Brenson, Darlyn v. Colvin, Carolyn

Filing 26

ORDER REVERSING and REMANDING the decision of the Commissioner of Social Security denying plaintiff's application for disability benefits. Signed by District Judge James D. Peterson on 03/20/2015. (mfh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

DARLYN BRENSON,
Plaintiff,

ORDER

v.
13-cv-752-jdp
CAROLYN W. COLVIN,
Commissioner of the Social
Security Administration,
Defendant.

Plaintiff Darlyn Brenson seeks judicial review of a final decision of defendant Carolyn
W. Colvin, the Commissioner of Social Security, finding her not disabled within the meaning of
the Social Security Act. For reasons stated more fully at the March 19, 2015, hearing, the court
will grant plaintiff’s motion and remand the case to the Commissioner.
Plaintiff identifies one ground for remand. She contends that the ALJ erred in his
credibility determination with respect to her physical limitations by misstating the record and
cherry-picking evidence. To take what is perhaps plaintiff’s best example, the ALJ relied on a
physician’s notes suggesting normal musculoskeletal findings, but he ignored the physician’s
notes of problems in the same section of the document. R. 21 (citing R. 357, which states:
“Mobility/gait: Unsteady” and “Lumbar: Right, Tenderness, Crepitus, Radicular type pain in
right leg with SLR testing”). The ALJ devoted little time to evidence from three of plaintiff’s
treating providers, MPST Jessica Hollis, Dr. David Tylicki, and Dr. Stephen Delahunt. Some of
these documents may provide further support for the ALJ’s conclusion. See, e.g., R. 430, 433.
But as it stands, on the whole, the ALJ’s decision suggests cherry-picking of evidence to support
a finding of no disability. See Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011) (citations
omitted); Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010) (citation omitted).

The court noted a second issue with the ALJ’s decision. In considering plaintiff’s
symptoms, the ALJ was required to engage in a two-step process: (1) determine whether there is
an underlying medically determinable impairment that could reasonably be expected to produce
plaintiff’s pain or other symptoms; and (2) evaluate the intensity, persistence, and limiting
effects of plaintiff’s symptoms to determine the extent to which they limit her functioning. SSR
96-7p. The ALJ’s findings on the first step are equivocal: he found that plaintiff has “largely
failed to sustain the first step” and that it is “questionable” whether there is an underlying
medically determinable impairment. R. 21. Nevertheless, he concluded that plaintiff’s
“medically determinable impairments could reasonably be expected to cause some of the alleged
symptoms.” R. 22 (emphasis added). The ALJ went on to step two, where he found that
plaintiff’s statements about the limiting effects of her symptoms were not credible. The ALJ has
made it impossible to evaluate whether there is a logical bridge from the evidence to his
conclusions. Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001). On remand, the ALJ must
make clear which, if any, of plaintiff’s symptoms are those that the ALJ dismisses because they
are not associated with medically determinable impairments. If on the other hand the ALJ finds
that plaintiff’s symptoms could be caused by her medically determined impairments and the
sole issue is whether she is exaggerating the extent or severity of her symptoms, he should make
that clear.
Finally, the ALJ relied in part on plaintiff’s noncompliance with treatment
recommendations. R. 22. An ALJ may use infrequent treatment or the failure to comply with
treatment recommendations to support “an adverse credibility finding where the claimant does
not have a good reason for the failure or infrequency [but] the ALJ must not draw any
inferences about a claimant’s condition from this failure unless the ALJ has explored the
claimant’s explanations as to the lack of medical care.” Craft v. Astrue, 539 F.3d 668, 679 (7th

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Cir. 2008) (internal citations and quotation marks omitted); see SSR 96-7p. In this case, the ALJ
asked plaintiff a few questions about what treatment she had received, R. 73-74, but he did not
ask plaintiff about her failure to follow recommended treatment. The ALJ gave no indication
during the hearing that plaintiff’s noncompliance with treatment would play a role in the
adjudication of her claim for disability benefits.
On remand, the ALJ must revisit his credibility determination. More specifically, the ALJ
must:


Review and assess the treatment notes of MPST Hollis, Dr. Tylicki, and Dr.
Delahunt.



Determine whether there is an underlying medically determinable physical or
mental impairment that could reasonably be expected to produce plaintiff’s pain
or other symptoms. Expressly identify any of plaintiff’s symptoms that are not
reasonably caused by plaintiff’s medically determinable impairments.



Develop the record and address any evidence that would explain plaintiff’s
noncompliance with recommended treatment.

This order does not mandate that any evidence be given a particular weight, nor does it mandate
a finding of disability.
IT IS ORDERED that the decision of defendant Carolyn W. Colvin, Commissioner of
Social Security, denying plaintiff Darlyn Brenson’s application for disability benefits is
REVERSED AND REMANDED. The clerk of court is directed to enter judgment for plaintiff
and close this case.
Entered March 20, 2015.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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