Deutsch v. Commissioner of Social Security

Filing 16

ORDER signed by Judge J P Stadtmueller on 3/30/16 that the opinion of the Administrative Law Judge is VACATED and this matter REMANDED for further proceedings consistent with this Order. See Order. (cc: all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL FRANCIS DEUTSCH,
Plaintiff,

Case No. 15-CV-874-JPS

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

ORDER

Michael Deutsch applied for disability insurance benefits (“DIB”) on
June 21, 2012. (See, e.g., Docket #14 (“Tr.”) 19). His claim was denied initially
and on reconsideration, so he requested a hearing before an Administrative
Law Judge (“ALJ”). (Tr. 19) On December 4, 2014, Mr. Deutsch appeared
before ALJ Timothy Malloy for that hearing. (See, e.g., Tr. at 38–69 (transcript
of hearing)). Both Mr. Deutsch and vocational expert (“VE”) Leslie
Goldsmith testified at the hearing. (Tr. at 38–69) Following the hearing, the
ALJ issued a decision finding that Mr. Deutsch had the residual functional
capacity (“RFC”) to perform light work, with some minor additional
limitations. (E.g. Tr. at 22–25). The ALJ, therefore, determined that Mr.
Deutsch could perform his past relevant work as “director of
supply/purchasing agent, plant manager/production manager, and online
sales rep as generally performed.” (Tr. at 25–26). Mr. Deutsch requested
review of that decision with the Social Security Appeals Council, but it
denied that request. (E.g. Tr. at 1–6). Accordingly, Mr. Deutsch appealed the
ALJ’s decision by filing this case. (Docket #1). The matter is fully briefed
(Docket #11; #13; #15), and the Court will now decide it.

1.

MR. DEUTSCH’S ARGUMENTS
The Court begins by discussing Mr. Deutsch’s arguments in favor of

reversal of the ALJ’s decision. Broadly stated, Mr. Deutsch made three
separate arguments in his opening brief:
(1)

that the ALJ erred in finding that Mr. Deutsch could perform
his past relevant work because, even assuming the ALJ’s RFC
determination was correct, that RFC determination would have
precluded Mr. Deutsch’s ability to perform his past relevant
work (Docket #11 at 4–6);

(2)

that the ALJ erred in reaching his RFC determination because
he did not adequately consider an opinion from Mr. Deutsch’s
treating specialist (id. at 6–17); and

(3)

that the ALJ erred in reaching his RFC determination because
he did not properly assess Mr. Deutsch’s pain complaints (id.
at 17–22).

Mr. Deutsch has since abandoned the first of those arguments. (Docket #15
at 1 n.1 (“Upon further reflection, Plaintiff withdraws his assignment of error
with respect to the ALJ’s step 4 [past relevant work] finding. See Pl.’s Brief,
pp. 4-6.”)). That leaves only the second and third arguments—both asserting
that the ALJ erred in reaching his RFC determination—for decision, here.
2.

ANALYSIS
The Court will address each of Mr. Deutsch’s arguments in turn,

providing relevant factual information as necessary.
2.1

Consideration of Treating Specialist’s Opinion

Mr. Deutsch first argues that the ALJ improperly discounted the
opinion of Oscar Wille, M.D., a pain management specialist who treated Mr.
Deutsch. (See Docket #11 at 6–17). In addressing that argument, the Court
will describe the ALJ’s actual statements regarding Dr. Wille’s opinion, then

Page 2 of 19

provide the standard applicable on review, and finally apply that standard
to the ALJ’s statements.
2.1.1

The ALJ’s Statements Regarding Dr. Wille’s Opinion

The ALJ summarized Dr. Wille’s findings and discounted them as
follows:
The undersigned has also considered the medical source
statement dated August 1, 2013, from Dr. Wille, the claimant’s
pain management physician, who indicated that he had seen
the claimant on three occasions for chronic low back pain and
lumbar spondylosis. It was his opinion that the claimant had
significant limitations, including a limitation to sitting up to 30
minutes and standing up to 20 minutes continuously and that
in an 8-hour day, the claimant could sit 4 to 6 hours and
stand/walk less than 2 hours. It was also his opinion that the
claimant could lift and carry less than 10 pounds frequently, 10
pounds occasionally, and 20 pounds rarely, that he was limited
to rare occasional twisting and stooping (bending), and that he
would be absent four days per month. He stated that the
claimant’s pain flares depended on required pace of work
(Exhibit 13F). The undersigned gives this opinion little weight,
as these limitations are inconsistent with objective finding[s] in
the record, including Dr. Wil[l]e’s own treatment notes which,
as detailed above, show minimal objective findings at most. In
addition, there is no objective evidence of any difficulties with
standing or walking, and examinations have consistently
documented that the claimant had normal gait and station
(Exhibits 5F, 8F-10F, 12F, and 14F). Further, as Dr. Wille noted,
at the time of this assessment, he had seen the claimant on only
three occasions and, as such, had not yet established a long
treating relationship with the claimant.
(Tr. 24–25). The ALJ then went on to point out that Dr. Wille’s opinion was
also inconsistent with Mr. Deutsch’s own reported activities. (Tr. 25).
2.1.2

Applicable Standard of Review

Generally speaking, the ALJ was required to give Dr. Wille’s opinion
controlling weight unless he determined that Dr. Wille’s opinion “is
Page 3 of 19

‘inconsistent with the other substantial evidence.’” Loveless v. Colvin, 810 F.3d
502, 507 (7th Cir. 2016)1 (quoting 20 C.F.R. § 404.1527(c)(2); citing Scott v.
Astrue, 647 F.3d 734, 739 (7th Cir. 2011); Campbell v. Astrue, 627 F.3d 299, 306
(7th Cir. 2010)). The Seventh Circuit has “defined ‘substantial evidence’ as
‘such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Stepp v. Colvin, 795 F.3d 711, 718 (7th Cir. 2015) (citing
Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008)).
Furthermore, even where an ALJ does not give a treating sources
opinion as controlling (as appears to be the case for Dr. Wille’s opinion here),
the ALJ is still required to determine how much weight to give the opinion,
applying several factors:
(1)

the length and frequency of Mr. Deutsch’s treatment
relationship with Dr. Wille;

(2)

the nature and extent of that treatment relationship;

(3)

the amount of relevant evidence supporting Dr. Wille’s
opinion;

(4)

the consistency of that opinion with the record as a whole;

(5)

whether Dr. Wille specialized in the medical issues pertaining
to his opinion; and

(6)

any other factors that come to the ALJ’s attention.

1

In Loveless, the Seventh Circuit made clear that neither a complainant’s
subjective complaints nor a doctor’s opinion about a claimant’s ability to work
should be treated as a medical opinion simply because they are included in medical
records. 810 F.3d at 507 (citing 20 C.F.R. §§ 404.1527(c)(3), 404.1527(d)(1),
404.1528(a); Bates v. Colvin, 736 F.3d 1093, 1100 (7th Cir. 2013); Filus v. Astrue, 694
F.3d 863, 868 (7th Cir. 2012); Johansen v. Barnhart, 314 F.3d 283, 287–88 (7th Cir.
2002)). Dr. Wille’s opinion does not fall into either of those categories (nor does the
Commissioner argue that it does).

Page 4 of 19

20 C.F.R. § 404.1527(c)(2–6). See also Scrogham v. Colvin, 765 F.3d 685, 697 (7th
Cir. 2014) (“Even when an ALJ decides not to give controlling weight to a
treating physician’s opinion, the ALJ is not permitted to simply discard it,”
but must instead “consider certain factors in order to decide how much
weight to give the opinion…”); Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir.
2010) (requiring “good reasons” for discounting a treating physician’s
opinion) (quoting Larson v. Astrue, 615 F.3d 744, 749 (7th Cir. 2010)). The
Seventh Circuit has stated that it will “uphold ‘all but the most patently
erroneous reasons for discounting a treating physician’s assessment.’” Stepp
v. Colvin, 795 F.3d 711, 718 (7th Cir. 2015) (quoting Luster v. Astrue, 358 Fed.
App’x 738, 740 (7th Cir. 2010); citing Dixon v. Massanari, 270 F.3d 1171, 1177
(7th Cir. 2001)). However, it is clear that, if the ALJ had entirely failed to
consider the factors, this Court would be required to find harmful error and
to remand the case for a new hearing. See Scrogham, 765 F.3d at 697 & n.8
(reversing where ALJ failed to discuss 20 C.F.R. § 404.1527(c) factors).
2.1.3

Application of Standard to ALJ’s Decision

There are two questions that the Court must answer regarding the
ALJ’s decision to discount Dr. Wille’s opinion. First, the Court must answer
whether Dr. Wille’s opinion was, in fact, inconsistent with the other
substantial evidence, such that the ALJ’s decision not to accord it controlling
weight was appropriate. See, e.g., Loveless, 810 F.3d at 507. If the answer to
that question is “no,” then the Court would be obliged to reverse the ALJ’s
decision. If, on the other hand, the answer to that question is “yes,” then the
Court must go on to answer the second question. The second question is
whether the ALJ appropriately applied the six factors listed in 20 C.F.R.
§ 404.1527(c)(2–6) in determining the amount of weight to give Dr. Wille’s
opinion. See Scrogham, 765 F.3d at 697.
Page 5 of 19

The best answer to the first question is, unfortunately, “maybe.” In
deciding not to give Dr. Wille’s opinion controlling weight, the ALJ stated,
“[t]he undersigned gives this opinion little weight, as these limitations are
inconsistent with objective finding[s] in the record, including Dr. Wil[l]e’s
own treatment notes which, as detailed above, show minimal objective
findings at most.” Unfortunately, the ALJ did not provide much analysis to
reach that conclusion; it seems to beg at least one question: which objective
findings are Dr. Wille’s reported limits inconsistent with? To be sure, the ALJ
provided an extensive run-down of the medical evidence. (Tr. 22–24). But the
ALJ never provides any analysis to connect all of that evidence to his
conclusion that Dr. Wille’s findings were inconsistent with objective findings
in the record. (See Tr. 24–25).2 Yet, if the Court goes looking for substantial
evidence that Dr. Wille’s report is inconsistent with, it might be able to find
it, at least in the opinions of the state agency medical consultants, who found
Mr. Deutsch was more capable than Dr. Wille had opined. (See, e.g. Tr. 71–78,
80–89). And the Seventh Circuit, albeit in an unpublished order, recently
stated that a treating specialist’s opinion “may be discounted if internally

2

The Commissioner tries to provide the analysis. (See, e.g., Docket #13 at 20
(arguing that ALJ found Dr. Wille’s opinion was “not well-supported by clinical
signs and laboratory findings.”), 21 (arguing that ALJ cited evidence showing that
Mr. Deutsch did not have major issues with movement and “[i]t stands to reason
that, were Plaintiff unable to walk more than 2 blocks without pain or resting, that
there would be some evidence of this on clinical examination.”), 22 (noting that
doctors reported mild changes, that Mr. Deutsch performed daily activities, and
that the state agency physicians generally found less limitations than Dr. Wille
had)). But the Court is concerned that this is the sort of post-hoc rationale that the
Seventh Circuit has previously criticized. See Pierce v. Colvin, 739 F.3d 1046, 1050
(7th Cir. 2014) (citing SEC v. Chenery Corp., 318 U.S. 80, 87–88 (1943); Stewart v.
Astrue, 561 F.3d 679, 684 (7th Cir.2009)); but see Wyatt v. Astrue, No. 11-CV-874, 2012
2358149, *7 (S.D. Ind. June 20, 2012) (cited by the Commissioner for the proposition
that harmless error analysis is exception to Chenery doctrine).

Page 6 of 19

inconsistent or inconsistent with a consultant’s opinion.” Lazier v. Colvin, 601
F. App’x 442, 446 (7th Cir. 2015) (citing Schmidt v. Astrue, 496 F.3d 833, 842
(7th Cir. 2007)). Applying that standard, the Court can find that the ALJ
identified an internal inconsistency and an inconsistency with the state
consultants’ opinions,3 thus allowing him to decline controlling weight.
But that simply brings the Court to the second question—whether the
ALJ applied the six factors from 20 C.F.R. § 404.1527(c)(2–6) in determining
how much weight to give Dr. Wille’s opinion—and the Court does not
believe that the ALJ fully analyzed each of those factors.
To be sure, the ALJ did, at least implicitly, consider most of the factors.
As best the Court can tell, the ALJ identified the following reasons for giving
Dr. Wille’s opinion “little weight”:
(1)

the lack of objective findings in Dr. Wille’s opinion;

(2)

the general lack of objective evidence “of any difficulties with
standing or walking,” together with the fact that “examinations
have consistently documented that the claimant had normal
gait and station (Exhibits 5F, 8F-10F, 12F, and 14F).”

(3)

the fact that Dr. Wille had seen Mr. Deutsch on only three
occasions at the time he issued his opinion, and thus had a
limited relationship with Mr. Deutsch at that time; and

(4)

the ALJ’s belief that Dr. Wille’s limitations were inconsistent
with Mr. Deutsch’s reported activities.

3

In truth, both the internal and external inconsistencies are minor.
Internally, the Court could possibly even explain the inconsistency away. The ALJ
stated that the report was internally inconsistent, because it called for major
limitations in spite of minor objective findings. (Tr. 24). But Dr. Wille did find that
Mr. Deutsch exhibited a “Pain Disorder” (Tr. 471), which might have influenced Dr.
Wille’s opinion that Mr. Deutsch would have difficulty working. And, in terms of
external inconsistency, Dr. Wille’s opinion was not significantly different than the
agency consultants’. (Compare Tr. 471–73 with Tr. 71–78, 80–89).

Page 7 of 19

(See, e.g., Tr. 24–25). The third reason—the limited treating relationship—
satisfies the first two factors from 20 C.F.R. § 404.1527(c)(2)(i–ii), both of
which relate to the length and extent of the treating relationship. The first
reason—lack of objective findings in Dr. Wille’s opinion—arguably satisfies
the third factor from 20 C.F.R. § 404.1527(c)(3), which relates to the
“supportability” of the opinion. And the second and third reasons,
meanwhile, address the fourth factor from 20 C.F.R. § 404.1527(c)(4), which
relates to the consistency of reports with other evidence in the record.4
But that still leaves one other factor unaddressed: the potential
additional weight due to Dr. Wille’s opinion by virtue of Dr. Wille’s
specialization in pain treatment, see 20 C.F.R. § 404.1527(c)(5).5 The
Commissioner argues that the ALJ did, in fact, address that factor simply in
acknowledging that Dr. Wille was a pain specialist. (Docket #13 at 22–23). In
this Court’s opinion, there is a difference between acknowledging a doctor’s
specialty and actually considering that specialty when deciding how much
weight to give that doctor’s opinion.
The Court believes that the ALJ’s failure to analyze that one factor is
likely sufficient to warrant remand. See, e.g., Scrogham, 765 F.3d at 701 (“The
ALJ, however, did not discuss any of these factors in her opinion, so we
cannot assess whether she appropriately chose not to give much weight to
the treating physicians’ opinions.”) & n.48 (“We cannot say that the failure
to consider these factors is harmless; we have acknowledged their

4

As the Court will discuss further in Section 2.2.3, infra, it highly doubts that
the ALJ’s discussion of Mr. Deutsch’s daily activities are inconsistent with Dr.
Wille’s or Mr. Deutsch’s own assessments of Mr. Deutsch’s pain and abilities.
5

Because the ALJ did not identify any “other factors,” see 20 C.F.R.
§ 404.1527, the Court will ignore that provision.

Page 8 of 19

significance in many of our prior cases.”) (citing Elder, 529 F.3d at 415; Amax
Coal Co. v. Franklin, 957 F.2d 355, 359 (7th Cir. 1992); Allen v. Weinberger, 552
F.2d 781, 785 (7th Cir.1977); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 244
(6th Cir. 2007)). Granted, both Scrogham and Elder deal with situations with
practically no discussion of the factors, but given the significance of each
factor, in this Court’s estimation, the failure to consider even one factor is
potentially problematic. For instance, what if Dr. Wille’s specialization might
have played a role in his failure to provide more objective findings in his
opinion; a pain specialist might understand that pain does not always come
with objective findings. Cf. Stark v. Colvin, --- F.3d ----, No. 15-2352, 2016 WL
698255, *3 (7th Cir. Feb. 22, 2016) (“[t]estimony of severe pain cannot be
disregarded simply because it is not supported by objective medical
evidence.”) (citations omitted).
In any event, whether or not this error justifies remand, the Court is
obliged to remand on the separate and sufficient basis of the ALJ’s credibility
determination. On remand, if the ALJ declines to extend controlling weight
to Dr. Wille’s opinion, the ALJ should ensure that he or she considers every
factor described in 20 C.F.R. § 404.1527(c)(2–6) to determine how much
weight to give to Dr. Wille’s opinion.
2.2

Credibility Determination

Mr. Deutsch also argues that the ALJ improperly discounted the
credibility of Mr. Deutsch’s reports of pain. (See Docket #11 at 17–22). The
Court will again provide the ALJ’s statement, the legal standard, and then
apply that standard.
2.2.1

The ALJ’s Credibility Determination

The ALJ largely discounted Mr. Deutsch’s credibility. In doing so, the
ALJ wrote the following:
Page 9 of 19

After careful consideration of the evidence, the undersigned
finds that the claimant’s medically determinable impairment
could reasonably be expected to cause the alleged symptoms;
however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not
entirely credible for the reasons explained in this decision.
The claimant has alleged the inability to work due to back and
knee problems and pain (Exhibit 3E). He also reported that,
because of these impairments, in an 8-hour day he could sit
only 3 to 5 hours, stand 1 to 2 hours, and walk ½ hour (Exhibit
12E). The medical evidence of record establishes that the
claimant has been diagnosed with lumbar facet degenerative
joint disease and mild bilateral knee degenerative joint disease.
However, the alleged severity of the claimant’s symptoms and
functional limitations is not substantiated by the medical
evidence of record. For example, as detailed above, results of
objective medical testing and physical examinations have
shown only minimal findings at most, and are not very
impressive given his reported level of pain. X-rays and MRIs
have not shown severe pathology and physical examinations
do not support marked limitations. Further, the claimant has
only been treated conservatively and there is no evidence that
surgery has been recommended or is currently being
considered. In addition, the record documents that the
claimant has not always followed through with recommended
treatment. Although the undersigned acknowledges that the
claimant has been unable to do some things due to financial
considerations and lack of insurance during at least part of
[the] time since his alleged onset date, he has not always
followed through with recommendations that were within his
control, such as stopping smoking and becoming more active
(1F, 2F, 4F, 5F, 7F–12F, 14F), which does not reflect favorably
on his credibility.
(Tr. 24). Elsewhere in his decision, the ALJ had a bit more to say about Mr.
Deutsch’s credibility:

Page 10 of 19

Such significant limitations[6] are also inconsistent with the
claimant’s reported activities. In spite of his impairments, he
has remained fairly active. For example, he reported that he is
able to cook, do light cleaning, do laundry, mow the lawn,
garden, walk, drive, shop, read, exercise, care for his pets, and
care for his personal needs (Exhibits 7E, 12E, testimony).
Interestingly, the claimant has also had some inconsistencies in
his reports. For example, on a physical therapy evaluation on
February 6, 2013, the claimant reported that he had previously
had injections that did not help (Exhibit 7F/2). However,
treatment notes following the lumbar facet injections in 2008
show that he reported 80% relief in his pain (Exhibit 1F/5, 7).
These statements are somewhat inconsistent and undermine
the credibility of his allegations, making him only partially
credible.
(Tr. 25). In short, as best the Court can tell, the ALJ based his credibility
finding on four separate parts:
(1)

the inconsistency of Mr. Deutsch’s reports of pain with
objective medical evidence;

(2)

Mr. Deutsch’s minor failures to follow through with
recommended treatment;

(3)

Mr. Deutsch’s ability to perform household chores and care for
himself; and

(4)

a single minor difference between two statements regarding
the effectiveness of injections that Mr. Deutsch.

(See, e.g., Tr. 24–25). The Court also notes that the ALJ did not mention Mr.
Deutsch’s extensive past work history in reaching a credibility determination.
(See, e.g., Tr. 24–25).

6

Presumably, the ALJ is discussing limitations as suggested by Dr. Wille
and/or Mr. Deutsch, himself, although this is somewhat unclear.

Page 11 of 19

2.2.2

Applicable Standard of Review

This Court is required to accept the ALJ’s credibility finding unless it
is “patently wrong.” See, e.g., Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir.
2013).7 However, several Seventh Circuit decisions restrict the evidence that
an ALJ can permissibly use to reach a credibility determination, and those
restrictions are important to this case.
First, the Seventh Circuit has made clear that the “meaningless
boilerplate” statement that all ALJs make in issuing a credibility
determination—the long sentence that begins “[a]fter careful consideration
of the evidence…”—cannot, itself sustain a credibility finding. See, e.g.,
Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012); Martinez v. Astrue, 630
F.3d 693, 696 (7th Cir. 2011); Parker v. Astrue, 597 F.3d 920, 921–22 (7th Cir.

7

The parties spend a great deal of time disputing whether the “patently
wrong” standard is the one that actually applies. The Court notes, however, that as
recently as February 4, 2016, the Seventh Circuit has expressly endorsed the
“patently wrong” standard (albeit, in an unpublished opinion). Summers v. Colvin,
--- F. App’x ----, No. 15-1819, 2016 WL 423711, at *2 (7th Cir. Feb. 4, 2016) (citing
Pepper, 712 F.3d at 367). See also Stark, 2016 WL 698255, at *3 (implicitly applying
“patently wrong” standard: “We agree with Stark that the ALJ’s finding that Stark’s
own testimony supports the [RFC] assessment is patently wrong.”). The Court,
however, certainly acknowledges that in many cases, the Seventh Circuit does not
explicitly discuss the “patently wrong” standard; a review of opinion from the first
several months of this year, alone, reveals several that fall into this category. See,
e.g., Dimmett v. Colvin, --- F.3d ----, No. 15-2233, 2016 WL 946628, at *3 (7th Cir.
Mar. 14, 2016) (briefly criticizing credibility finding without discussing “patently
wrong” standard); Stage v. Colvin, --- F.3d ----, No. 15-1837, 2016 WL 492333, at *5
(7th Cir. Feb. 9, 2016) (finding that ALJ relied on “improper grounds” to reach
credibility determination, but not that the determination was “patently wrong”);
Loveless, 810 F.3d at 507–08. Given that fact, coupled with the rate at which the
Seventh Circuit criticized ALJ credibility determinations, the Court can understand
why Mr. Deutsch might believe that some lower standard is applicable. The Court
will, nonetheless, apply the “patently wrong” standard, because that standard still
appears to be operational. See, e.g., Stark, 2016 WL 698255, at *3; Summers, 2016 WL
423711, at *2.

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2010). Use of that boilerplate language, though, is not “automatically ground
for remand,” as long as the ALJ separately supports his credibility
determination. Stark, 2016 WL 698255, at *4 (citing Murphy v. Colvin, 759, F.3d
811, 816 (7th Cir. 2014)). Nonetheless, as far as this Court can tell, it can
largely disregard the boilerplate language in evaluating the ALJ’s credibility
determination.
Second, the Seventh Circuit has made clear that “[t]estimony of severe
pain cannot be disregarded simply because it is not supported by objective
medical evidence.” Stark, 2016 WL 698255, at *3 (citing Hall v. Colvin, 778 F.3d
688, 691 (7th Cir. 2015); Pierce v. Colvin, 739 F.3d 1046, 1049–50 (7th Cir.
2014)). Moreover, “pain alone can be disabling.” Stark, 2016 WL 698255, at *3
(citing Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir. 2004)); see also Pierce,
739 F.3d at 1049–50.
Third, the Seventh Circuit has “repeatedly held improper”
consideration of a claimant’s activities of daily living. Stage, 2016 WL 492333,
at *5 (citing Bjornson, 671 F.3d at 647; Beardsley v. Colvin, 758 F.3d 834, 838 (7th
Cir. 2014); Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir. 2005)). The Seventh
Circuit may have recently tempered that position: in Loveless, it stated that
ALJs should not be permitted to “equat[e] activities of daily living with an
ability to work,” but found that it would be acceptable for an ALJ to
“consider[ a Claimant’s]…description of his daily activities in assessing
whether his testimony about the effects of his impairments was credible or

Page 13 of 19

overexaggerated.” 810 F.3d at 508 (citations omitted).8 But see Stage, 2016 WL
492333, at *5 (“The ALJ…erred by basing his adverse credibility
determination…” partially on the “improper” basis of activities of daily
living.”).
Fourth, the Seventh Circuit has also noted that “[a]n ALJ is not
statutorily required to consider a claimant’s work history, but ‘a claimant
with a good work history is entitled to substantial credibility when claiming
an inability to work because of a disability.’” Stark, 2016 WL 698255, at *3
(quoting Hill v. Colvin, 807 F.3d 862, 868 (7th Cir. 2015); additional quotation
from Rivera v. Schwieker, 717 F.2d 719, 725 (2d Cir. 1983) omitted). But, an
“ALJ’s silence [on this point] is not enough to negate…substantial evidence
supporting the adverse credibility finding.” Loveless, 810 F.3d at 508.

8

The Court must point out that it wonders whether this is a distinction
without much difference. Even where an ALJ considers a claimant’s daily activities
only in the context of making a credibility determination as part of reaching a final
RFC determination, the analytical problem inherent in the analysis would still seem
to infect the process. The main problem in equating daily activities with an ability
to work is that “a person performing chores has flexibility in scheduling, can
receive help, and is not held to a minimum standard of performance, unlike an
employee.” Stark, 2016 WL 698255, at *3 (citing Bjornson, 671 F.3d at 647). This Court
would also point out that it questions, in many cases, what other options a truly
disabled person would have besides performing daily activities on their own;
typically, a disabled person is not working and so does not have the money to pay
someone else to do necessary tasks on his or her behalf. Does a person who is
disabled have to forego cooking, cleaning, and washing his or her clothes to
establish credibility? In any event, there seems to be little significant difference
between: (1) an ALJ finding that a claimant’s ability to perform daily activities is not
evidence of an inability to work due to pain, on one hand; and (2) an ALJ finding
not credible a claimant’s reports of pain that prohibit her from working, on the
other. In both instances, the fact that the claimant can perform daily activities on his
or her own terms (not to mention the necessity of performing those activities)
would decrease the value of that information, whether applied to determine a
claimant's ability to work through pain or a claimant's RFC in spite of pain.

Page 14 of 19

2.2.3

Application of Standard to ALJ’s Decision

In light of all of these legal standards, the Court believes that the most
complete question it can ask to assess the ALJ’s credibility determination is
as follows: did the ALJ base his credibility determination on acceptable
substantial evidence, so as to overcome his failure to acknowledge Mr.
Deutsch’s positive prior work history?9
The answer to that question is unqualifiedly “no.”
The Court begins by pointing out that Mr. Deutsch did, indeed, have
a solid work history that the ALJ should have considered in assessing his
credibility. Mr. Deutsch worked for 29 consecutive years prior to being let go
from his job as a result of downsizing by his long-term employer. (See, e.g. Tr.
41–43). He earned severance pay in 2009, then tried to earn money by selling
a warehouse full of “obsolete inventory” on eBay in 2010 and 2011. (See, e.g.,
Tr. 43–44). (And that eBay work probably further exacerbated Mr. Deutsch’s
back problems, as it required heavy lifting.) In short, until the time of Mr.
Deutsch’s alleged disability onset (and during some of the period
afterwards), Mr. Deutsch had a very positive work history. The ALJ should
have considered that fact in reaching a credibility determination, see, e.g.,
Stark, 2016 WL 698255, at *4; Hill, 807 F.3d at 868, and his failure to do so can

9

The Court acknowledges that this is a different question than whether the
ALJ’s credibility determination was “patently wrong.” But, in light of Stark and
Hill, it appears that ALJs might now be required to consider a claimant’s prior work
history (assuming that the claimant has a “good work record”), such that failure to
consider that fact might outright warrant reversal. See, e.g., Stark, 2016 WL 698255
at *4 (citing Hill, 807 F.3d at 868). However, Loveless seems to rein that in a bit,
providing that an ALJ’s silence regarding work history will not negate a credibility
determination that is, otherwise, based upon substantial evidence. 810 F.3d at 508.
The Court will use Loveless’ formulation.

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only be overcome if his credibility determination was otherwise based upon
substantial evidence.
Once the Court strips away the unacceptable evidence, there is very
little evidence left to support the ALJ’s credibility determination. First, the
ALJ’s determination that Mr. Deutsch’s pain reports were inconsistent with
objective medical evidence was not appropriate support for an adverse
credibility finding. See, e.g., Stark, 2016 WL 698255, at *3 (citing Hall, 778 F.3d
at 691; Pierce, 739 F.3d at 1049–50). Second, the ALJ’s consideration of Mr.
Deutsch’s daily activities might also have been inappropriate.10 See, e.g., Stage,
2016 WL 492333, at *5 (citing Bjornson, 671 F.3d at 647; Beardsley, 758 F.3d at
838; Gentle, 430 F.3d at 867); but see Loveless, 810 F.3d at 508. Even if not,
though, the ALJ’s credibility finding could appropriately rest on only three
things:
(1)

Mr. Deutsch’s minor failures to follow through with
recommended treatment;

(2)

Mr. Deutsch’s ability to perform household chores and care for
himself; and

(3)

a single minor difference between two statements regarding
the effectiveness of injections that Mr. Deutsch received.

(See, e.g., Tr. 24–25). And, upon the slightest scrutiny, those three pieces of
evidence simply do n0t hold up.
Mr. Deutsch’s ability to perform household tasks, for instance, was
extremely limited, and not actually inconsistent with his subjective reports
of pain. (See, e.g. Tr. 47–48, 51, 55–56). The ALJ found it relevant that Mr.
Deutsch could do the following things: “cook, do light cleaning, do laundry,

10

And this is even assuming that the ALJ’s credibility determination relied
on this point. It might not have. See n. 2, supra.

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mow the lawn, garden, walk, drive, shop, read, exercise, care for his pets,
and care for his personal needs.” (Tr. 25). It is not clear how cooking or light
cleaning would be inconsistent with Mr. Deutsch’s ability to “sit only 3 to 5
hours, stand 1 to 2 hours, and walk ½ hour” during an 8-hour workday. (Tr.
24). Using a vacuum, for instance would reportedly cause Mr. Deutsch 45
minutes of pain. (Tr. 55). Laundry might involve lifting that would exceed
Mr. Deutsch’s reported capacity, but the ALJ never clarified how Mr. Deutsch
did his laundry during the hearing; perhaps Mr. Deutsch does small 5-pound
loads at a time. As to lawn and garden care, Mr. Deutsch testified that his
ability to do that activity was actually very limited and not in any way
inconsistent with his reports of pain . (Tr. 48, 56). The only walking he
reported was minor and consistent with his reported pain. (See Tr. 61). He
testified that he can drive, but not that he does so often; and, unless he was
driving longer periods of time that would require lots of sitting, it is not clear
how that would be relevant. (See Tr. 48). Shopping, like laundry, could
hypothetically exceed Mr. Deutsch’s capacity, but it does not appear that it
actually did, and the ALJ did not develop this line of questioning. (Tr. 55–56).
It is not clear how reading would have any impact on the credibility of Mr.
Deutsch’s reports of pain, but assuming that it shows he could sit or
concentrate for extended periods, the small amount that Mr. Deutsch
reported reading (see Tr. 55) would not conflict with his complaints. Any
exercise is extremely limited (Tr. 51, 61), and, in any event, the ALJ criticized
Mr. Deutsch elsewhere for failing to follow through with doctor
recommendations, including greater activity (see Tr. 24, 51)—it is not clear
whether Mr. Deutsch should or should not have been active. The care for his
pets involved only walking his dog for 15 to 30 minutes—there is no
indication of anything further such as being required to lift a heavy dog. (See
Page 17 of 19

Tr. 61). There is no indication about how an ability to care for his personal
needs would conflict with his reports of pain. And, finally, most of these
activities—cooking, light cleaning, laundry, mowing the law, walking,
driving, shopping, and caring for personal needs—are things that simply
must be done (unless one can afford to pay another to them). It is not clear
how any of this would weigh against Mr. Deutsch’s credibility.
Mr. Deutsch’s alleged failure to follow through on treatment,
meanwhile, was not actually a failure. The two things that the ALJ
identified—failure to stop smoking and failure to become more active—are
undermined by the record. Mr. Deutsch, in fact, made a number of attempts
to quit smoking. (Tr. 443, 452, 457–58). As for activity level, it appears that
Mr. Deutsch did some walking (Tr. 61), minor gardening (Tr. 48, 56), and
meditation (see Tr. 55)—so the Court is confused by what more the ALJ could
have expected. Perhaps the ALJ was referring to Mr. Deutsch’s choice not to
go to the pool to swim. (See Tr. 51). But, as Mr. Deutsch explained, he
received conflicting recommendations about whether he should swim. (Tr.
51).11 In short, there is no evidence that Mr. Deutsch actually failed to follow
through on treatment.
That leaves only one possible permissible basis for the ALJ’s adverse
credibility finding: the singular (and very minor) inconsistency between Mr.
Deutsch’s reports regarding the effectiveness of injections. As Mr. Deutsch
points out, there actually is not any inconsistency: in his original report, Mr.
Deutsch report 80% pain relief, but noted that a second injection lasted a
short period of time (Tr. 281); his later report stated that the injections

11

In any event, this Court would be reluctant to hold a person who cannot
pay his mortgage to the potentially-expensive requirement of going to a pool.

Page 18 of 19

provided only short term relief (Tr. 404, 489). And, even if those reports were
inconsistent, they are only slightly so and separated by almost four years.
That evidence, alone, certainly is not substantial.
In sum, there is practically no evidence to support the ALJ’s credibility
determination. Meanwhile, the ALJ did not consider Mr. Deutsch’s positive
and extensive work history. In the absence of substantial evidence to
overcome that latter problem, the Court is obliged to find that the ALJ’s
credibility determination constituted reversible error. See, e.g., Stark, 2016 WL
698255 at *4 (citing Hill, 807 F.3d at 868); Loveless, 810 F.3d at 508.
3.

CONCLUSION
For the reasons discussed above, the Court is obliged to vacate the

decision of the ALJ and remand for further proceedings consistent with this
order.
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 order.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 30th day of March, 2016.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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