Laskowski v. Colvin

Filing 19

ORDER Reversing the Decision of the Commissioner and Remanding for Further Proceedings signed by Judge Charles N Clevert, Jr on 2/21/14. (cc: all counsel)((cef), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF W ISCONSIN

SHARON LASKOW SKI,
Plaintiff,
v.

Case No. 13-C-0304

CAROLYN W . COLVIN,
Acting Commissioner,
Social Security Administration,
Defendant.

ORDER REVERSING THE DECISION OF THE COMMISSIONER
AND REMANDING FOR FURTHER PROCEEDINGS
Sharon Ann Laskowski filed a claim for disability insurance benefits and
supplemental security income alleging an onset date of November 3, 2009.

On her

application, Laskowski listed cervical radiocolopathy and spinal cord decompression;
however, the ALJ concluded she suffered from degenerative joint disease, history of central
stenosis causing spinal cord compression (status post discetomy and fusion) and
depression. (R. 26, 249.) Laskowski’s claim was denied initially and on reconsideration.
She appeared with counsel at the hearing before an ALJ in Madison, W isconsin. (R. 51.)
In a decision dated October 21, 2011, the ALJ concluded that Laskowski was
disabled from November 3, 2009, through December 16, 2010. (R. 32.) Nevertheless, the
ALJ found medical improvement after December 16, 2010, and determined that Laskowski
could perform past relevant work as a production assembler and other work in the national
economy. (R. 35.) The Appeals Council denied review on February 21, 2013, and the
ALJ’s decision became the final decision of the Commissioner. Laskowski seeks judicial

review of the determination that she was not disabled after December 17, 2010. This court
has jurisdiction pursuant to 42 U.S.C. § 405(g).
FACTS
The relevant medical records begin with an October 6, 2006, MRI revealing a bulging
disc at L4-L5 level, with significant disk degeneration. (R. 402.) Additionally, there was
evidence of mild canal stenosis. (Id.) On June 21, 2007, Laskowski visited Dr. Antonio
Yuk, a neurological surgeon, after struggling with “tingling in hands and legs, burning
sensation in the low back, trouble walking because of poor balance,” and “twitch due to
nerves being pinched.” (R. 400.) At that time, she was taking Skelaxin and Vicodin but was
uncertain that the medications were helping. (Id.) Dr. Yuk noted that her reflexes were
increased, and she had prominent Hoffmann’s1 signs in both hands, cross adductors as well
as 4 to 5-feet ankle clonus. Her toes were equivocal, gait was stiff and she was unsteady
on tandem gait. (R. 401.) There was no suggestion of serious neural compromise on the
MRI of the lumbar spine; however, the brain scan showed a single, small lesion of
demyelination in the subcortical region of the left mid parietal lobe. (R. 398.) The MRI of
the cervical spine revealed:
Large disc herniations at C5-6 and C6-7 with severe central spinal stenosis
particularly at C5-6 with compression of the spinal cord at both levels and
focal myelomalacia with the cord at the C5-6 level. Smaller disc herniations
at C3-4 and C4-5 and relatively prominent check ligament posterior to the
odontoid impressing upon the dural sac and slightly displacing the cord
posteriorly without cord entrapment . . . .
(R. 399.)

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Hofffm ann’s sign is an abnorm al reflex found in patients with dam aged pyram idal tracts of the brain.
Flexion of the distal interphalangeal joint of the m iddle finger m akes the thum b of the sam e hand flex and
adduct. Donald Venes, Taber’s Cyclopedic Medical Dictionary (20th ed. 2005).

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On July 24, 2007, Laskowski had an anterior discectomy at C5-6 and C6-7 using
bank bone grafts and an anterior fixation plate. (R. 392.) Dr. Yuk wrote on September 10,
2007, that Lakowski was under his care for “a serious cervical spine problem” without any
recent injury. It was his opinion that inappropriate ergonomics associated with her job could
cause that type of problem in her spine. (R. 344.) Dr. Yuk’s progress notes reveal that
Laskowski was still experiencing some fingertip tingling and numbness, but that it was not
functionally significant. (R. 385.) In addition, she had stiffness around her shoulder blades.
It was Dr. Yuk’s opinion that Laskowski should remain off work but could begin simple
exercises. (Id.)
On September 12, 2007, Dr. Daniel J. O’Rourke of McHenry, Illinois, wrote to the
Officer of W orkers’ Compensation stating that Laskowski had been seeing him for “severe
disc herniations since July 2007.” He explained that Laskowski developed severe neck pain
and bilateral arm pain with some atrophy due to the requirements of her work as a rural mail
carrier.

Dr. O’Rourke also represented that Laskowski was diagnosed with severe

radiculopathy at the C5-6 and C6-7 levels and underwent immediate neurosurgery. (R.
310.)
Similarly, Dr. Yuk wrote to Officer of W orkers’ Compensation on October 3, 2007,
stating that the studies showed some arthritic changes at C5-6 that could be aggravated by
the repetitive stress on her neck while performing work duties. According to Dr. Yuk, at
least two more months of healing was required before he could determine whether
Laskowski was capable of returning to work. (R. 384.)
Dr. Yuk released Laskowski to part-time work with restrictions on December 6, 2007.
(R. 382.) She was still experiencing tingling and needed more physical therapy. (R. 382,

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430.) On December 12, 2007, Laskowski accepted an offer of modified assignment with
the United States Postal Service. (R. 352-353.) However, on January 10, 2008, Dr. Yuk
noted that Laskowski was experiencing increased tingling in her fingers. (R. 383.) X-rays
showed no definite new bone formation at the level of the bone graft. (R. 453.)
By February 14, 2008, Laskowski had increased her work schedule to six hours a
day, six days a week with lifting restrictions. Dr. Yuk opined that she had reached a level
of maximum medical improvement and that her limitations would be permanent. (R. 380.)
Laskowski was next seek by Dr. Yuk on October 16, 2008, at which time she was doing “ok”
with some twitching on the left with neck stiffness. She was positive for Hoffmann’s and Dr.
Yuk recommended conservative treatment for her bulging discs in the lumbar spine. (R.
379.) On November 12, 2008, Dr. Yuk limited Laskowski to lifting less than twenty pounds
and never above shoulder level. (R. 351.)
A July 15, 2009, MRI revealed bilateral moderate facet joint hypertrophy and
artropathy along with a synovial cyst causing minimal impingement in the theacal sac at the
L1-2 level. At L4-5 there was diffuse posterior disc bulge causing minimal impingement on
the thecal sac and L5 nerve roots. (R. 320, 374, 387.)
Dr. Douglas Soat performed a psychological evaluation on November 29, 2010.
Laskowski described the pain in her back which worsened with stress, as well as the neck
stiffness. During the examination, Laskowski cried and reported that she worries constantly.
Laskowski indicated that she feels depressed everyday and referred to herself as “damaged
goods.” Dr. Soat diagnosed a pain disorder associated with psychological factors and
general medical condition, generalized anxiety disorder, major depressive disorder,
recurrent mild severity. He assigned Laskowski a GAF of 60. (R. 463.)

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On July 8, 2011, Laskowski saw Dr. O'Rourke who referred to her pain as "chronic,
severe." (R. 494.) He prescribed Vicodin every six hours. (Id.)
During the September 28, 2011, hearing, Allen Howard, a psychologist, testified as
a medical expert. He classified Laskwoski’s mental impairment as “mood disorder, not
otherwise specified, with symptoms of pessimism, discouragement, frustration, irritability,
and worry.” Moreover, Howard mentioned that it was a reactive disorder to pain, financial
stressors and change to essentially a sedentary lifestyle. (R. 66.) According to Howard,
Laskowski has a mild impairment inasmuch as she remained “independent and self
directed” attending to “her personal and other needs as well as decision making.” (Id.)
In his October 2, 2011, decision, the ALJ found that from November 3, 2009, through
December 16, 2010, Laskowski was unable to perform any past relevant work as a
production assembler or mail carrier inasmuch as she was suffering from the following
sever impairments: degenerative joint disease, history of central stenosis causing spinal
cord compression (status post discectomy and fusion) and depression.

(R. 26-32.)

However, beginning December 17, 2010, Laskowski did not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 32.) Additionally, the
ALJ determined that medical improvement occurred as of December 17, 2010. (R. 33.) In
support, the ALJ cited Dr. Yuk’s notes from March 16, 2011, finding that Laskowski had
“reasonable strength and a steady gait” and that the low back pain was “tolerable.” (R. 33.)
The ALJ found that Laskowski had the residual functional capacity to perform less
that the full range of light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). At
the time of the hearing, she was able to lift and carry 20 pounds occasionally and 10 pounds

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frequently, and was able to sit for six hours and stand or walk for six hours in an eight-hour
day. She was only available for simple repetitive tasks, and able to understand, remember,
and carry out simple instructions. (R. 34.) Although he found that Laskowski’s “medically
determinable impairments could reasonably be expected to produce the alleged symptoms,”
her “statements concerning the intensity, persistence and limiting effects of these symptoms
are not credible beginning December 17, 2010, to the extent they are inconsistent with the
residual functional capacity assessment for the reasons explained below.” (R. 34.) The
ALJ commented that Laskowski was able to manage most of the activities of daily living,
including doing laundry, making meals, making the beds, and light cleaning. (Id.). He
further relied on Dr. Chan’s Physical RFC Assessment and Dr. Musholt’s Mental RFC
Assessment, both dated December 16, 2010. The ALJ afforded Dr. Yuk’s March 2011
opinion “some weight but not controlling weight” because Dr. Yuk did not have recent
objective imaging studies available, performed a limited physical examination, and did not
explain why continuing the limitations put in place more than a
year before remained appropriate. (R. 35.)
STANDARD OF REVIEW
In reviewing the decision of the Commissioner, the court will affirm if the ALJ applied
the correct legal standards and supported his decision with substantial evidence. 42 U.S.C.
§ 405(g); Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011). Substantial evidence is
“evidence a reasonable person would accept as adequate to support the decision.”
Prochaska v. Barnhart, 454 F.3d 731, 734–35 (7th Cir. 2006). The court does not displace
the ALJ's judgment by reconsidering facts or evidence or making credibility determinations.”
Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). Further, a decision denying benefits

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must provide “an accurate and logical bridge” between the evidence and the ALJ’s
conclusion that a claimant is not disabled. Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir.
2012). W hile the ALJ “need not mention every snippet of evidence in the record, the ALJ
must connect the evidence to the conclusion” and “may not ignore entire lines of contrary
evidence.” Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010).
ANALYSIS
Laskowski raises four issues on appeal: (1) the ALJ did not comply with the legal
standards controlling the evaluation of treating source statements with respect to Dr. Yuk;
(2) the ALJ utilized standard boilerplate language widely criticized in this circuit in
determining that her statements were not credible beginning December 17, 2010, to the
extent they were inconsistent with the residual functional capacity set forth in the decision;
(3) the ALJ stated that he assigned “great weight” to the state agency physician’s opinions
but “cherry picked the record” and skipped portions inconsistent with his position; and (4)
the ALJ relied on testimony of his vocational expert but did not properly evaluate contrary
vocational evidence of the record.
The court agrees with Laskwoski that the shortcomings in the analysis require a
remand to allow the ALJ to build the required bridge from the record to the credibility
determination. The ALJ determined that Laskowski’s “statements concerning the intensity,
persistence and limiting effects of these symptoms” were “generally credible” prior to
December 16, 2010, but “not credible beginning December 17, 2010, to the extent they are
inconsistent with the residual functional capacity assessment.” (R. 34.) This is the same
boilerplate language that the Seventh Circuit Court of Appeals repeatedly criticizes because
it suggests that the claimant's ability to work is determined first and then used to determine

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credibility.

Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012).

Indeed, the ALJ

determined that Laskowski’s residual functional capacity increased beginning December 17,
2010, prior to his discussion of her credibility after that date.
Mindful that the court may uphold the credibility finding if the ALJ offers specific
reasons to disbelieve the claimant's testimony, Shideler v. Astrue, 688 F.3d 306, 311–12
(7th Cir. 2012), the “specific reasons” offered by the ALJ are limited to a brief discussion of
Laskowski’s testimony regarding her activities of daily living. An ALJ may consider whether
Laskowski’s daily activities are inconsistent with her alleged inability to work. See SSR
96–8p; Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000). However, he may not ignore
her testimony regarding the limitations on those activities. In his decision, the ALJ wrote:
The claimant’s testimony revealed that she is able to manage most activities
of daily living, including doing laundry, making meals, making the beds, and
light cleaning. She indicated that she sits and watches television and likes to
read a lot. She can drive a car for an hour or two at a time, indicating an
ability to sit for an extended period. She can go out grocery shopping and
walks to get the mail. Her testimony is credible and demonstrates and [sic]
ability to sit or stand for more than 4 to 6 hours in an 8-hour day. Accordingly,
her residual functional capacity has increased.
(R. 35.)
That summary ignores Laskowski’s testimony that she only cooks “occasionally” and
that she is “shot” if she overdoes it with mopping or vacuuming. (R. 60.) Similarly, she
“occasionally” goes out to get the mail and only shops for groceries with her husband.
Laskowski also testified that she still has numbness in her fingertips causing her to drop
things, pain in her neck for which she takes Vicodin, Celebrex, Skelaxin and Ibuprofen.
According to Laskowski, she can sit for twenty or thirty minutes before having to walk

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around or, alternatively, stand for one to two hours. Nevertheless, the ALJ concluded that
she could sit or stand more than 4-6 hours in an 8-hour day.
The ALJ’s determination of Laskowski’s credibility for the period after December 17,
2010, also ignores Laskowski’s written reports. Notably, on July 11, 2010, Laskwoski
described limitations on her household activities. W hile she tries to accomplish daily
chores, she must “rest in between due to pain.” She also wrote that she takes Vicoden and
muscle relaxants daily, but that it is hard to accomplish much due to limitations and neck
and back pain. Laskwoski’s husband and friends help her as needed as the pain severity
varies day to day. (R. 256.) On bad days, she does not get dressed because of pain and
stiffness. (Id.)
Additionally, the September 14, 2010, disability report indicated that Laskowski’s
condition had changed for the worse based on arthritic changes in the cervical vertebrae.
Her neck felt stiff and felt like it was “in a vice.” She could not lift more than ten pounds and
the pain was getting worse. Laskowski wrote that she had a hard time doing the things she
used to do and did not walk well. She was experiencing numbness and tingling in her
fingers, and “could hardly take care of” herself. (R. 271-274.)
By January 11, 2011, Laskwoski reported that there had been no change, and that
her mental health was reduced to single repetitive tasks. Doctors told her that her spine
should not have added pressure because there would be damage at the fusion site.
Moreover, Laskowski reported that her neck pain increased with activity and that she
experienced a decreased range of motion. In addition, she wrote “tingling lower back pain
lift less than ten pounds sit less than 45 minutes typically 30 minutes ambulate- tense, stiff
use hand rails whenever possible.” (R. 277-280.) She added that her house was in

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foreclosure, car repossessed, and her workers’ compensation claim remained pending. (R.
280.)
The ALJ discussed some of these limitations earlier in his decision to support his
finding of disability prior to December 16, 2010, but he did not take these limitations into
consideration when assessing the credibility of Laskowski’s statements concerning the
intensity, persistence and limiting effects of the symptoms after that date. (R. 28, 30.) It
is well established that the administrative law judge “cannot ignore a line of evidence that
suggests a disability.” Bates v. Colvin, 736 F.3d 1093, 1099 (7th Cir. 2013).
Aside from the “cherry picking” of Laskowski’s testimony, the problem with resting
the credibility determination on several selected activities has been explained by the
Seventh Circuit as follows:
[t]he critical differences between activities of daily living and activities in a
full-time job are that a person has more flexibility in scheduling the former
than the latter, can get help from other persons . . . , and is not held to a
minimum standard of performance, as she would be by an employer. The
failure to recognize these differences is a recurrent, and deplorable, feature
of opinions by administrative law judges in social security disability cases.
Bjornson, 671 F.3d at 647. More recently, the Seventh Circuit called it “naiveté” for an ALJ
to “equat[e] household chores to employment” and to “attach[ ] great weight to the
applicant's ability to do laundry, take public transportation, and shop for groceries” in
determining the applicant's credibility. Hughes v. Astrue, 705 F.3d 276, 278 (7th Cir. 2013).
Ultimately, daily activities are just one of the factors to be considered. The seven
factors relevant to a claimant's pain apart from objective medical evidence. 20 C.F.R.
§ 404.1529(c). The ALJ must consider the following: i) a claimant's daily activities; ii) the
location, duration, frequency, and intensity of a claimant's pain or other symptoms;

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iii) precipitating and aggravating factors; iv) the type, dosage, effectiveness, and side effects
of any medication a claimant takes or has taken; v) treatment a claimant received; vi) any
measures a claimant uses or has used to relieve pain or other symptoms; and vii) other
factors concerning a claimant's functional limitations and restrictions due to pain or other
symptoms. 20 C.F.R. § 404.1529(c)(3); Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009).
Here, it is difficult to determine from the ALJ’s decision whether he considered such things
as the intensity or duration of Laskowski’s pain, the dosage, effectiveness or side effects
of her medication, or any measures used to relieve her pain.
The Commissioner insists that no matter how “awkwardly contructed the ‘boilerplate’
statement may be, it is clear that the ALJ did defer making a credibility finding until he had
first decided upon Laskowski’s residual functional capacity.” (Doc. 16 at 10.) However, it
is not clear to this court that the ALJ made the credibility finding first, or otherwise supported
his decision with substantial evidence from the record. Moreover, nowhere in the decision
does the ALJ state how he concluded that medical improvement occurred on or after a
particular date.

W hile the court can speculate that the physical and mental RFC

assessments completed by the state agency consultants led to this inference, both state
agency consultants found Laskowski to be “wholly credible.” (R. 486, 489.) Ultimately, the
ALJ’s decision to find her testimony not credible after December 16, 2010, is so unclear that
this court cannot give it meaningful review. Hence, this is one of those occasions where the
court must disturb the ALJ’s credibility determination.
Because this case has to be remanded, the court urges the ALJ to take the
opportunity to clarify the basis for his decision to assign controlling weight to the opinion of
Laskowski’s treating physician, Dr. Yuk, prior to December 16, 2010, but only “some weight”

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to Dr. Yuk’s opinion after that date. The ALJ must accord the medical opinion of a treating
physician controlling weight if it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with other substantial evidence.”
20 C.F.R. § 404.1527(c)(2). In the decision, the ALJ does not explain how Dr. Yuk’s March
2011 opinion is inconsistent with other substantial evidence. Further, the decision should
“sufficiently account for the factors” set forth in 20 C.F.R. § 404.1527 and build an adequate
bridge from the evidence to the conclusion. Schreiber v. Colvin, 519 F. Appx. 951, 959 (7th
Cir. 2013). The ALJ speculated that Dr. Yuk needed further imaging studies or otherwise
conducted a limited examination, but Dr. Yuk’s examination revealed continuing pain,
Laskowski’s numbness was unchanged, she exhibited prominent Hoffman’s signs, positive
cross adductors and he found no significant change in her overall condition. As Laskowski’s
treating physician over a number of years, Dr. Yuk concluded that there was no need to
change activity level, particularly in light of the “highlighted evidence of myleomalacia on
preoperative MRI.” (R. 492.) Once the ALJ revisits the issues discussed above, he may
heed to reconsider or clarify his approach at steps four and five. Now, therefore,
IT IS ORDERED that the decision of the Commissioner is reversed.
IT IS FURTHER ORDERED that this decision is remanded for further proceedings
pursuant to sentence four of 42 U.S.C. § 405(g).
Dated at Milwaukee, W isconsin, this 21st day of February, 2014.
BY THE COURT
/s/ C.N. Clevert, Jr.
C.N. CLEVERT, JR.
U.S. DISTRICT JUDGE

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