression. Tr. 138.

4.

Skaggs does not have an impairment or combination of impairments that
meets or medically equals the severity of a Listing. Tr. 138-141.

5.

Skaggs has the RFC to perform light work except she can lift and carry
twenty pounds occasionally and ten pounds frequently; stand or walk for
four out of eight hours; and sit for six out of eight hours. She can push and
pull without limitation. She can occasionally climb stairs, balance, stoop,
kneel, crouch, and crawl but she cannot climb ladders. She can frequently
finger and handle. She requires the option to sit or stand at will without
leaving the workstation. She cannot have any exposure to hazards. She is
limited to simple, routine tasks that are not fast paced and do not have strict
production demands. She is limited to occasional contact with supervisors,
coworkers, and the public. Tr. 141-147.

6.

Skaggs is unable to perform any past relevant work. Tr. 147.

7.

Skaggs was born in 1974 and was 37 years, defined as a younger individual
18-49, on the amended alleged onset date. Tr. 147.

8.

Skaggs has at least a high school education and is able to communicate in
English. Tr. 148.

9.

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Skaggs meets the insured status requirements through December 31, 2015.
Tr. 138.

Transferability of job skills is not material to the determination of
disability. Tr. 148.

The ALJ’s findings are summarized.

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10.

Considering Skaggs’ age, education and work experience, and RFC, there
are jobs that exist in significant numbers in the national economy that
Skaggs can perform, including office helper, shipping and receiving clerk,
and battery inspector. Tr. 148-149.

Based on the foregoing, the ALJ determined that Skaggs had not been under a disability
from July 20, 2011, through the date of the decision. Tr. 149.
V. Parties’ Arguments
Skaggs challenges the ALJ’s credibility assessment, arguing that the ALJ erred in her
evaluation of Skaggs’ statements regarding the severity, persistence and limiting effects of her
fibromyalgia, musculoskeletal pain, diabetic neuropathy, diarrhea/bowel incontinence. Doc. 16,
pp. 11-20; Doc. 19. Skaggs also argues that the ALJ erred because she did not consider Skaggs’
impairments in combination. Doc. 16, pp. 20-23.
In response, the Commissioner argues that the ALJ reasonably considered Skaggs’
subjective complaints and reasonably considered all of her impairments in combination. Doc.
17, pp. 7-17.
VI. Law & Analysis
A.

Standard of review
A reviewing court must affirm the Commissioner’s conclusions absent a determination

that the Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321
F.3d 611, 614 (6th Cir. 2003). “Substantial evidence is more than a scintilla of evidence but less
than a preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028,
1030 (6th Cir. 1992) (quoting Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681
(6th Cir. 1989).
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The Commissioner’s findings “as to any fact if supported by substantial evidence shall be
conclusive.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citing 42
U.S.C. § 405(g)). Even if substantial evidence or indeed a preponderance of the evidence
supports a claimant’s position, a reviewing court cannot overturn the Commissioner’s decision
“so long as substantial evidence also supports the conclusion reached by the ALJ.” Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003). Accordingly, a court “may not try the
case de novo, nor resolve conflicts in evidence, nor decide questions of credibility.” Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
B.

Reversal and remand is warranted because the ALJ’s reasons for discounting
Skaggs’ credibility are not supported by the record and/or are not sufficiently
explained to allow this Court the ability to determine whether the credibility
assessment is supported by substantial evidence
Skaggs challenges the ALJ’s credibility assessment, arguing that the ALJ erred in her

evaluation of Skaggs’ statements regarding the severity, persistence and limiting effects of her
fibromyalgia, musculoskeletal pain, diabetic neuropathy, diarrhea/bowel incontinence. Doc. 16,
pp. 11-20; Doc. 19.
Social Security Ruling 96–7p and 20 C.F.R. § 404.1529 describe a two-part process for
assessing the credibility of an individual's subjective statements about her symptoms. First, the
ALJ must determine whether a claimant has a medically determinable physical or mental
impairment that can reasonably be expected to produce the symptoms alleged; then the ALJ must
evaluate the intensity and persistence associated with those symptoms to determine how those
symptoms limit a claimant’s ability to work.
When evaluating the intensity and persistence of a claimant’s symptoms, consideration is
given to objective medical evidence and other evidence, including: (1) daily activities; (2) the
location, duration, frequency, and intensity of pain or other symptoms; (3) precipitating and
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aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken
to alleviate pain or other symptoms; (5) treatment, other than medication, received for relief of
pain or other symptoms; (6) any measures used to relieve pain or other symptoms; and (7) other
factors concerning functional limitations and restrictions due to pain or other symptoms. 20
C.F.R. § 404.1529(c); Soc. Sec. Rul. 96–7p, Evaluation of Symptoms in Disability Claims:
Assessing the Credibility of an Individual’s Statements, 1996 WL 374186, at 3 (July 2, 1996)
(“SSR 96-7p”). 9 “An ALJ's findings based on the credibility of the applicant are to be accorded
great weight and deference, particularly since an ALJ is charged with the duty of observing a
witness's demeanor and credibility. Nevertheless, an ALJ's assessment of a claimant's credibility
must be supported by substantial evidence.” Calvin v. Comm'r of Soc. Sec., 437 Fed. Appx. 370,
371 (6th Cir. 2011) (citing Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.1997)).
While not succinctly stated in the decision, it appears that the ALJ discounted Skaggs’
subjective statements regarding the extent of her limitations due to the extent of her activities of
daily living (Tr. 142), lack of support for Skaggs’ stated need to use the restroom 10-12 times
each day due to diarrhea (Tr. 142, 145), lack of support from objective findings in the record (Tr.
142, 144), and gaps in treatment (Tr. 142, 144). Although an ALJ’s credibility assessment is
generally afforded great deference, here, as explained more fully below, the ALJ’s reasons for
discounting Skaggs’ credibility are not supported by the record and/or are not sufficiently
explained to allow this Court the ability to determine whether the credibility assessment is
supported by substantial evidence.
The ALJ discounted Skaggs’ reports of needing to use the restroom 10-12 times per day
due to digestive and gastrointestinal problems, finding that, while Skaggs indicated she needed to

9

SSR 16-3p, with an effective date of March 28, 2016, supersedes SSR 96-7p. 2016 WL 1119029 (March 16,
2016); 2016 WL 1237954 (March 24, 2016).
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use the restroom 10-12 times per day since 2009, she had been able to sustain work and other
activities during some of that period and she “sat for an hour before requesting a restroom break”
during the hearing. Tr. 142; see also Tr. 145 (“Although the claimant alleges the constant need
for restroom breaks, she only requested one at the hearing after sitting for more than an hour.”).
The ALJ’s explanation is flawed for a couple reasons.
First, during the hearing, Skaggs testified that her diarrhea started in 2009 but, initially, it
was not as frequent as 10-12 times per day. Tr. 55. Also, because Skaggs did not want to put the
children in her care in “harm’s way,” her frequent diarrhea was one of the reasons she stopped
working. Tr. 55. Next, the ALJ’s statements that Skaggs “sat for an hour before requesting a
restroom break” and that “she only requested one [restroom break] at the hearing after sitting for
more than an hour” are not supported by the record. Tr. 142, 145. The hearing commenced at
12:31 p.m. and ended at 1:32 p.m. Tr. 35, 70. The hearing lasted one hour and one minute but
Skaggs requested a restroom break during the VE’s testimony and the hearing continued on in
Skaggs’ absence. Tr. 64. Accordingly, the record does not support the ALJ’s factual finding that
Skaggs “sat for an hour” or “for more than an hour” before requesting a restroom break. Rather,
she needed a break before a full hour had passed. Also, it is unclear how Skaggs’ request for a
restroom break during the course of a one-hour and one-minute hearing diminishes the
credibility of her repeated statements that she had 10-12 bowel movements each day and
required restroom breaks as a result. See e.g., Tr. 485 (9/20/2012 complaints of diarrhea, with
10-12 bowel movements per day); Tr. 429 (10/3/2012 complaints of diarrhea starting in 2010,
with 10-12 stools per day); Tr. 573 (6/10/2014 emergency room visit with complaints of
vomiting and diarrhea); Tr. 544-546 (8/11/2014 complaints of abdominal cramping and inability

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to control bowels 10-12 times per day; reports of accidents daily as a result; diagnosis of osmotic
diarrhea); Tr. 469, 482 (10/19/2012 colonoscopy performed due to diarrhea).
The ALJ’s factual misstatement and/or her failure to fully support and/or explain why she
found Skaggs’ claimed need for 10-12 restroom breaks per day not credible is not harmless
because the VE testified that an individual would not be permitted to take a 5-minute break every
hour to use the restroom, since such a limitation would amount to a need to leave the workstation
to take unscheduled breaks. Tr. 67-68.
The ALJ considered gaps in treatment when discussing and discounting Skaggs’
conditions and determining the extent of limitations caused by those conditions. For example,
when discussing Skaggs’ diabetes, the ALJ stated, “As with her other impairments, the claimant
went an extended period without treatment thereafter.” Tr. 144. Similarly, when discussing
Skaggs’s gastrointestinal problems, the ALJ stated, “Further, in June 2012, the claimant went to
the emergency room complaining of nausea, vomiting, and diarrhea . . . The claimant did not
receive further treatment for these impairments until June 2014.” Tr. 145. Also, when
discussing Skaggs’ mental impairments, the ALJ stated “Approximately a year later in
September 2012, the claimant complained of uncontrolled depression . . . There is a large gap in
treatment or even reference to depression problems until June 2014.” Tr. 145. The
Commissioner argues that the ALJ noted gaps in treatment but did not draw a negative inference
from or discount Skaggs’ credibility due to gaps in Skaggs’ treatment, which were due to a lack
of insurance at times. However, considering the ALJ’s repeated focus on gaps in treatment,
without a more complete analysis by the ALJ as to whether and how the ALJ took into account
the reason for gaps in treatment, i.e., lack of insurance, the Court is unable to conclude that the
ALJ did not draw a negative inference from gaps in treatment and/or that the credibility

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assessment is supported by substantial evidence. See SSR 96-7p (“[T]he adjudicator must not
draw any inferences about an individual's symptoms and their functional effects from a failure to
seek or pursue regular medical treatment without first considering any explanations that the
individual may provide, or other information in the case record, that may explain infrequent or
irregular medical visits or failure to seek medical treatment.”).
Additionally, the ALJ discounted Skaggs’ credibility based on her activities of daily
living, concluding that one of her activities of daily living was walking for exercise. Tr. 142.
However, there is no record citation noted by the ALJ to support her conclusion that Skaggs
walks for exercise and the hearing transcript record contradicts the ALJ’s conclusion in this
regard. For example, during the hearing, when Skaggs was asked about her doctor’s exercise
recommendations, she indicated she was unable to take a walk and did not have access to a pool
to try to swim. Tr. 51-52. Additionally, while it is not for this Court to reweigh the evidence,
considering the limitations that Skaggs indicated she had while performing daily activities, e.g.,
needing help doing laundry, usually going to the grocery store with her daughter so she can help
lift items, going out to eat but maybe only once every six months, taking no trips in the last three
years (Tr. 50, 51, 53), the ALJ should have more clearly explained and/or supported her
conclusion that Skaggs leads a “rather active life” and that she is “very social” (Tr. 142). See
e.g., Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 248-249 (6th Cir. 2007) (finding flaws with
the ALJ’s credibility assessment where the ALJ concluded that the claimant was “fairly active”
but did not examine the claimant’s actual ability to perform her daily activities).
The ALJ also discounted Skaggs’ credibility on the basis that her statements were not
supported by objective findings in the record. Tr. 142, 144. However, considering that one of
Skaggs’ severe impairments is fibromyalgia (Tr. 138), the ALJ’s reliance upon a lack of

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objective findings to discount Skaggs’ credibility (Tr. 142, 144) is problematic. As indicated by
the Sixth Circuit, fibromyalgia “is a medical condition marked by ‘chronic diffuse widespread
aching and stiffness of muscles and soft tissues.’” Rogers, 486 F.3d at 244, n.3 (quoting
Stedman's Medical Dictionary for the Health Professions and Nursing at 541 (5th ed. 2005)).
Further, the Sixth Circuit has recognized that fibromyalgia can result in a disability. See, e.g.,
Preston v. Sec’y of Health & Human Servs., 854 F.2d 815, 818 (6th Cir. 1988). Nevertheless,
fibromyalgia presents challenges in the disability analysis because, “unlike medical conditions
that can be confirmed by objective testing, fibromyalgia patients present no objectively alarming
signs.” Rogers, 486 F.3d at 243; see also Swain v. Comm'r of Soc. Sec., 297 F.Supp.2d 986, 990
(N.D. Ohio 2003) (“Fibromyalgia is an ‘elusive’ and ‘mysterious' disease. It has no known cause
and no known cure.”). In other words, objective medical evidence corroborating allegations of
pain caused by fibromyalgia is often nonexistent. See Id. In this regard, the Sixth Circuit has
recognized that, for claims based on fibromyalgia, the cause of the disability is not the
underlying condition itself but, rather, the symptoms associated with the condition -- including
complaints of pain, stiffness, and fatigue. Rogers, 486 F.3d at 247.
For the reasons set forth herein, the Court finds that reversal and remand is warranted
because the ALJ’s reasons for discounting Skaggs’ credibility are unsupported by the record
and/or not sufficiently explained to allow this Court the ability to determine whether the
credibility assessment is supported by substantial evidence. Notwithstanding the Court’s
reversal of the Commissioner’s decision based on a flawed credibility assessment, the Court
notes that, despite the unique nature of the impairment, a “diagnosis of fibromyalgia does not
automatically entitle [a claimant] to disability benefits.” Vance v. Comm‘r of Soc. Sec., 260 Fed.
App'x 801, 806 (6th Cir. 2008). Accordingly, while remand is necessary for a more thorough

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credibility analysis, Skaggs’ diagnosis of fibromyalgia alone does not automatically entitle her to
a finding of disabled on remand.
Skaggs also argues that remand is required because the ALJ did not consider her
impairments in combination. Since a new and more thorough credibility assessment may impact
the disability determination analysis as a whole, the Court declines to address this argument. On
remand, the ALJ shall conduct a more thorough credibility assessment consistent with this
opinion and consider anew all of Skaggs’ impairments, both severe and non-severe, alone and in
combination, and the functional limitations posed by those impairments that are determined to be
supported by the evidence.
VII. Conclusion
For the reasons set forth herein, the Court REVERSES and REMANDS the
Commissioner’s decision for proceedings consistent with this opinion.

Dated: June 15, 2017
Kathleen B. Burke
United States Magistrate Judge

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