ENTRY ON JUDICIAL REVIEW
TANYA WALTON PRATT, District Judge.
Plaintiff Philip Avery, Jr. ("Avery") requests judicial review of the final decision of the Commissioner of the Social Security Administration (the "Commissioner"), denying his application for Social Security Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. Avery's claim was denied initially and on reconsideration, and he requested a hearing before Albert J. Velusquez, Administrative Law Judge ("ALJ"). The ALJ held a hearing and decided that Avery was not entitled to benefits. Avery sought review with the Appeals Council, which granted review and remanded for a new decision. The ALJ held a second hearing and issued a decision, again finding Avery not entitled to benefits. The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner of the Social Security Administration ("Commissioner"). Avery subsequently filed this action under 42 U.S.C. § 405(g) for review of the Commissioner's decision. For the reasons stated below, the Court
Avery was born in 1966 and he was 45 years old on his alleged disability onset date, April 14, 2011. He met the insured status requirements of the Social Security Act through December 31, 2016. He has past work experience as a routing clerk, hospital clerk, forklift operator, baggage handler, cashier, and telemarketer.
Avery developed back problems following a car accident in 2011. When he applied for DIB in 2012, Avery wrote that he was disabled by pain in his back and left leg, stiffness in his back, numbness and a burning sensation in his left leg, and left-sided weakness. He reported that he used a cane sometimes, had trouble walking, standing, and sitting, and changed positions "a lot."
Avery has received extensive treatment for chronic lower back pain, including two discectomies, epidural injections, physical therapy, and narcotic pain medication, all with little or no improvement. (See
The Court determines whether substantial evidence supports the ALJ's decision and whether the ALJ applied the correct legal standards. Stepp v. Colvin, 795 F.3d 711, 718 (7th Cir. 2015); Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013). The ALJ is not required to mention every piece of evidence, Arnett v. Astrue, 676 F.3d 586, 592 (7th Cir. 2012), but he must build an accurate and logical bridge from the evidence to his conclusions, Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015).
Avery challenges the ALJ's decision, arguing he made two errors. First, Avery maintains the ALJ did not properly consider the pain management specialist Christopher Doran, M.D.'s opinion that Avery needs a spinal cord stimulator
An ALJ is required to articulate his evaluation of relevant medical evidence; merely reciting the evidence does not suffice. Booker v. Astrue, Cause No. 4:08-cv-097-SEB-WGH, 2009 WL 2987177, at *6 (S.D. Ind. Sept. 15, 2009); 20 C.F.R. § 404.1527(b). Avery's neurosurgeon Thomas Leipzig, M.D. ("Dr. Leipzig"), treated him from April to December 2011, which treatment included two micro-discectomies. In December 2011, Dr. Leipzig referred Avery to a pain management specialist, Dr. Doran, for evaluation for spinal cord stimulation. (
A recommendation that a claimant obtain a spinal cord stimulator does not necessarily compel a finding of disability. However, the opinion is important because it supports Avery's claims regarding the extent and persistence of his pain. A spinal cord stimulator is a recommendation for "aggressive and invasive" treatment of Avery's back pain. See Ramey v. Astrue, 319 F. App'x 426, 429 (7th Cir. 2009); Camacho v. Colvin, 15cv7080(CM)(DF), 2017 WL 770613, at *24 (S.D.N.Y. Feb. 27, 2017) (suggesting that a referral for a spinal cord stimulator was a referral for intensive treatment of back pain). The recommendation itself suggests that Dr. Doran thought Avery's pain was severe enough to warrant a spinal cord stimulator, which corroborates Avery's allegations of disabling pain. See Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004) (noting that evidence claimant submitted to pain-treatment procedures such as "heavy doses of strong drugs" like Vicodin and morphine and had a surgical implantation of a spinal-cord stimulator corroborated her complaints of pain and it was improbable that medical providers would prescribe drugs and other treatment if they thought claimant was faking her complaints). Similarly, Dr. Leipzig's referral of Avery to Dr. Doran for evaluation for a spinal cord stimulator suggests that Dr. Leipzig thought Avery's pain was severe enough to warrant such treatment and that other, less invasive, treatments would not be effective. If the ALJ accepted the opinion as to the need for a spinal cord stimulator, this would enhance Avery's credibility. If the ALJ rejected the opinion, however, he did not provide any reasons for doing so, and the ALJ must give good reasons for rejecting medical opinions. In the end, we do not know what the ALJ thought about the opinion because his decision does not evaluate it.
The Commissioner responds that Dr. Doran's recommendation of a spinal cord stimulator is not a "medical opinion." The Court disagrees. The regulations state: "Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis, and prognosis. . . ." 20 C.F.R. § 404.1527(a)(2). Dr. Doran's opinion that Avery should have a spinal cord stimulator is an opinion from an acceptable medical source (a physician) and reflects judgment about the nature and severity of Avery's pain. Even if Dr. Doran's opinion that Avery should get a spinal cord stimulator was not a "medical opinion" under the regulations, the ALJ still must consider it in determining Avery's functional limitations. See, e.g., Roddy, 705 F.3d at 638; 20 C.F.R. § 404.1526(d).
Turning to the second issue, "[t]he court will defer to an ALJ's credibility finding so long as it is not `patently wrong.'" Engstrand v. Colvin, 788 F.3d 655, 660 (7th Cir. 2015). "In determining credibility[,] an ALJ must consider several factors, including the claimant's daily activities, [his] level of pain or symptoms, aggravating factors, medication, treatment, and limitations, and justify the finding with specific reasons." Villano v. Astrue, 556 F.3d 558562 (7th Cir. 2009) (citations omitted); see 20 C.F.R. § 404.1529(c). An "ALJ may not discredit a claimant's testimony about [his] pain and limitations solely because there is no objective medical evidence supporting it." Engstrand, 788 F.3d at 660; see also 20 C.F.R. § 404.1529(c)(2) ("[W]e will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the available objective medical evidence does not substantiate your statements."). "An erroneous credibility finding requires remand unless the claimant's testimony is incredible on its face or the ALJ explains that the decision did not depend on the credibility finding." Engstrand, 788 F.3d at 660 (quoting Pierce v. Colvin, 739 F.3d 1046, 1051 (7th Cir. 2014)).
The Court agrees with Avery that the ALJ's credibility analysis contains enough flaws that a remand is required. See Allord v. Barnhart, 455 F.3d 818, 821 (7th Cir. 2006) (rejecting argument that the ALJ's errors in making the credibility determination were harmless because the ALJ had other grounds to discredit the claimant's testimony"). The ALJ gave inadequate reasons for finding Avery's statements about the intensity and persistence of his symptoms and resulting limitations "not entirely credible" (
In addition, objective medical evidence supports Avery's allegations. The medical records document his persistent complaints of lower back and left leg pain. (See, e.g.,
The ALJ also considered that Avery failed to show for one of his physical therapy appointments and failed to follow-up with physical therapy. (
Further, the ALJ found that Avery's ability to attend classes at Ivy Tech and obtain an Associate Degree "undermines his claim that he is totally disabled from his back problem." (
The ALJ wrote that Avery "has alleged that he cannot obtain the stimulator due to insurance issues" but then notes that he "has been able to come under the care of Nydia Nunez-Estrada." (Filing No. 14-2 at 19.) The ALJ again noted that Avery "stated that he was offered a stimulator but does not have insurance." (
In addition, the ALJ emphasized that in July 2013 Dr. Nunez-Estrada found that Avery's pain "seems out of proportion with the exam." (
In addition, the ALJ discounted Avery's testimony about his daily activities, reasoning:
However, as noted, the reliance on the supposed lack of corroborating medical evidence is problematic. "The ALJ may not discredit a claimant's testimony about [his] pain and limitations solely because there is no objective medical evidence supporting it." Engstrand, 788 F.3d at 660; Hill, 807 F.3d at 869 (stating a claimant's "testimony cannot be disregarded simply because it is not corroborated by objective medical evidence"). Contrary to the ALJ's opinion, quite a bit of objective medical evidence supports Avery's allegations of left leg pain and resulting functional limitations. Furthermore, the ALJ's reference to "other factors discussed in this decision" is unhelpful to this reviewing Court because the ALJ does not identify what those other factors are or explain how they cut against Avery's allegations. See, e.g., Schrock v. Colvin, No. 1:14-cv-00069-JMS-DML, 2015 WL 364246, at *5 (S.D. Ind. Jan. 27, 2015).
Lastly, the ALJ's decision does not reflect the ALJ's consideration of Avery's good work history in assessing Avery's statements about his pain, other symptoms, and limitations. A "claimant with a good work record is entitled to substantial credibility when claiming an inability to work because of a disability." Hill, 807 F.3d 862 at 868 (citation and quotation omitted). But see Reed v. Berryhill, No. 1:16-cv-00359-SEB-TAB, 2017 WL 1190510, at *5 n.4 (S.D. Ind. Mar. 31, 2017) (stating that 20 C.F.R. § 404.1529(c)(3) "does not require a consideration of work history to make a credibility determination"). However, "work history is just one factor among many, and it is not dispositive." Loveless v. Colvin, 810 F.3d 502, 508 (7th Cir. 2016). At the second hearing, the ALJ stated that Avery had "a really solid work history" of which he should be proud. (
For the reasons stated above, the final decision of the Commissioner is