Shankle v. Colvin

Filing 15

ORDER signed by Judge J P Stadtmueller on 11/26/14 that the opinion of the Administrative Law Judge is VACATED and REMANDED for further proceedings consistent with this opinion. See Order. (cc: all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMES ERVIN SHANKLE,
Plaintiff,
v.

Case No. 14-CV-380-JPS

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

ORDER
Defendant.
On February 5, 2013, Administrative Law Judge Carla L. Waters (“the
ALJ”) issued a decision finding that the plaintiff, James Shankle, is not
disabled. (Tr. 11–19). Mr. Shankle requested review of that decision by the
Appeals Council, which denied his request. (Tr. 1–7).
Mr. Shankle’s appeal of the ALJ’s decision is now before the Court.
(Docket #1). The matter is now fully briefed. (Docket #11, #13, #14). Mr.
Shankle raises several arguments, all of which relate to evidentiary issues in
some fashion. The Court will address each issue in turn.
For the most part, the Court will address relevant background
information as part of its legal analysis. But there are two underlying
principles that are extremely important to the outcome of this case:
First,

Mr. Shankle bears the burden of proving his disabling
conditions; and,

Second,

Mr. Shankle must show “that he was disabled on or
before his date last insured,” in this case December 31,

2008,1 as the ALJ determined (Tr. 13) and to which no
party objects.
Allord v. Astrue, 631 F.3d 411, 416 (7th Cir. 2011) (claimant bears burden of
establishing disability on or before date last insured) (citing 42 U.S.C.
§§ 423(a)(1)(A), (c)(1); 20 C.F.R. § 404.1514; Briscoe, 425 F.3d at 351; Howell v.
Sullivan, 950 F.2d 343, 348 (7th Cir. 1991)); 20 C.F.R. §§ 404.110,
404.131–404.132, 404.140 (regulations regarding insured status).
As for the standard of review, the Court must generally defer to the
ALJ’s determinations, and uphold those determinations when they are
supported by “substantial evidence”—meaning “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Elder
v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008) (quoting Skinner v. Astrue, 478 F.3d
836, 841 (7th Cir. 2007) (internal quotation omitted); citing Schmidt v. Astrue,
496 F.3d 833, 841 (7th Cir. 2007)); 42 U.S.C. § 405(g). If, on the other hand, the
ALJ’s determinations were not supported by substantial evidence or the ALJ
failed to “build an accurate and logical bridge between the evidence and the
result,” the Court should overturn his decision. See, e.g., Beardsley v. Colvin,
758 F.3d 834, 837 (7th Cir. 2014) (citing Blakes v. Barnhart, 331 F.3d 565, 569
(7th Cir. 2003); Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001)).
Mr. Shankle first argues that the ALJ erred by relying too heavily on
a lack of ankle and shoulder treatment records to find Mr. Shankle was not
disabled. (See Docket #11 at 10–16). In support, he cites SSR 83-20 and Briscoe,

1

Because Mr. Shankle’s alleged disability was a “slowly progressive
impairment,” the ALJ was tasked with determining “‘the date when it is most
reasonable to conclude from the evidence that the impairment was sufficiently
severe to prevent [Mr. Shankle] from engaging in [substantial gainful activity] for
a continuous period of at least 12 months.’” Briscoe ex rel. Taylor v. Barnhart, 425 F.3d
345, 351 (7th Cir. 2006) (quoting SSR 83-20, 1983 WL 31249, at *2–*3 (Jan. 1, 1983)
(hereinafter, "SSR 83-20")).

425 F.3d at 352–53, in addition to other cases. (See Docket #11 at 12–14 (also
citing Nolen v. Sullivan, 939 F.2d 516, 519–20 (7th Cir. 1991); Lichter v. Bowen,
814 F.2d 430, 434–35 (7th Cir. 1987)). Discussing SSR 83-20, the Seventh
Circuit in Briscoe noted:
Under SSR 83–20, an ALJ must consider three factors when
determining the onset date of disabilities of a nontraumatic
origin: (1) the claimant's alleged onset date; (2) the claimant's
work history; and (3) medical and all other relevant evidence.
The date that the claimant alleges as an onset date should be
the starting point of the analysis, and that date “should be used
if it is consistent with all the evidence available.” The day when
the impairment caused the individual to stop work is also
important. Nevertheless, medical evidence is “the primary
element in the onset determination,” and the date chosen “can
never be inconsistent with the medical evidence of record.”
This does not mean that a claim is doomed for lack of medical
evidence establishing the precise date an impairment became
disabling. In such cases, the ALJ must “infer the onset date
from the medical and other evidence that describe the history
and symptomatology of the disease process” and should seek
the assistance of a medical expert to make this inference.
Where no reasonable inference is possible based on the
available evidence and additional medical evidence is not
available, “it may be necessary to explore other sources of
documentation…from family members, friends, and former
employees to ascertain why medical evidence is not available
for the pertinent period and to furnish additional evidence
regarding the course of the individual's condition.”
Briscoe, 425 F.3d at 353 (internal quotations to SSR 83-20 at *2–*3).
So, while Mr. Shankle’s alleged onset date of no later than
December 31, 2008, is important, it cannot “be inconsistent with the medical
evidence of record.” SSR 83-20 at *3. Accordingly, the ALJ examined the
medical evidence relating to Mr. Shankle’s shoulder and ankle impairments.
As to the shoulder impairments, the ALJ noted that Mr. Shankle first
saw a doctor in October of 2002. (Tr. 15). At that time, Mr. Shankle advised

his doctor that Ibuprofen substantially eased his pain, but he still suffered “a
little bit of weakness and decreased motion.” (Tr. 15). So, at that time, his
doctor told him to continue taking Ibuprofen; further medication or
treatment would be possible if his condition worsened. (Tr. 15–16). From
2003 through the end of 2008—and particularly between June and December
of 2008—Mr. Shankle received at most “only limited treatment for his
shoulder.” (Docket #11 at 10). (See also Tr. 16). In fact, in October of 2010, he
reported that “no doctor had limited him in the amount of weight he could
lift.” (Tr. 16). It seems that, since that time, Mr. Shankle’s shoulder condition
has deteriorated: in December of 2012, at his hearing before the ALJ, Mr.
Shankle testified that he may soon need to receive shoulder surgery. (Tr. 16).
Nevertheless, as already discussed, the ALJ was tasked with determining
whether Mr. Shankle’s disability had onset by the end of December of 2008.
Finding that Mr. Shankle received extremely limited treatment for his
shoulder prior to the end of December of 2008, without explanation for that
lack of treatment, and finding it reasonable to assume the Mr. Shankle would
have sought treatment for his shoulder pain if he experienced ongoing
problems, the ALJ concluded that the evidence did “not support a finding
that his shoulder impairment prevented him from performing work
activities….” (Tr. 16).
The ALJ engaged in a similar analysis regarding Mr. Shankle’s ankle
injury. (Tr. 16–17). Mr. Shankle was injured in a car accident in June of 2008.
(Tr. 16). He thereafter underwent surgery, which was successful. (See Tr. 16).
In the weeks and months following surgery, Mr. Shankle stopped using
crutches, was able to bear weight on his ankle, reported that his ankle felt
good with occasional discomfort, walked with a normal gait in a boot, had
a good range of motion, and appeared to be healing. (Tr. 16). Mr. Shankle did

not receive any further treatment for his ankle between October of 2008 (no
less than four months after the car accident) and July of 2009. (Tr. 16). In July
of 2009, he received an ankle examination, which revealed “advanced
arthrosis,” together with continued swelling and ache in his ankle. (Tr. 16).
Otherwise, his ankle displayed “good overall alignment,” and “could do
what he wanted” on his ankle, limited only by his own pain. (Tr. 16–17). Mr.
Shankle then went another year without ankle treatment. (See Tr. 17). But, in
August of 2010, he reported that his ankle pain had worsened. (Tr. 17).
Testing showed significant issues with his ankle, so Mr. Shankle received
ankle replacement surgery in January of 2011. (Tr. 17). The ALJ
acknowledged that Mr. Shankle’s condition worsened after December of
2008, but found that the evidence would “not support a finding that he was
more limited,” than the ALJ’s RFC determination as of December 31, 2008.
In sum, as to both Mr. Shankle’s shoulder and ankle impairments, the
ALJ acknowledged that the impairments worsened after December 31, 2008.
But, relying on a lack of medical evidence leading up to December 31, 2008,
the ALJ determined that Mr. Shankle was not disabled as of that date.
There are a number of potential problems with this determination.
First, the Court questions whether it was appropriate for the ALJ to rely
solely on the lack of pre-December 31, 2008, treatment records to support her
finding of non-disability. Second, even if that reliance was appropriate, the
Court seriously questions whether the ALJ established the accurate and
logical bridge between that evidence and the result. Third, if there was an
accurate and logical bridge, the Court remains unpersuaded still is not
convinced that there was substantial evidence to support the ALJ’s
determination.

As to the first of those potential problems, the Court begins by
pointing out that “why a claimant failed to undergo treatment is one factor
to consider when assessing an impairment,” and an ALJ may consider gaps
in treatment. Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013) (citing Scheck
v. Barnhart, 357 F.3d 697, 702 (7th Cir. 2005); 20 C.F.R. § 404.1512(c); Bowen v.
Tuckert, 482 U.S. 137, 146 n. 5 (1987)); 20 C.F.R. § 404.1529(c)(3). So, the ALJ’s
mere consideration of Mr. Shankle’s lack of medical treatment is not an error.
But, as Briscoe noted, where it is difficult to make a determination as to the
actual onset date, “the ALJ must ‘infer the onset date from the medical and
other evidence that describe the history and symptomatology of the disease
process’ and should seek the assistance of a medical expert to make this
inference.” 425 F.3d at 353 (quoting SSR 83-20 at *2-*3). Here, the ALJ
attempted to infer the onset date from the medical evidence, alone, without
much inquiry into other evidence—for example, any explanations from Mr.
Shankle for lack of treatment, see, e.g., Murphy v. Colvin, 759 F.3d 811, 816 (7th
Cir. 2014); Pierce v. Colvin, 739 F.3d 1046, 1050 (7th Cir. 2014)—or the
assistance of a medical expert. Under Briscoe, that seems to be an error.
Perhaps the Commissioner could argue that the ALJ did, in fact, rely
on other evidence to reach her conclusion that Mr. Shankle was not disabled
as of December 31, 2008. Indeed, at later points in the brief, the ALJ examined
“additional inconsistencies in the record,” and also the opinions of two state
agency physicians. (Tr. 18). But, the ALJ never draws any connection
between that evidence and her determination that Mr. Shankle was not
disabled as of December 31, 2008. (See Tr. 18). Rather, that determination
appears several paragraphs before and is self-contained in a discussion of the
gaps of Mr. Shankle’s treatment. (Tr. 16–17). Thus, it appears that the ALJ’s

determination of non-disability as of December 31, 2008, was based solely on
the gaps in Mr. Shankle’s treatment.
Second, even if that were not error under Briscoe, the Court still finds
error, because the ALJ did not build an “accurate and logical bridge”
between the evidence and her determination. In reaching her determination,
she relied solely on the mere fact that there was a gap, without any inquiry
into or discussion of reasons for that gap other than noting that Mr. Shankle
had “not explained his failure,” to seek other treatment. (Tr. 17). Moreover,
Mr. Shankle’s shoulder and ankle conditions are degenerative impairments,
which were obviously problematic at some point before December 31,
2008—indeed Mr. Shankle had just received surgery on his ankle after a car
wreck in June of 2008. (See Tr. 16–17). Thus, it would be logical to believe that
Mr. Shankle was unable to perform his previous work on December 31, 2008,
and for 12 months thereafter. But, relying solely on lack of treatment—and
without providing any accurate or logical bridge between that lack, alone,
and the ultimate determination—the ALJ found Mr. Shankle was not
disabled on December 31, 2008.
If the Court were to look at the other evidence cited—additional
inconsistencies and state agency opinions (Tr. 18)—it would likewise find the
lack of an accurate and logical bridge. The ALJ failed to discuss any
connection between that evidence and her ultimate determination that Mr.
Shankle was not disabled as of December 31, 2008.
Third, even if the ALJ had built an accurate and logical bridge, her
determination was not supported by substantial evidence. Lack of treatment,
alone, may be probative of lack of disability, but without more does not
constitute substantial evidence, seeing as lack of treatment alone does not
establish that Mr. Shankle could perform the significant demands of his prior

work—significant standing and walking on an ankle that had recently
received surgery and lifting of 50 pounds with a problematic shoulder. See,
e.g., Murphy, 759 F.3d at 818 (ALJ’s determination was problematic because,
while it relied on medical evidence, it did not “address the legal
requirements one must be able to perform before the ALJ can determine that
the individual is able to do” the type of work at issue). To be sure, the Court
cannot re-weigh the evidence. Powers v. Apfel, 207 F.3d 431, 434 (7th Cir.
2000). Nor must a determination “contain written evaluation of every piece
of evidence.” McKinzey v. Astrue, 641 F.3d 884, 891 (7th Cir. 2011) (quoting
Schmidt v. Barnhardt, 395 F.3d 737, 744 (7th Cir. 2005)). But, here, the ALJ
relied only on an exceedingly indefinite piece of medical evidence. Lack of
treatment for a period of time may show that Mr. Shankle’s condition
worsened, but it does little to show what Mr. Shankle was capable of during
the period in question—especially when considering the fact that the ALJ
was attempting to determine whether Mr. Shankle could perform the
relatively rigorous demands of his previous job.
Even if the Court were to consider the remaining evidence—again, the
additional inconsistencies and medical opinions (Tr. 18), disconnected as they
are from the substance of the ALJ’s opinion—that evidence would not
constitute substantial evidence. The plaintiff’s return to part-time work is of
practically no importance: Mr. Shankle testified, and the ALJ accepted, that
his activity level at that job was minimal. (See Tr. 18). The ALJ also relied on
incorrect information regarding Mr. Shankle’s alleged side business of
rehabbing homes (he, in fact, was a volunteer and did nothing more than
supervise). (Tr. 18). Finally, the ALJ looked significantly at Mr. Shankle’s
activities of daily living, an area the Seventh Circuit has repeatedly pointed
out as one of concern, see, e.g., Hughes v. Astrue, No. 12-1873 at 5–6 (7th Cir.

2013), but did not delve very deeply into them to determine their relevance
to Mr. Shankle’s ability to perform the significant requirements of his past
work. (Tr. 18). For example, the ALJ pointed out that Mr. Shankle reported
attending sporting events, going fishing, going hunting, and cleaning his
eight fish tanks. (Tr. 18). But any of those activities could be performed in a
sedentary manner, and the ALJ did not inquire into any of them to determine
their actual evidentiary value to Mr. Shankle’s claims. Meanwhile, one of the
medical opinions “was offered without the benefit of the entire record,
specifically, the claimant’s hearing testimony,” so the ALJ did not accept a
portion of it. (Tr.18). And the ALJ hardly provided any discussion of the
remaining medical opinion and how it would support her conclusion, stating
that the record does not contain medical statements contradicting it, but not
discussing its relation to any of the other evidence. (Tr. 18). In sum, even
accepting all of the offered evidence together, in spite of the lack of relation
back to the ALJ’s ultimate determination (see Tr. 16–18), that evidence is not
“substantial evidence,” and does not support the ALJ’s decision.
For these reasons—over-reliance on gaps in treatment, failure to build
an accurate and logical bridge, and failure to base her determination on
substantial evidence—the Court is obliged to find that the ALJ’s
determination was in error.
The Court has already found that the ALJ erred in her non-disability
determination, and so need not consider Mr. Shankle’s remaining arguments,
regarding the ALJ’s alleged failure to consider the combination of his
impairments and reliance on vocational expert testimony. Suffice it to say
that it appears that the ALJ made her non-disability determinations entirely
separate from one another, meaning that she did not consider the combined
effect of the impairments. She did note that “the obesity, by itself or in

combination with any other impairment,” would not prevent the defendant’s
work. But, similar language regarding combined effects did not appear in the
discussion of Mr. Shankle’s other impairments. Meanwhile, the vocational
expert’s testimony failed to account for certain requirements of the
defendant’s past work. Thus, while the Court need not reach those issues to
find error in this case, they would likely form a separate basis for relief.
The Court ends by pointing out that, as appears from its research, the
Seventh Circuit has considered 24 social security appeals this year; of those,
it has found error in the ALJ’s decision in 18, a remarkable 75% reversal rate.
See, e.g., Dean v. Colvin, No. 13-3627, 2014 WL 4723624 (7th Cir. Sept. 24, 2014)
(affirming ALJ decision); Browning v. Colvin, No. 13-3836, 2014 WL 4370648
(7th Cir. Sept. 4, 2014); Scrogham v. Colvin, No. 13-3601, 2014 WL 4211051 (7th
Cir. Aug. 27, 2014); Goins v. Colvin, No. 13-3729, 2014 WL 4073108 (7th Cir.
Aug. 19, 2014); Moon v. Colvin, No. 13-3636, 2014 WL 3956762 (7th Cir. Aug.
14, 2014); Boley v. Colvin, No. 13-1252, 2014 WL 3810999 (7th Cir. Aug. 4,
2014); Thompson v. Colvin, No. 13-3531, 2014 WL 3805470 (7th Cir. Aug. 4,
2014) (affirming ALJ decision); Hanson v. Colvin, No. 13-3473, 2014 WL
3732910 (7th Cir. July 30, 2014); Murphy v. Colvin, No. 13-3154, 2014 WL
358620 (7th Cir. July 22, 2014); Warren v. Colvin, 565 F. App’x 540 (7th Cir.
2014); Beardsley, 758 F.3d 834; Yurt v. Colvin, 758 F.3d 850 (7th Cir. 2014);
Williams v. Colvin, 757 F.3d 610 (7th Cir. 2014); Sambrooks v. Colvin, 566 F.
App’x 506 (7th Cir. 2014); Carter v. Colvin, 556 F. App’x 523 (7th Cir. 2014)
(affirming ALJ decision); Donnelly v. Colvin, 561 F. App’x 524 (7th Cir. 2014)
(affirming ALJ decision); DeGrazio v. Colvin, 558 F. App’x 649 (7th Cir. 2014);
Brassai v. Colvin, 558 F. App’x 673 (7th Cir. 2014); Thomas v. Colvin, 745 F.3d
802 (7th Cir. 2014); Moore v. Colvin, 743 1118 (7th Cir. 2014); Ronning v. Colvin,
555 F. App’x 619 (7th Cir. 2014) (affirming ALJ decision); Hoyt v. Colvin, 553

F. App’x 625 (7th Cir. 2014); Olsen v. Colvin, 551 F. App’x 868 (7th Cir. 2014)
(affirming ALJ decision); Pierce v. Colvin, 739 F.3d 1046 (7th Cir. 2014). The
Court makes this observation only to provide context for its decision: Mr.
Shankle may ultimately be found not disabled, but given the backdrop of the
case law, which is ballooning and seeming to grow increasingly claimantfriendly, the Court is obliged to find that Mr. Shankle was not provided with
the proper consideration that he was due. The ALJ’s determination was in
error. Thus, the Court must now remand the case.
Accordingly,
IT IS ORDERED that the opinion of the ALJ be and the same is
hereby VACATED and REMANDED for further proceedings consistent
with this opinion.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 26th day of November, 2014.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge