Faust, Candy v. Colvin, Carolyn

Filing 17

ORDER reversing and remanding action to Commissioner for further proceedings RE: 7 Social Security Transcript. Signed by District Judge Barbara B. Crabb on 1/31/2014. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CANDY FAUST,
OPINION AND ORDER
Plaintiff,
13-cv-323-bbc
v.
CAROLYN COLVIN,
Acting Commissioner, Social Security Administration,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - This is an appeal of an administrative decision denying plaintiff Candy Faust’s claim
under the Social Security Act, 42 U.S.C. § 405(g), for disability benefits and supplemental
security income. Plaintiff alleged that she suffered from a number of impairments, including
back and hip pain, but the administrative law judge concluded that she was not disabled
because she retained the ability to perform a significant number of jobs. Because I agree
with plaintiff that the administrative law judge erred by not considering plaintiff’s own
testimony, I am remanding the case for further proceedings.

OPINION
Plaintiff first challenges the language the administrative law judge used to assess
plaintiff’s credibility:
After careful consideration of the evidence, the undersigned finds that the

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claimant’s medically determinable impairments could reasonably be expected
to cause some of the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms
are not credible to the extent they are inconsistent with the above residual
functional capacity assessment.
AR 24.
Plaintiff is correct that the Court of the Appeals for the Seventh Circuit has criticized
similar language in several other decisions because it “implies that the ability to work is
determined first and is then used to determine the claimant's credibility.” Bjornson v.
Astrue, 671 F.3d 640, 645 (7th Cir. 2012). See also Shauger v. Astrue, 675 F.3d 690, 696
(7th Cir. 2012); Punzio v. Astrue, 630 F.3d 704, 709 (7th Cir. 2011); Martinez v. Astrue,
630 F.3d 693, 696–97 (7th Cir. 2011); Spiva v. Astrue, 628 F.3d 346, 348 (7th Cir. 2010);
Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010). It is perplexing why the Social
Security Administration insists on continuing to use this boilerplate language despite
repeated admonishments by the court of appeals. Regardless, the commissioner is correct
that an administrative law judge’s use of the boilerplate is not a ground for reversing the
decision so long as he “otherwise points to information that justifies his credibility
determination.” Pepper v. Colvin, 712 F.3d 351, 367-68 (7th Cir. 2013).
A more substantive argument is that the administrative law judge failed to address
almost all of plaintiff’s testimony and written statements in his decision. This includes her
testimony regarding limitations in the use of her right hand, her inability to lift even ten
pounds, her need to keep her legs elevated, the increased limitations she suffered after reinjuring her back in November 2011 and the extent of her pain in her back and hips. AR

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41, 52, 57, 58-59, 60, 62-63, 66.

Plaintiff cites Zblewski v. Schweiker, 732 F.2d 75, 79

(7th Cir. 1984), for the proposition that, “when the ALJ fails to mention rejected evidence,
the reviewing court cannot tell if significant probative evidence was not credited or simply
ignored.”
The commissioner acknowledges grudgingly that the administrative law judge ignored
plaintiff’s testimony in his decision, but the commissioner defends the omission with the
proposition that “an ALJ need not mention every snippet of evidence in the record.” Arnett
v. Astrue, 676 F.3d 586, 591-92 (7th Cir. 2012). However, plaintiff’s testimony and
statements cannot be described as a “snippet” of evidence. 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), which is what he did in this case. See also
Martinez v. Astrue, 630 F.3d 693, 696-97 (7th Cir. 2011) (remanding case for
administrative law judge’s failure to consider all evidence).
The commissioner also lists various reasons for questioning plaintiff’s credibility, such
as previous work that plaintiff performed and the medical opinions in the record. This
argument is a nonstarter because the administrative law judge never determined what was
credible and what was not. Further, although the administrative law judge included in his
decision some of the observations that the commissioner cites, he never explained specifically
how or even whether those observations undermined plaintiff’s credibility. In fact, this is
a consistent problem throughout the administrative law judge’s decision. It is primarily a
list of different pieces of evidence from the record with little explanation of the importance

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of the evidence or how it fits together. This is a situation in which the administrative law
judge’s reasoning is “so poorly articulated as to prevent meaningful review.” Bates v. Colvin,
736 F.3d 1093, 1101 (7th Cir. 2013).
Finally, even if I assumed that the administrative law judge had considered plaintiff’s
testimony and that he found that testimony not credible for the reasons stated by the
commissioner, that would make the decision internally inconsistent. The administrative law
judge stated that he gave “as much possible benefit of the doubt to the claimant’s subjective
complaints,” AR 25, which suggests that he was treating her testimony as credible.
Accordingly, I must remand the case to the administration law judge for reconsideration.
Plaintiff raises a litany of other challenges to the administrative law judge’s decision.
Although many of these could qualify as harmless error, because the case is being remanded
on other grounds, it makes sense to give the administrative law judge an opportunity to
clarify his opinion to address plaintiff’s other concerns. In particular, the administrative law
judge should do the following:
•

explain the extent to which he is relying on plaintiff’s past work experience to
question her credibility regarding her current ability to work in light of his
conclusion that none of plaintiff’s work experience since her disability onset
date qualifies as substantial gainful activity;

•

reconsider his reliance on the state agency consultants’ opinions in light of
plaintiff’s testimony that she can no longer lift 40 pounds as the consultants
believed and in light of developments in plaintiff’s condition since the
consultants gave their opinions, discussing the factors in SSR 96-6p;

•

reconsider the weight to be placed on the October 2010 physician assistant’s
note, AR 447, in light of the fact that it does not come from an “acceptable
medical source” under SSR 06-3p, while also considering all of the conclusions
in the note rather than just those that undermine plaintiff’s claim;

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•

address the portion of the medical records included in Exhibit 3F that plaintiff
says supports her claim;

•

explain the extent to which he is relying on plaintiff’s application and receipt
of unemployment benefits in light of the requirement in 20 C.F.R. §
416.210(b) that applicants for disability benefits must first apply for
unemployment benefits and in light of the different standards involved in
obtaining unemployment benefits and disability benefits;

•

explain the basis for his finding that plaintiff suffers from a moderate
limitation in persistence and pace and include the basis for that limitation in
his residual functional capacity assessment and his hypothetical to the
vocational expert;

•

explain the basis for his finding that plaintiff would be off task 10 percent of
the time and for plaintiff’s limitations in reaching, handling and fingering.

Plaintiff raised other issues as well, but I have not included them in the list because
she did not develop them. For example, she argues that the administrative law judge failed
to follow SSR 96-5p and 20 C.F.R. §§ 416.902, 416.926, 416.927 and 416.946, but she
does not identify any particular requirements in these rules that the administrative law judge
violated.
It is not without some hesitation that I am remanding this case. As the commissioner
notes, plaintiff does not cite a medical opinion from a treating or reviewing medical
professional that supports a finding of disability, so it is not surprising that the
administrative law judge did not find in plaintiff’s favor. However, because it is well
established that the administrative law judge is required to consider all the evidence and the
commissioner did not develop an argument in favor of a finding of harmless error, I must
remand the decision for further proceedings.

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ORDER
IT IS ORDERED that plaintiff Candy Faust’s motion for summary judgment, dkt.
#13, is GRANTED.

The decision denying plaintiff benefits is REVERSED and

REMANDED under sentence four of 42 U.S.C. § 405(g). The clerk of court is directed to
enter judgment in favor of plaintiff and close this case.
Entered this 31st day of January, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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