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Baljo v. Saul

United States District Court, W.D. Wisconsin

December 3, 2019

KYLE BALJO, Plaintiff,
ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.


          James D. Peterson District Judge.

         Plaintiff Kyle Baljo seeks judicial review of a final decision of defendant Andrew Saul, Commissioner of the Social Security Administration, finding Baljo not disabled within the meaning of the Social Security Act. Baljo contends that the administrative law judge (ALJ), Laurence E. Blatnick, erred by: (1) failing to adequately consider Baljo's subjective complaints; and (2) failing to resolve an apparent conflict between the testimony of the vocational expert and the Dictionary of Occupational Titles. Because the court agrees with the first contention, the court will remand the case for further proceedings. The oral argument scheduled for December 13, 2019, is canceled.


         Baljo seeks benefits for disability beginning on January 1, 2009, when Baljo was 26 years old. In a May 2018 decision, the ALJ found that Baljo suffered from three severe impairments: (1) diabetes with neuropathy and retinopathy; (2) status post left humerus fracture (shoulder pain caused by a 2014 injury); and (3) a low back disorder (caused by multiple injuries from lifting heavy objects). In light of these impairments, the ALJ found in his residual functional capacity assessment (RFC) that Baljo can perform light work, with the additional restrictions that he can lift, carry, push, and pull 20 pounds occasionally and ten pounds frequently; he can sit for six hours and stand and walk for two hours but needs to change positions every 30 to 45 minutes for three to five minutes at a time; he cannot climb ladders, ropes, or scaffolds; and he can occasionally climb ramps. R. 31.[1] Relying on the testimony of a vocational expert, the ALJ found that Baljo could perform his past job as a cashier as it is generally performed, as well as other light jobs, such as information clerk, marker, and inspector/sorter.

         A. Subjective complaints

         Baljo testified about his limitations at the hearing. Discussing his diabetes, Baljo said that he has difficulty controlling his blood sugar and that he has “lows and highs throughout the day.” R. 53. Low blood sugar makes him shaky, disoriented, and unable to concentrate. High blood sugar makes him “really tired” to the point that he falls asleep. R. 53 and 61. Because of his neuropathy, he needs to elevate his legs several times a day for 15 to 30 minutes. R. 54. His back and shoulder issues make it difficult for him to stand more than 10 minutes at a time or sit for more than 30 to 45 minutes. R. 53.

         Both the ALJ and the parties have assumed that Baljo would be disabled if his description of his symptoms is accurate. But using boilerplate that it appears in many Social Security administrative decisions, the ALJ stated that Baljo's testimony was “not entirely consistent with the medical evidence and other evidence in the record.” R. 35. Despite criticizing similar boilerplate in multiple opinions, e.g., Stark v. Colvin, 813 F.3d 684, 688 (7th Cir. 2016), the court of appeals has declined to reverse an ALJ's decision for using the boilerplate, so long as “the ALJ otherwise identifies information that justifies the credibility determination.” Moore v. Colvin, 743 F.3d 1118, 1122 (7th Cir. 2014).

         As Baljo points out, it is difficult to determine in this case what information the ALJ relied on to support his determination regarding Baljo's subjective complaints. No portion of the decision is expressly devoted to that issue. Rather, most of the decision is a description of the medical evidence with little analysis of it, so it is not always clear when the ALJ is relying on a particular piece of evidence to question Baljo's subjective complaints and when the ALJ is simply summarizing the record.

         It is well established that one of the ALJ's key duties is to “build a logical bridge” from the evidence to his conclusion, including when assessing subjective complaints. See Cullinan v. Berryhill, 878 F.3d 598, 604 (7th Cir. 2017). So failing to explain a credibility determination is a breach of that duty. Minnick v. Colvin, 775 F.3d 929, 937 (7th Cir. 2015) (“Though an ALJ's credibility determination may only be overturned if it is ‘patently wrong,' a failure to adequately explain his or her credibility finding by discussing specific reasons supported by the record is grounds for reversal.” (internal quotations omitted)). That said, the parties assume that various observations the ALJ made throughout the opinion were reasons for questioning Baljo's credibility. The court will make the same assumption and evaluate those reasons accordingly. The court agrees with Baljo that several of those reasons are inconsistent with circuit precedent and not supported by substantial evidence.

         1. Activities of daily living

         The ALJ listed Baljo's activities of daily living, including meal preparation, doing laundry and other housework, grocery shopping, playing video games, using the internet, and playing chess. R. 32. In another section of the decision, the ALJ observed that Baljo had reported that he was golfing two or three times a week. R. 34. The commissioner acknowledges that the ALJ didn't explain how any of these activities were inconsistent with Baljo's testimony, but the commissioner says that the inconsistencies are “reasonably discernible” from the decision. Dkt. 12, at 9 (citing Cronin v. U.S. Dep't of Agric., 919 F.2d 439, 442 (7th Cir. 1990)). Specifically, the commissioner says that Baljo's ability to do household chores, shop for groceries, and play golf undermine Baljo's testimony that he had difficulty “doing labor.” And Baljo's ability to shop, play chess and video games, and use the internet undermines his testimony that he has trouble concentrating.

         If that was the ALJ's implicit reasoning, it isn't supported by substantial evidence. Baljo's testimony wasn't about “doing labor”; it was about walking, standing, and sitting for long periods of time. Playing golf frequently could undermine that testimony, but Baljo said that he stopped playing golf (more precisely, disc golf) in 2010, shortly after his onset date. R. 58-59. As for activities such as household chores and shopping, the court of appeals has “repeatedly warned against equating the activities of daily living with those of a full-time job.” Hill v. Colvin, 807 F.3d 862, 869 (7th Cir. 2015). This is both because an ability to perform a particular activity may not translate into an ability to work full time and because a claimant may perform an activity at home only because he has no other choice. E.g., Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir. 2005) (“Gentle must take care of her children, or else abandon them to foster care or perhaps her sister, and the choice may impel her to heroic efforts.”); Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (“minimal daily activities” such as preparing simple meals, weekly grocery shopping, taking care of family member, and playing cards “do not establish that a person is capable of engaging in substantial physical activity”). Baljo didn't say that he was bed-ridden; he said that his ability to walk, stand, and sit was limited. Neither the ALJ nor the commissioner explain how Baljo's testimony suggests that he can walk, stand, or sit longer than he says.

         The commissioner also doesn't explain how Baljo's activities undermine his testimony about his ability to concentrate. Shopping and using the internet don't necessarily require the type of sustained concentration necessary to work full time. Perhaps playing chess and video games is more probative of ability, but Baljo didn't say that he could never concentrate. Rather, he said that his concentration was impaired several times a week, when he suffered from high and low blood sugar. Because the ALJ failed to explain how Baljo's activities of daily living are inconsistent with his testimony, the ALJ should not have relied on those activities to question Baljo's subjective complaints.

         2. ...

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