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Hoffman v. Colvin

United States District Court, E.D. Wisconsin

September 20, 2016



          William C. Griesbach, United States District Court Chief Judge.

         Plaintiff filed this action challenging the decision of the Commissioner denying him disability benefits. The Plaintiff alleges that the ALJ erred in his treatment of both consulting and treating physicians' opinions, his credibility determination, his consideration of the listings, his interaction with the vocational expert, and his treatment of the vocational expert's qualifications.[1]For the reasons that follow, the decision of the Commissioner will be remanded for further proceedings.

         I. Background

         The Plaintiff had been working operating trucks and heavy machinery for some 28 years until he alleges a neck surgery rendered him unable to continue working due to pain and headaches. He also alleges mental health issues, including depression, primarily due to his pain and inability to work. He stopped working after the surgery in February 2011 and returned to work in June 2013. The issue, therefore, is whether he was properly found to be not disabled during that period.

         II. Analysis

         In reviewing a decision of an ALJ on a claim for Social Security disability benefits, this court may not reweigh evidence, resolve conflicts in the record, decide questions of credibility, or, in general, substitute its own judgment for that of the Commissioner of Social Security; rather, the court's task is limited to determining whether the ALJ's factual findings are supported by substantial evidence. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.”) Despite the deference accorded to the ALJ, however, a reviewing court must not “simply rubber-stamp the Commissioner's decision without a critical review of the evidence.” Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). The Commissioner's decision cannot stand if the ALJ fails to build a logical bridge from the evidence to his conclusion. Green v. Apfel, 204 F.3d 780, 781 (7th Cir.2000). While the ALJ need not provide a "complete written evaluation of every piece of testimony and evidence, " Diaz v. Chater, 55 F.3d 300, 308 (7th Cir.1995), his decision must reflect a fair assessment of evidence and be free of fatal gaps and contradictions. Johnson v. Apfel, 189 F.3d 561, 563 (7th Cir. 1989). Still, a reviewing court must "give the opinion a commonsensical reading rather than nitpicking at it." Id. at 564.

         A. Credibility

         The Plaintiff first argues that the ALJ erred by not properly evaluating the Plaintiff's credibility. Although the ALJ's decision is otherwise quite thorough, it does not appear that the ALJ made a specific finding as to the Plaintiff's credibility, except inasmuch as the denial of benefits suggests that the ALJ implicitly found aspects of the Plaintiff's testimony incredible.[2] The ALJ cited a number of factors that the ALJ might have used to evaluate the Plaintiff's symptoms. For example, the ALJ cited the fact that the Plaintiff engaged in certain daily activities, such as boating and preparing a few meals, and that his physician recommended somewhat conservative over-the-counter medication treatment. (R. 29-30.) The Plaintiff could also walk for 15 minutes and sit for 30, shop for groceries and get the mail. (R. 28.) He also received unemployment benefits for part of the period. However, the ALJ almost never articulated whether any of these factors played a role in evaluating the Plaintiff's credibility or the consistency of his statements with objective medical evidence. Arguably, the ALJ did provide one explanation for an apparent contradiction. After the Plaintiff returned to work, the ALJ noted that “he stated that his work was not going very well; however, he admitted that his employer had not complained about his job performance.” (R. 28.) From this statement, one may infer that the ALJ believed the Plaintiff was exaggerating his symptoms, but the fact that there are no complaints about an employee's performance does not mean the employee is not experiencing significant pain.

         The deficient credibility determination is problematic, the Plaintiff argues, because a finding that he was less than fully credible was implicit in the ALJ's conclusion. Most salient is the fact that the ALJ asked the Plaintiff whether he could have worked at a fully sedentary job, such as an office position, and the Plaintiff responded negatively, stating that he would need not only to be able to sit and stand but also to lie down. (R. 51.) If believed, then the Plaintiff would not have qualified even for the sedentary work the ALJ ultimately found was available to him. Implicitly, the ALJ rejected that testimony, finding it not credible in light of other evidence. But an implicit credibility finding does not allow a reviewing court to consider whether the ALJ built the requisite logical bridge. It is true that an ALJ's credibility determination is reviewed deferentially and should be overturned only if it is “patently wrong.” Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008). However, “[t]he determination of credibility must contain specific reasons for the credibility finding” and “must be supported by the evidence and must be specific enough to enable the claimant and a reviewing body to understand the reasoning.” Id. (citing Arnold v. Barnhart, 473 F.3d 816, 822 (7th Cir. 2007)). Here, it is not possible to determine which evidence the ALJ relied on to discount the Plaintiff's claim that his pain (including headaches) was severe enough that he would need to lie down during the day. Instead, the ALJ merely cited a number of things (daily activities, medications, etc.) without tying together how they were inconsistent with the Plaintiff's testimony. Because the rejection of that testimony was only implicit in the ALJ's finding, this court cannot meaningfully review the credibility conclusion even under a deferential standard. Zurawsk i v. Halter, 245 F.3d 881, 887 (7th Cir. 2001) (“While the ALJ did list Zurawski's daily activities, those activities are fairly restricted (e.g., washing dishes, helping his children prepare for school, doing laundry, and preparing dinner) and not of a sort that necessarily undermines or contradicts a claim of disabling pain.”) Golembiewski v. Barnhart, 322 F.3d 912, 916 (7th Cir. 2003) (“nothing in Social Security Ruling 96-7p suggests that the reasons for a credibility finding may be implied. Indeed, the cases make clear that the ALJ must specify the reasons for his finding so that the applicant and subsequent reviewers will have a fair sense of the weight given to the applicant's testimony.”) Accordingly, remand is required for a credibility determination.

         B. Consulting Medical Opinions

         The Plaintiff also argues that the ALJ erred in his weighing of the consulting medical opinions by considering only the opinions that were not favorable to the Plaintiff. In addition, he argues that the ALJ did not incorporate the limitations from the consultants' medical opinions into the questions he posed to the vocational expert (“VE”).

         Consulting physicians Drs. Foster and Walcott both limited the Plaintiff to sedentary exertion with only limited overhead reaching. The Plaintiff's challenge to their opinions seems partly to be a challenge to the very nature of consulting physicians: he argues that they did not personally examine him and were not specialists in any of his symptoms. To the extent that is the Plaintiff's argument, it is rejected as vague and overly generalized, given that such an argument could be made in practically every Social Security case. The question is whether the ALJ reasonably considered the medical evidence, as explained below.

         1. Mental Limitations

         The Plaintiff also argues that the ALJ did not incorporate any of the consulting examiners' mental restrictions into the questions posed to the VE, which means the restrictions are also absent from the RFC. Dr. Donahoo, a consulting psychologist, completed a mental RFC form and indicated “moderate” limitations in some areas, including completing a normal workday and workweek without interruptions, and performing at a consistent pace without an unreasonable number and length of rest periods. (R. 85-86.) The ALJ asked the VE to assume an individual who was limited to routine, 2-3 step tasks and who could be off-task up to 10 percent of ...

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