Clay v. Colvin

Filing 25

ORDER signed by Judge Rudolph T. Randa on 12/1/2015 REVERSING Commissioner of Social Security's denial of benefits and REMANDING CASE to Commissioner with instructions to calculate and award benefits. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LISA CLAY,
Plaintiff,
-vs-

Case No. 15-C-269

CAROLYN COLVIN, Acting
Commissioner of Social Security,
Defendant.
DECISION AND ORDER
Lisa Clay appeals the denial of her application for Social Security
Disability benefits. The Administrative Law Judge found that Clay has the
following severe impairments: degenerative disc disease of the lumbar spine
status-post decompression and fusion, asthma, right shoulder rotator cuff
tear, obesity, bilateral knee osteoarthritis, and cervical myelopathy statuspost decompression. Despite these impairments, the ALJ found that Clay was
not disabled because she had the residual functional capacity to perform a
range of sedentary work.
On review, the ALJ’s findings of fact are conclusive and must be upheld
“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.
Clay argues that the ALJ did not inform the Vocational Expert of all of
Clay’s medically-supported limitations. For example, the record in this case
reflects extended hospital stints for back surgery and shoulder surgery, but
the limitation for lengthy absences was not incorporated into the RFC. This
was error because RFC is “the individual’s maximum remaining ability to do
sustained work activities in an ordinary work setting on a regular and
continuing basis, …” SSR 96-8p. “Regular and continuing” means a typical
workweek in full-time employment: 8 hours a day, 5 days a week. Thus, it was
error not to inform the VE that Clay would be limited in that regard. Murphy
v. Colvin, 759 F.3d 811 (7th Cir. 2014) (“We require the VE to know about a
claimant’s limitations so that the VE does not refer to work that the claimant
is not capable of undertaking”).1
Clay also argues that the ALJ’s credibility finding was erroneous.
Courts defer to a credibility finding that is not patently wrong, but an ALJ
still must competently explain an adverse-credibility finding with specific
reasons supported by the record. Engstrand v. Colvin, 788 F.3d 655, 660 (7th
Cir. 2015).

The Commissioner incorrectly argues that Clay’s impairments did not meet the
12-month duration requirement. See 20 C.F.R. § 404.1509. The duration requirement is
encompassed by the ALJ’s finding at step two. 20 C.F.R. § 404.1520(a)(ii) (“If you do not
have a severe medically determinable physical or mental impairment that meets the
duration requirement in § 404.1509, … we will find that you are not disabled”).
1

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The ALJ found that Clay’s statements about the “intensity, persistence
and limiting effects” of her symptoms were “not entirely credible.” R. 29. The
ALJ reasoned that the record did not contain a medical opinion stating that
Clay is unable to work. The absence of such an opinion is not surprising since
Clay stopped working in 2011. Moreover, the Commissioner concedes that a
“can’t work” opinion is not required and would not be determinative of
disability. The ALJ also noted that the severity of Clay’s impairments is not
supported by medical records. This is an insufficient reason to reject Clay’s
testimony because allegations of pain do not have to be supported by objective
evidence. Adaire v. Colvin, 778 F.3d 685, 687 (7th Cir. 2015); SSR 96-7p(4)
(“an individual’s statements about the intensity and persistence of pain or
other symptoms or about the effect the symptoms have on his or her ability to
work may not be disregarded solely because they are not substantiated by
objective medical evidence”). Finally, the ALJ observed that Clay’s prescribed
treatment improved her condition. For example, the ALJ cited a treatment
note from March of 2012 that Clay’s gait appeared improved, but in the next
sentence, the ALJ explained that Clay underwent spinal fusion surgery two
months later. R. 31. Accordingly, the record flatly contradicts the ALJ’s
statement that Clay’s condition improved with treatment.
There are more errors, but it is not necessary to address them because
Clay is entitled to a remand with instructions to calculate and award benefits.

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Such an order is appropriate only if all factual issues involved in the
entitlement determination have been resolved and the resulting record
supports only one conclusion – that the applicant qualifies for disability
benefits. Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011). The record, as
summarized over five single-spaced pages in the ALJ’s decision, reveals at
least 30 medical appointments for diagnosis and treatment, a 16-day hospital
stay for two surgeries and follow-up therapy, plus at least 14 therapy sessions,
all of which occurred during a 16-month period between the onset date of
September 2, 2011 and January 2013. Thus, the record clearly reflects Clay’s
inability to work on a regular and continuing basis.
The Commissioner’s denial of benefits is REVERSED, and this matter
is REMANDED with instructions to calculate and award benefits.
Dated at Milwaukee, Wisconsin, this 1st day of December, 2015.

SO ORDERED:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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