Linda Durr-Irving v. Carolyn Colvin
Filing
Filed Nonprecedential Disposition PER CURIAM. REVERSED and the case is REMANDED with instructions that it be returned to the Social Security Administration for further proceedings consistent with this order.. William J. Bauer, Circuit Judge; Daniel A. Manion, Circuit Judge and Ann Claire Williams, Circuit Judge. [6637937-1] [6637937] [13-3275]
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 18, 2014
Decided January 29, 2015
Before
WILLIAM J. BAUER, Circuit Judge
DANIEL A. MANION, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 13‐3275
Appeal from the United States District
LINDA DURR‐IRVING, also
Court for Northern District of Illinois,
known as LINDA LEE IRVING,
Eastern Division.
Plaintiff‐Appellant,
No. 12 CV 5519
v.
CAROLYN W. COLVIN,
Young B. Kim,
Acting Commissioner of Social Security,
Magistrate Judge.
Defendant‐Appellee.
O R D E R
Linda Durr‐Irving is 57 years old and suffers from chronic obstructive pulmonary
disease, asthma, a surgically repaired torn rotator cuff, and urinary incontinence. She
appeals from a magistrate judge’s decision (by consent) upholding the denial of her
applications for Disability Insurance Benefits and Supplemental Security Income.
Durr‐Irving principally contends that the administrative law judge exaggerated her
residual functional capacity after ignoring her testimony and medical evidence
concerning her urinary incontinence. Because the ALJ failed to analyze the evidence of
Durr‐Irving’s urinary incontinence and thus neglected to factor that condition into her
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RFC, we reverse the magistrate judge’s decision and remand to the Social Security
Administration for further proceedings.
I.
Durr‐Irving was 51 when she applied for DIB and SSI in February 2009. She
alleged that she had become disabled eight months earlier, in June 2008, when she no
longer could work because of the combined effects of her chronic obstructive pulmonary
disease, asthma, and shoulder impairment, as well as hypertension and vocal‐cord
polyps. At the time she said nothing about urinary incontinence.
Durr‐Irving had worked from 1999 to 2005 as a packer and machine operator for
Turtle Wax, which makes products to protect and restore car exteriors. One day at work
in December 2002, Durr‐Irving tore her right rotator cuff while connecting a hose to a
pump. (The rotator cuff is a group of muscles and tendons surrounding the shoulder
joint that keep the upper arm bone in the shoulder socket, see Rotator Cuff Injury, Mayo
Clinic, http://www.mayoclinic.org/diseases‐conditions/rotator‐cuff‐injury/basics/
definition/con‐20031421 (last visited Dec. 1, 2014).) She had two surgeries for this injury,
the first a few months after it occurred and another a year and a half later. (A claim for
workers’ compensation resulted in a $9,000 settlement.) A month after the first surgery,
Durr‐Irving returned to work but under restrictions to use only her left hand and not lift
more than 10 pounds; by the fall of 2003 she was able to work without restrictions. The
pain returned, however, and in February 2004 her rehabilitation doctor restricted
Durr‐Irving to lifting no more than five pounds and no overhead activity. The second
surgery was performed by a different surgeon, who permitted Durr‐Irving to return to
work about two weeks later but restricted her to sedentary work without using her right
arm. By the end of the year, most of her work restrictions had been lifted, and she was
permitted to use her right arm to lift, push, and pull under 20 pounds, but she still could
not perform overhead lifting. She left Turtle Wax at the end of 2005, and a year later she
began working as a home aide for the elderly, assisting clients with grocery shopping,
doctor visits, light housework, and cooking.
Durr‐Irving also has a history of respiratory problems. She smoked up to two
packs of cigarettes a day for nearly three decades. She cut back in 2008 to a pack a week
because she was having difficulty breathing, and by 2010 she was smoking only “every
now and then.” Durr‐Irving struggles with chronic obstructive pulmonary disease and
asthma, which she controls with daily inhalers, and she has prescriptions for
corticosteroids to take as needed if she experiences wheezing, coughing, or other
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breathing problems. She also has hypertension, and on her vocal cords she developed
polyps (a mass of tissue projecting out from the normal surface level, see STEDMAN’S
MEDICAL DICTIONARY 1423 (27th ed. 2000)), which were removed in March 2009, shortly
after she applied for disability benefits.
When Durr‐Irving applied for disability benefits in early 2009, she reported that
her chronic obstructive pulmonary disorder, asthma, hypertension, and vocal‐cord
polyps limited her ability to work because she had trouble breathing and could not stand
or walk for long periods. She asserted that she could lift not more than five pounds and
could not walk more than half a block before needing to rest. She added that she
typically stayed in her room all day but regularly attended church and sometimes did
laundry and prepared lunch.
A state‐agency physician performed a consultative exam in June 2009. He
observed that Durr‐Irving sounded mildly hoarse and in her right shoulder exhibited
mild tenderness and a range of motion restricted by 10 degrees. He also opined that
Durr‐Irving’s chronic obstructive pulmonary disease, asthma, and blood pressure were
under control.
Later that month another state‐agency doctor, David Bitzer, conducted a second
consultative exam to assess Durr‐Irving’s residual functional capacity and concluded
that her reported symptoms were disproportionate to the medical evidence. Dr. Bitzer
observed that Durr‐Irving walked around the office without difficulty and wasn’t
wheezing. In his opinion she could lift 25 pounds frequently and 50 pounds
occasionally; sit, stand, or walk for a total of 6 hours each in an 8‐hour workday with
normal breaks; push and pull without limit; and occasionally reach overhead. He
recommended, though, that she work in well‐ventilated surroundings and avoid
concentrated exposure to fumes, odors, dusts, and gases.
The Social Security Administration initially denied benefits in June 2009.
Durr‐Irving moved for reconsideration, urging that her previously identified conditions
had worsened and adding that she recently had an abnormal mammogram and also
suffers from insomnia, a persistent cough, and swelling in her right knee. Durr‐Irving
also notified the Social Security Administration that she had changed her primary care
physician to Dr. Chukwudozie Ezeokoli. The denial of benefits was upheld on
reconsideration in October 2009, and Durr‐Irving requested a hearing before an ALJ.
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At this point Durr‐Irving still had not mentioned that urinary incontinence was
contributing to her inability to work. But she submitted to the ALJ medical records
documenting that she had been treated for urinary incontinence as early as 2001, while
she still worked at Turtle Wax. (Urinary incontinence occurs when the bladder leaks
with exertion or suddenly without warning, see Urinary Incontinence, U.S. Nat’l Lib. of
Med., MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/article/003142.htm (last
updated Nov. 7, 2014).) Those medical records show that Durr‐Irving had started
wearing adult diapers in 2005 to prevent leakage. In 2006 she had been diagnosed with a
mild drop of the bladder floor. Then in June 2010, after her applications for benefits had
been denied on reconsideration, a doctor at an outpatient clinic at Stroger Hospital
prescribed Detrol to treat her overactive bladder, see Detrol® LA, Pfizer,
http://www.detrolla.com/About‐Detrol‐LA (last visited Dec. 1, 2014). Durr‐Irving saw a
different doctor at a follow‐up appointment in August 2010, two months prior to her
hearing before the ALJ. During that second visit she reported no improvement: She was
using the bathroom every 30 minutes during the day and 5 to 10 times at night, leaking
urine when coughing, and changing her diaper 3 to 4 times a day. The doctor switched
her prescription to imipramine, an antidepressant that may be useful in treating
nighttime urinary incontinence, see Imipramine, U.S. Nat’l Lib. of Med., MedlinePlus,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682389.html (last visited Dec. 1,
2014). Durr‐Irving again reported no improvement when she returned to the clinic a
month later, so a third doctor tripled her daily dosage of imipramine.
At her hearing before the ALJ in October 2010, Durr‐Irving elaborated on the
extent of her ailments. She testified that she sleeps in her bedroom on the second floor of
her house. Although she stated that she has no difficulty walking up the stairs to the
bedroom, she also said that she can’t walk more than half a block without growing tired,
cannot stand for long periods, and becomes numb if she sits for too long. She confirmed
the medical records documenting urinary incontinence, for which she wears adult
diapers to prevent leaks between bathroom breaks every 30 minutes. But she
acknowledged that medication is helping. She also explained that she uses inhalers daily
to control her asthma, prescription medicines to control her blood pressure, and
over‐the‐counter pain medicine to treat her shoulder pain, for which she hadn’t seen a
doctor in at least two years. Durr‐Irving added that she was hospitalized for depression
three years earlier, but since then had not been treated for depression.
A vocational expert also testified. The ALJ inquired about the work available to a
hypothetical claimant of Durr‐Irving’s age, education (GED), and work experience who
is limited to unskilled tasks and can lift and carry 10 pounds frequently and 20 pounds
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occasionally, “stand and walk up to six hours in an eight hour day,” and reach
occasionally. The vocational expert said that the hypothetical person could work
Durr‐Irving’s past jobs as a packer or machine feeder. When the ALJ asked if those jobs
could be performed by someone who must have the option to sit or stand at will, the
vocational expert said no but added that jobs still would be available in the regional
economy as an office helper, cashier, or mail clerk. The vocational expert explained that a
person employed in the latter jobs could be off task 10% of the time in addition to normal
rest and break periods and could be absent one day each month. Durr‐Irving’s lawyer
followed up by asking whether a person who needed to use the bathroom more than five
minutes each hour could sustain those positions; the vocational expert replied no.
After the evidentiary hearing and before the ALJ issued a decision, Durr‐Irving
saw two more doctors, and she submitted treatment records for the ALJ to consider.
Durr‐Irving first saw her primary care physician of the last year, Dr. Ezeokoli, who she
had been visiting every two months. Durr‐Irving complained of worsening shortness of
breath with exertion. But the doctor’s examination revealed that Durr‐Irving’s chest was
clear, she breathed without wheezing, and she showed “no symptoms of heart failure
presently.” The doctor also noted that Durr‐Irving’s last pulmonary function tests had
not shown obstructive airway disease. Dr. Ezeokoli did prescribe an antidepressant for
her reported feelings of depression and hopelessness.
The next week Dr. Ezeokoli assessed Durr‐Irving’s residual functional capacity.
The doctor opined that Durr‐Irving could sit continuously for 45 minutes and for a total
of 2 hours in an 8‐hour workday, stand continuously for 30 minutes, but not walk and
stand for even 2 hours total during a workday. Dr. Ezeokoli added that Durr‐Irving
could occasionally twist, rarely bend, and never climb stairs or ladders. Finally, the
doctor estimated that Durr‐Irving’s impairments would cause her to miss work more
than four days a month and concluded that she was incapable of even “low stress” jobs
because she gets winded easily.
Durr‐Irving also visited Dr. Tondalaya Gamble, a urogynecologist (a gynecologist
who specializes in treating pelvic floor disorders, see Urogynecology, Advocate Ill. Masonic
Med. Ctr., http://www.advocatehealth.com/immc/urogynecology (last visited Dec. 1,
2014)). Dr. Gamble diagnosed Durr‐Irving with Stage II (of IV) pelvic organ prolapse,
meaning that the bladder, urethra, or another pelvic organ protrudes toward or slightly
through the opening of the vagina, frequently causing urinary problems,
see Vaginal/Pelvic Organ Prolapse, Cornell Urology, https://www.cornellurology.com/
clinical‐conditions/female‐urology‐urogynecology/vaginal‐prolapse/ (last visited Dec. 1,
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2014). The doctor cut in half Durr‐Irving’s daily dose of imipramine and reinstated her
prescription for Detrol.
The ALJ concluded, in a January 2011 decision, that Durr‐Irving is not disabled.
At Step 1 of the applicable 5‐step analysis, see 20 C.F.R. § 404.1520(a)(4), the ALJ found
that Durr‐Irving had not engaged in substantial gainful activity since June 2008. At
Step 2 the ALJ found that she suffers from asthma and “status post right rotator cuff
repair,” both impairments being severe. See 20 C.F.R. §§ 416.920(c), 404.1520(c). But the
ALJ also concluded that Durr‐Irving’s hypertension, vocal‐cord condition, urinary
frequency, and alleged depression were not severe alone or in combination because, the
ALJ said, these impairments did not cause more than minimal functional limitations. At
Step 3 the ALJ concluded that Durr‐Irving’s asthma and rotator‐cuff repair do not meet
or equal a listed impairment.
The ALJ then found that Durr‐Irving has the RFC to perform unskilled tasks in a
workplace free of concentrated airborne pollutants but with the following limitations:
She may miss one day of work monthly; be off task 10% of the time in addition to normal
breaks to account for fatigue, pain, and depressed mood; lift and carry 10 pounds
frequently and 20 pounds occasionally; sit for a total of 6 hours and stand or walk for a
total of 6 hours in an 8‐hour workday with the option to sit or stand at will; and
occasionally reach above the shoulder with her right arm. The ALJ declined to accept
Dr. Ezeokoli’s RFC assessment because, the ALJ reasoned, Durr‐Irving’s medical history
and the doctor’s treatment notes are inconsistent with his “extremely limiting opinion.”
The ALJ noted, for example, that just one week before giving this unfavorable RFC
assessment Dr. Ezeokoli had examined Durr‐Irving and identified “negative objective
findings” except for some tenderness in her right shoulder with otherwise “normal
power globally.” The doctor had also concluded that Durr‐Irving’s hypertension was
under control. On the other hand, the ALJ accepted the agency doctor’s determination
that Durr‐Irving could sit and stand or walk for 6 hours total. The ALJ discounted the
state‐agency doctor’s opinion that Durr‐Irving could lift 25 pounds frequently and 50
pounds occasionally, however, and credited instead her orthopedic surgeon’s
most‐recent assessment that she could lift 10 pounds frequently and 20 pounds
occasionally.
As for Durr‐Irving’s credibility, the ALJ declared that her testimony about the
extent of her symptoms was not credible because it did not match the ALJ’s own RFC
assessment. In the ALJ’s view her testimony about her right shoulder pain—which she
contended limits her mobility—was not credible because she had not been treated for
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that condition in the last two years and uses only over‐the‐counter medication to temper
the pain. The ALJ also discounted Durr‐Irving’s testimony that pain prevents her from
standing or walking for prolonged periods because “little objective medical evidence”
corroborates this testimony.
Given the ALJ’s RFC assessment, at Step 5 the ALJ concluded that Durr‐Irving
could not perform her past relevant work. But, relying on the vocational expert’s
testimony, the ALJ concluded that Durr‐Irving could work as an office helper, a cashier,
or a mail clerk.
II.
Because the Appeals Council denied review, we evaluate the ALJ’s decision as the
final word of the Commissioner of Social Security. See Schomas v. Colvin, 732 F.3d 702, 707
(7th Cir. 2013); Shauger v. Astrue, 675 F.3d 690, 695 (7th Cir. 2012).
Durr‐Irving contends on appeal that the ALJ erred by failing to adequately
consider the disabling effect of her urinary incontinence and whether she would need
any additional off‐task time at work. This error is material, Durr‐Irving adds, because
the vocational expert testified that a person who needs a bathroom break every half
hour, as Durr‐Irving testified, could not sustain full‐time employment with her other
limitations.
We agree with Durr‐Irving that, given the medical evidence, her testimony, and
the vocational expert’s opinion, the ALJ was required to discuss why the testimony and
medical evidence concerning Durr‐Irving’s urinary incontinence did not affect the ALJ’s
RFC assessment. “Although an ALJ need not mention every snippet of evidence in the
record, the ALJ must connect the evidence to the conclusion” and cannot “ignore entire
lines of contrary evidence.” Arnett v. Astrue, 676 F.3d 586, 592 (7th Cir. 2012); see Moore v.
Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014); Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir.
2010). Here, the ALJ recounted Durr‐Irving’s testimony about how frequently she uses
the bathroom and experiences bladder leakage but said nothing about that testimony
when analyzing Irving’s impairments; the ALJ didn’t discredit the testimony but instead
ignored it altogether. Moreover, as Durr‐Irving points out, the ALJ did not mention the
medical records from her urogynecologist, who diagnosed Durr‐Irving with Stage II
pelvic organ prolapse. This evidence is highly relevant because the vocational expert
testified that a person who must use the restroom more than once an hour would be
unable to perform the few jobs that met the ALJ’s assessment of Durr‐Irving’s RFC.
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Because the ALJ did not discuss whether Durr‐Irving’s testimony about her urinary
incontinency was credible or what significance, if any, the recent diagnosis of pelvic
organ prolapse would have on her ability to sustain full‐time employment, the ALJ did
not adequately consider Durr‐Irving’s impairments. See Arnett, 676 F.3d at 592.
The Commissioner counters that any error was harmless because Durr‐Irving’s
medical records show that she experienced urinary problems while she worked full‐time
at Turtle Wax, so the ALJ reasonably could have concluded that Durr‐Irving’s urinary
incontinence was a longstanding problem that didn’t prevent her from working. But this
reasoning is nowhere in the ALJ’s decision, and the Commissioner, by otherwise
speculating about the ALJ’s thinking, yet again violates doctrine of SEC v. Chenery Corp.,
318 U.S. 80 (1943) (limiting judicial review of agency proceeding to grounds identified in
agency’s decision). See Hanson v. Colvin, 760 F.3d 759, 762 (7th Cir. 2014) (collecting cases
criticizing Commissioner for violating Chenery doctrine and warning that practice is
sanctionable). In any event, even if that reasoning would have sufficiently justified
discounting the disabling nature of Durr‐Irving’s problem, it would not justify entirely
ignoring her testimony and Dr. Gamble’s diagnosis. See Golembiewski v. Barnhart, 322 F.3d
912, 917 (7th Cir. 2003) (“Evidence that Golembiewski’s bladder impairments did not
interfere with his work … would be a reason for the ALJ to discount the disabling nature
of the problem, but it would not justify ignoring the problem entirely.”); Crowley v. Apfel,
197 F.3d 194, 198–99 (5th Cir. 1999) (concluding that incontinence is impairment under
Social Security Act that Commissioner must consider in determining whether claimant is
disabled). This potential error would be harmless if we could predict with great
confidence that the result on remand would be the same. See McKinzey v. Astrue, 641 F.3d
884, 892 (7th Cir. 2011); Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010). But given the
medical evidence documenting Durr‐Irving’s worsening condition—a relevant
consideration, see Clifford v. Apfel, 227 F.3d 863, 871 (7th Cir. 2000)—and the vocational
expert’s conclusion that Durr‐Irving could not sustain full‐time employment if she
requires frequent bathroom breaks, we cannot conclude that the result would be the
same. Moreover, the impact of Durr‐Irving’s urinary incontinence, in combination with
her other impairments detailed above, is critical to her claim and must be addressed by
the ALJ. See SSR 96‐8p; Yurt v. Colvin, 758 F.3d 850, 860 (7th Cir. 2014).
III.
For the foregoing reasons, the judgment affirming the denial of benefits is
REVERSED, and the case is REMANDED with instructions that it be returned to the
Social Security Administration for further proceedings consistent with this order.
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