United States District Court, W.D. Wisconsin
GREGORY P. KRUSEC, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE.
Gregory Krusec seeks judicial review of a final decision of
defendant Nancy Berryhill, Acting Commissioner of Social
Security, denying him disability insurance benefits. The
administrative law judge (ALJ) found that Krusec had several
severe impairments, but he concluded that Krusec retained the
residual functional capacity (RFC) to perform light work,
subject to a few limitations. The ALJ concluded that Krusec
became disabled only on December 11, 2012, when he turned 60
years old. This meant that Krusec was eligible for
supplemental security income, but not disability insurance
benefits, because his date last insured was December 31,
the third time that Krusec has appealed the
commissioner's decision to federal court. On the last
appeal, this court reversed because ALJ Rogozen (1)
misinterpreted the opinion of a state agency medical
consultant; and (2) did not consider the entire record before
finding Krusec not credible. Krusec v. Colvin, No.
15-cv-498-jdp, 2016 WL 3703088 (W.D. Wis. Jul. 8, 2016). On
remand, the case was assigned to ALJ Schaefer. His decision
is the subject of the current appeal Now, Krusec contends
that ALJ Schaefer erred by (1) again finding Krusec not
credible; and (2) finding that Krusec would spend only 10
percent of the day off-task. ALJ Schaefer made the same
errors in his credibility analysis as ALJ Rogozen, and the
court will remand the case for a new credibility
determination. The oral argument scheduled for January 29,
2019, is cancelled as unnecessary.
was Krusec's third hearing regarding disability insurance
benefits, ALJ Schaefer considered Krusec's testimony from
the prior two hearings. R. 12. Krusec had testified that he had
back and neck pain that flared up at frequent and
unpredictable intervals. On days when the pain was bad,
Krusec said that he needed to ice his back for three to five
hours and was unable to work. He also testified that he
frequently needed to alternate between sitting, standing, and
walking, and that after sitting for 30 minutes, he needed to
walk around for 10 minutes. ALJ Schaefer found Krusec's
testimony not credible, and he determined that Krusec could
sit for up to one hour at a time before needing to stand up.
R. 11-13. He did not incorporate any limitations based on
Krusec's testimony that he needed to walk around for 10
minutes, and he did not incorporate any limitation to
accommodate for days when Krusec would be unable to work due
to flare ups.
ALJ's credibility determination is given deference and
the court will overturn it only if it is “patently
wrong.” Murphy v. Colvin, 759 F.3d 811, 816
(7th Cir. 2014). But the ALJ must still evaluate the entire
record and build a “logical bridge” from the
evidence to his conclusions. Myles v. Astrue, 582
F.3d 672, 678 (7th Cir. 2009); Getch v. Astrue, 539
F.3d 473, 480 (7th Cir. 2008). And in this case, ALJ Schaefer
did not do so.
Schaefer did not cite any medical records in his opinion.
Instead, he said that he was “incorporating by
reference” the summaries of the medical record written
in previous decisions by ALJ Mondi and ALJ Rogozen. R. 12.
Although both of those decisions were reversed and remanded,
ALJ Schaefer explained that this court had said that ALJ
Rogozen performed a “decent job” of assessing the
medical records and supporting his determinations. The
commissioner contends that ALJ Rogozen's credibility
analysis, as incorporated by the ALJ, supports ALJ
Schaefer's finding that Krusec is not credible.
commissioner is correct that, overall, ALJ Rogozen did a
decent job summarizing the medical record. But the court
cited two specific errors in ALJ Rogozen's decision that
warranted reversal. First, ALJ Rogozen misinterpreted the
opinion of the state agency medical consultant, Dr. Vidya
Madala. Krusec, 2016 WL 3703088, at *1. On remand,
ALJ Schaefer adequately addressed this error by reassessing
Madala's opinion and explaining his reasons for assigning
it “little weight.” R. 14.
the court determined that ALJ Rogozen's credibility
analysis was flawed because ALJ Rogozen had ignored parts of
the record that contradicted his credibility determination.
Krusec, 2016 WL 3703088, at *2. In particular, ALJ
Rogozen said that Krusec's pain was largely attributable
to a disc herniation in June 2008, and that Krusec had not
complained about severe pain prior to the expiration of his
insurance in December 2007. R. 160. But this analysis ignored
numerous records from late 2007 and early 2008 that showed
that Krusec had complained about debilitating pain before the
disc herniation and before the date last insured. S. R. 275,
369, 369, 406, 544. Because ALJ Rogozen did not
consider the entire record, particularly the documents that
contradicted his conclusion, the court remanded the case so
that the ALJ could conduct a new credibility determination.
Krusec, 2016 WL 3703088, at *2. ALJ Schaefer simply
adopted ALJ Rogozen's incomplete review of the record
without further scrutiny, thereby repeating the error.
only other reason that ALJ Schaefer gave for finding Krusec
not credible was Krusec's delay in filing for benefits.
R. 11. But ALJ Schaefer did not ask Krusec to explain the
delay, and there are many valid reasons why a claimant may
delay his application for benefits. Sarchet v.
Chater, 78 F.3d 305, 308 (7th Cir. 1996) (“Many
people are ignorant of the full range of available benefits,
or reluctant to undergo arduous administrative proceedings in
which they are called liars, until desperation resulting from
a personal crisis.”). So if ALJ Schaefer thought the
timing of Krusec's application was suspsicious, he should
have investigated further before finding Krusec not credible
for that reason. Claimants should not be punished for waiting
to file for benefits only when they truly need it. See
Czarnecki v. Colvin, 595 Fed.Appx. 635, 644 (7th Cir.
2015) (citing Sarchet, 78 F.3d at 308).
commissioner contends that ALJ Schaefer also based his
credibility determination on Krusec's testimony that he
did household chores, mowed the lawn, and shoveled snow. R.
12. But if ALJ Schaefer believed that these activities
contradicted Krusec's testimony, he did not say so. ALJ
Schaefer mentioned these activities only as part of his
summary of Krusec's testimony. And even if ALJ Schaefer
had considered these activities in his credibility analysis,
the commissioner does not explain why they would be
inconsistent with Krusec's allegations of pain that
flares up at unpredictable intervals. Sporadic household
chores are not equivalent to the rigors of full-time work.
See Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir.
commissioner also contends that the court should affirm the
decision because ALJ Schaefer's RFC analysis was
supported by the opinions of the state agency medical
consultants and the consultative examiner. R. 14-16. But this
argument does not address Krusec's contention that ALJ
Schaefer erred in his credibility analysis. And the
commissioner does not argue that the errors in the
credibility analysis were harmless, or even acknowledge the
harmless error doctrine. Furthermore, the commissioner cannot
now argue that the medical opinions would have justified the
credibility determination, because ALJ Schaefer did not
employ that rationale in his decision. See Roddy v.
Astrue, 705 F.3d 631, 637 (7th Cir. 2013).
court will remand for the ALJ to conduct a new credibility
determination. On remand, the ALJ should consider the entire
record and he should clearly explain (1) what evidence he is
relying on to make his credibility determination; and (2) why
it supports that determination. In doing so, the ALJ must
address those parts of the record from late ...