Bush v. Astrue
Filing
15
ORDER & OPINION Entered by Judge Joe Billy McDade on 10/25/2011. IT IS THEREFORE ORDERED that Plaintiff's Motion for Summary Judgment 10 is GRANTED IN PART AND DENIED IN PART, and Defendant's Motion for Summary Affirmance 13 is DENIED. The decision of the Commissioner of Social Security is REVERSED and this case is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for a determination of Bush's RFC for the period between December 23, 2006 and January 28, 2008. The ALJ SHALL also determine whether Bush was disabled during all or part of the entire alleged period of disability by assessing whether jobs existed in the national economy that Bush could have performed. CASE TERMINATED. (RP, ilcd)
E-FILED
Tuesday, 25 October, 2011 04:04:27 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
KACY BUSH, on behalf of J.B., a minor, )
and K.B., a minor,
)
)
Plaintiff,
)
)
)
v.
)
MICHAEL J. ASTRUE,
)
)
COMMISSIONER OF SOCIAL
SECURITY,
)
)
Defendant.
)
Case No. 10-cv-1382
ORDER & OPINION
This matter is before the Court on Plaintiff’s “Brief in Support of Claimant,”
which the Court construes as Plaintiff’s Motion for Summary Judgment, and
Defendant’s Motion for Summary Affirmance. (Docs. 10 & 13). For the reasons
stated below, Plaintiff’s Motion for Summary Judgment is granted in part and
denied in part, and Defendant’s Motion for Summary Affirmance is granted in part
and denied in part.
PROCEDURAL HISTORY
Plaintiff’s decedent, John Bush, alleged that he was disabled by injuries to
his right knee, left shin, and left ankle in a December 23, 2006 car accident.1 (Tr.
702, 714). He claimed disability benefits on January 4, 2007, with an onset date of
John Bush was the original claimant, and it is his disability determination
that is at issue here. He was killed in a car accident after the denial of his disability
claim but prior to the filing of the instant appeal, and his ex-wife Kacy Bush was
substituted on behalf of their minor children, J.B. and K.B., in November 2010.
(11/29/2010 Text Order; Doc. 10 at 20).
1
December 23, 2006. (Tr. 14). The Social Security Administration denied his
application initially and on appeal. (Tr. 24). Administrative Law Judge Joseph
Warzycki held a hearing in the matter on March 2, 2009, and found that Bush was
not disabled. (Tr. 697-728, 14-21). Following a denial of Bush’s request for review by
the Appeals Council on September 23, 2010, Plaintiff filed the instant appeal
pursuant to 42 U.S.C. § 405(g) on November 19, 2010. (Tr. 4-6; Doc. 1).
RELEVANT MEDICAL HISTORY
Bush injured his head, right arm, and right leg in a car accident on December
23, 2006, and remained in the hospital until January 5, 2007. (Tr. 116). Dr. Ronald
Wheeler, an orthopedic surgeon, performed several surgeries to repair his arm and
leg while he was in the hospital initially, and remained his treating physician. (Tr.
117-212). On January 18, 2007, Bush reported to Dr. Wheeler that he was
increasing his activity level, and was using a walker and a wheelchair. (Tr. 211). By
February 1, 2007, he was using a forearm walker, and Dr. Wheeler had him begin
an occupational therapy program. (Tr. 212, 227-29). On April 12, 2007, Bush’s range
of motion in his right arm was quite good, though on May 24, 2007, Dr. Wheeler
noted that his right knee had a restricted range of motion. (Tr. 216-17).
On May 14, 2007, Dr. Ernst Bone, a state agency consultant, completed a
Physical Residual Functional Capacity Assessment of Bush based on his medical
records. (Tr. 316-23). Dr. Bone found that Bush could occasionally lift or carry 20
pounds, frequently lift or carry 10 pounds, stand and walk a total of six hours a day,
sit about six hours a day, and push or pull limited only to the extent described in his
ability to lift and carry. (Tr. 317). He found that there were no established postural,
2
manipulative, visual, communicative, or environmental limitations. (Tr. 318-20).
Reviewing Bush’s medical records for the first few months after the accident, Dr.
Bone determined that Bush would be able to work by December 23, 2007, within a
year of the accident. (Tr. 323). On June 2, 2007, Dr. Wheeler, apparently responding
to the denial of benefits based on Dr. Bone’s assessment, wrote a letter challenging
the determination that Bush would be able to engage in sedentary work by
December 23, 2007. (Tr. 218-19). Dr. Towfig Arjmand, another state agency
consultant, reviewed Bush’s records on August 9, 2007, and confirmed Dr. Bone’s
May 14, 2007 assessment, stating that, in spite of Dr. Wheeler’s June letter, the
“medical evidence does not show [that Bush will be disabled longer than 12 months]
at this time.” (Tr. 324-26).
In July 2007, Bush had a “marked improvement” in his ankle’s range of
motion, and reported only “some discomfort on occasion in the leg;” his knee’s range
of motion was still problematic (Tr. 350, 352). Later that month, Dr. Wheeler
reported that Bush’s range of motion in his knee and ankle were improving. (Tr.
348). At that time, Bush was exercising and had some pain in the morning and
afternoon, and Dr. Wheeler recommended that he progress to full weight bearing on
his right leg. (Tr. 348). In August 2007, Bush was still exercising and increasing his
activities, and was in less discomfort. (Tr. 347). Bush’s October 2007 visit with Dr.
Wheeler found him “doing fairly well,” with “no particular discomfort in the
forearm;” Dr. Wheeler again recommended that he bear full weight on his right leg.
(Tr. 346, 374). In December 2007, Bush was again “doing fairly well” and
“increasing his activities,” and Dr. Wheeler made arrangements for what was
3
expected to be Bush’s last leg surgery other than a possible arthroscopy and
takedown of scar tissue on the knee. (Tr. 344, 372).
After a January 18, 2008 surgery, Bush saw Dr. Wheeler on January 28, and
was given a note to return to a modified work program. (Tr. 669, 340). In March
2008, Bush was “doing fairly well.” (Tr. 339). In April, Dr. Wheeler noted that Bush
was doing fairly well, had been increasing activities, and had not yet returned to
work; Dr. Wheeler recommended that he intensify his activities and return to work
in a “nonwork foreman-type position if available.” (Tr. 338). In July 2008, though,
Bush’s range of motion in his knee had deteriorated, and he had some pain in the
knee. (Tr. 337). Bush was admitted for arthroscopy to address the buildup of scar
tissue that was restricting his knee’s range of motion in late August 2008. (Tr. 33536, 617-28). On September 3, 2008, Bush was taken by ambulance to the hospital
with “intolerable post operative knee pain,” but was doing much better by
September 8. (Tr. 396, 332). Bush reported feeling “much better” in October, though
he had no particular improvement in motion. (Tr. 329). Dr. Wheeler noted that he
was walking without crutches and recommended that he continue to do so. (Tr.
329). By December 2008, Bush’s right knee’s mobility and strength were improved,
and in February 2009 he was “not too bad as far as pain is concerned,” with “more
agility, more strength.” (Tr. 327-28).
On February 22, 2009, Dr. Wheeler completed an assessment of Bush’s
ability to work at the request of the Social Security Administration. (Tr. 382-84). He
opined that Bush, when engaging in sedentary work, would need several
unscheduled rest periods or “any change in position of [right] knee even more
4
frequently,” and would need to have the option of alternating between sitting and
standing at will. (Tr. 383-84). Dr. Wheeler felt that Bush would have frequent
and/or unpredictable absences from work due to his symptoms. (Tr. 383). He
estimated that Bush would be able to lift, push, or pull ten pounds or less, and could
stand or walk between zero and two hours a day. (Tr. 384). Bush “occasionally” used
a cane or other assistive device to walk, according to Dr. Wheeler. (Tr. 384). He also
reported that Bush would have no problem maintaining sustained attention and
concentration, and that he could work with his arms constantly. (Tr. 383).
HEARING TESTIMONY
Bush,
represented
by
his
(now
Plaintiff’s)
attorney,
appeared
via
videoconference at a hearing on March 2, 2009, and testified as to his alleged
disability before Administrative Law Judge Joseph Warzycki (“ALJ”). (Tr. 695-728).
Vocational expert Dr. Magroski also appeared and gave testimony. (Tr. 723-27).
Bush testified that he lived in a one and a half story house, which required
climbing three steps to enter. (Tr. 699-700). He lived there alone, except for when
his two young daughters visited him every other weekend. (Tr. 700). Bush only
drove to the store or to therapy. (Tr. 700). He was currently getting disability
payments through his union, as well as food stamps, and was on Medicaid; he had
collected unemployment benefits for six months, two years previously. (Tr. 701).
Bush had graduated from high school, and had completed a three-year iron worker
apprenticeship. (Tr. 702). He had worked for ten years as an iron worker, doing
steel erection work. (Tr. 703). He had to work at heights in his previous work, and
welded. (Tr. 704). Bush’s previous work was very heavy work: he lifted 50-70
5
pounds on occasion. (Tr. 704). In the early 1990s, Bush worked as a laborer and
concrete finisher. (Tr. 704-05).
Bush had last worked on December 22, 2006, the day before the car accident.
(Tr. 702). He had not attempted to work since that time, and had not applied to
work anywhere, as he felt that he could not work. (Tr. 703). Bush testified that he
had a lot of pain in his leg when he works for any length of time, and that he then
had to elevate it about six inches while sitting or lying down. (Tr. 703).
Following the car accident, Bush was in the hospital for two weeks, then had
a cast on his arm and a brace on his leg for at least six or seven months. (Tr. 703).
Since then, he had had several surgeries to remove scar tissue and to gradually
remove hardware, though he indicated that the injury “seems to be healing up,” and
that his doctor had not wanted to schedule another surgery at his most recent visit.
(Tr. 713). However, “nothing has really healed up completely yet.” (Tr. 714). Bush
had limited mobility in his right arm, but could reach out and reach above his head.
(Tr. 714). His hands were unaffected, though he sometimes had pain turning his
wrist. (Tr. 714-15). In addition to his physical injuries, Bush stated that his memory
and concentration had been impaired after the accident, though doctors had
examined him and found nothing wrong. (Tr. 715-17).
The ALJ asked Bush about his daily activities. (Tr. 706). Bush testified that
he did his own laundry, cooking, dishes, bed-making, and housecleaning, though he
took breaks to rest his leg. (Tr. 706). Bush also testified that he did his own grocery
shopping, and could carry his grocery bags using his left arm. (Tr. 706). He had
placed a shower stool to use in his shower after experiencing a couple of falls. (Tr.
6
711). Most of his days were spent watching television, and he did some physical
therapy and housework at home. (Tr. 707). Bush’s physical therapy involved
bending his leg as much as possible, as well as using 10-15 pound weights on his
knee, three to five times a day. (Tr. 707).
When Bush’s daughters were with him for visitation every other weekend, he
typically sat and watched them; he didn’t do much with them. (Tr. 708). Bush’s
parents took his daughters to church on Sundays, as it was too difficult for him to
bend his knee in church. (Tr. 709). Sometimes his friends would visit or get him out
of the house. (Tr. 709). Bush’s father or nephew typically mowed his lawn, as he
couldn’t bend his knee to get on the riding mower; Bush also testified that he
generally mowed the lawn every couple of weeks. (Tr. 709-10). He testified that he
was no longer able to continue his hobbies of gardening and hunting, though he did
sometimes attempt to weed the garden. (Tr. 710). Bush had last gone fishing over
two years previously, and had last camped more than three years previously. (Tr.
711).
Bush testified that he was currently taking Zoloft and Xanax. (Tr. 712). Both
were prescribed for depression, anxiety attacks, and chest pains. (Tr. 712). Bush
had previously taken Ativan for anxiety. (Tr. 712). These medications made him feel
tired. (Tr. 715). Bush’s depression had existed since the accident; he had suicidal
thoughts and two or three panic attacks. (Tr. 716). Since he had been on medication,
he no longer cried often, and his anxiety attacks had lessened, though he felt that
they were beginning to recur. (Tr. 716). Bush had never been in a mental hospital,
and was not under the care of a psychiatrist or psychologist. (Tr. 716).
7
When the ALJ inquired as to how far Bush could walk, he testified that he
could not walk very far, with the perimeter of his three and a half acre lot being the
maximum distance. (Tr. 717). Bush had no problem sitting in a chair, but indicated
that he eventually needs to elevate his leg, as it begins to ache from his knee down
to his ankle; he could put his leg up on a desk to elevate it while in a chair. (Tr.
717). He testified that he could stand for a maximum of a half-hour. (Tr. 717). Bush
could lift 10-20 pounds with his right arm, though it hurt; he indicated no limitation
on the amount he could lift with his left arm. (Tr. 718). He could not stoop, crouch,
kneel, or crawl, though he could pick up an item that fell to the floor by moving to
sit on the floor. (Tr. 718). To climb stairs, Bush typically held on to the railing and
hopped on his good leg. (Tr. 718). The ALJ noted that Bush’s doctor had noted in
April of 2007 that his arm was stable and the forearm was quite good, and Bush
stated that his condition had not deteriorated. (Tr. 718) However, Bush believed
from the most recent X-rays that his arm and leg were not yet healed. (Tr. 718).
Upon questioning by his attorney, Bush described the surgeries that he had
had since April 2007. (Tr. 719). He testified that he can engage in an activity for a
half-hour before he had to rest and elevate his leg. (Tr. 719). Bush testified that for
the first year after the accident, he used crutches or a wheelchair 90% of the time;
he could bear weight on the leg for about two months of the year. (Tr. 719). He
reported that he used crutches or a wheelchair about 10 months of the second year
after the accident. (Tr. 720). He currently only had to use crutches or a wheelchair if
he had over-exerted himself. (Tr. 722). He testified that, as long as he could control
his pain by elevating his leg, he did not take pain medication, except for limited
8
periods after surgeries. (Tr. 720). Bush would elevate his leg for a half-hour after an
hour of work in order to relieve his pain. (Tr. 721). He testified that if he did not
elevate his leg, the pain would increase to the level of eight or nine on a scale of ten.
(Tr. 722). Bush attended hour-and-a-half physical therapy sessions three times a
week, after which he had to elevate his leg. (Tr. 720-21). However, he had recently
stopped attending the sessions, as the physical therapist felt that it was not
improving his mobility. (Tr. 721). Bush’s doctor planned to perform more surgeries
on his arm and leg, after which he would return to physical therapy. (Tr. 722). The
ALJ questioned Bush about his statement that he didn’t take pain medication, to
which Bush replied that he didn’t “like taking too much of those or anything like
that,” and that pain medication also was hard on his stomach, so he preferred to
elevate his leg to handle the pain. (Tr. 723).
The ALJ then questioned the vocational expert, Dr. Magroski. (Tr. 724). Dr.
Magroski described Bush’s previous work. (Tr. 725). The ALJ then asked Dr.
Magroski whether a person of Bush’s age, education, and work experience, who
could perform only sedentary work with only occasional climbing, balancing,
stooping, crouching, kneeling, or crawling, and only occasional ladders, ropes,
scaffolds, moving machinery, and unprotected heights could perform any of the
work that Bush had previously performed or would have any transferable work
skills. (Tr. 725-26). Dr. Magroski answered that such a person could not perform
any of Bush’s previous work and would not have any transferable work skills. (Tr.
726).
9
Dr. Magroski then testified that an individual like the one described in the
hypothetical could perform unskilled, sedentary work, such as an order clerk, a
charge account clerk, and an assembler. (Tr. 726). Upon questioning by Plaintiff’s
attorney, Dr. Magroski testified that these and all other jobs would be unavailable
to the hypothetical employee if he also needed to take several unscheduled rest
periods of at least 10 to 15 minutes, during which he would need to lie down,
recline, or elevate his leg. (Tr. 727).
ALJ’S DECISION
The ALJ issued his decision on April 9, 2009, denying Plaintiff’s claim for
benefits. (Tr. 14-21). In doing so, he utilized the five-step sequential evaluation
process common to Social Security benefits determinations. 20 C.F.R. 404.1520(a).
The steps are: (1) whether Plaintiff is engaged in substantial gainful activity, 20
C.F.R. 404.1520(b); (2) whether Plaintiff has a medically determinable impairment
that is “severe” or a combination of impairments that are “severe,” 20 C.F.R.
404.1520(c); (3) whether Plaintiff’s impairments or combination of impairments
meets or medically equals the criteria of an impairment, 20 C.F.R. 404.1520(d); (4)
whether Plaintiff has the Residual Functional Capacity (RFC) to perform the
requirements of his past relevant work, 20 C.F.R. 404.1520(f); and (5) whether
Plaintiff is able to do any other work considering his: RFC, age, education, and work
experience, 20 C.F.R. 404.1520(g). If it is determined that Plaintiff is or is not
disabled at any step of the evaluation process, the evaluation does not go on to the
next step. (Doc. 4 at 12).
10
After generally reviewing Bush’s medical history and testimony, the ALJ
found that Bush had one or more “severe” impairments, but that none of them,
either alone or in combination, met or equaled the severity of one of the Listings of
impairments in Appendix 1 to Subpart P of Part 404 in Title 20 of the Code of
Federal Regulations. (Tr. 16). The ALJ then more-particularly described Bush’s
treatment history and Dr. Wheeler’s opinions, and determined that Bush was not
able to perform any of his past relevant work, which was “heavy” in exertional level,
and that he had no usable transferable skills. (Tr. 17). The ALJ found that Bush
had the RFC to perform sedentary work allowing lifting and carrying of 10 pounds
frequently and 20 pounds occasionally, but not requiring climbing of ropes, ladders,
or scaffolds; no more than occasional climbing of ramps and stairs, balancing,
stooping, kneeling, crouching, or crawling; and not having concentrated or excessive
exposure to unprotected heights or dangerous moving machinery. This RFC would
include only occasional walking and standing. (Tr. 17).
The ALJ then noted that the vocational expert had testified that an RFC with
these limitations would allow Bush to work in a substantial number of jobs. (Tr. 18).
The vocational expert had testified, upon questioning by Plaintiff’s attorney, that
these jobs would be eliminated if Bush had to take additional unscheduled breaks to
elevate his leg. However, the ALJ determined that there was no documented need
to take these breaks to elevate his leg, and so this was not a necessary limitation on
Bush’s RFC. (Tr. 18).
The ALJ explained that, while the opinion of a treating physician is normally
entitled to great weight, he did not give such weight to Dr. Wheeler’s June 2, 2007
11
and February 22, 2009 assessments of Bush’s abilities, as they were inconsistent
with Dr. Wheeler’s own treating records. Further, these assessments were
undermined by the facts that Bush was exercising by July 2007, was walking
without crutches after additional surgery in October 2008, had never used crutches
for months at a time, and had received unemployment benefits after his accident.
The last fact, though not conclusive proof of ability to work, was “inconsistent with
the allegation of disability because to qualify for such benefits a claimant must
legally assert that he is willing and able to work.” (Tr. 18). The ALJ further noted
that Bush had no significant, uncontrollable side effects from his medication, that
he took no prescription pain medication at the time of the hearing, that he engaged
in “a fair range of normal activities,” that he had no documented evidence of
nonexertional pain that affected Bush’s ability to concentrate, and that Dr. Wheeler
had not instructed Bush that he still needed to elevate his legs as often as Bush
claimed. (Tr. 18-19). Finally, the ALJ found, based on the absence of any record
evidence, that Bush had no “credible, medically-established mental or mood
disorder that would prevent him from doing ordinary work.” (Tr. 19).
The ALJ concluded that, in light of all of these considerations, Bush’s
allegations of disabling impairments were not credible, and that there had never
been a continuous 12-month period during which Bush could not have performed
sedentary work within his RFC. (Tr. 19). As he could have performed such work,
and as such work existed in sufficient numbers in the national economy, according
to the vocational expert, Bush was not disabled.
12
STANDARD OF REVIEW
To be entitled to disability benefits under the Social Security Act, a claimant
must prove that he is unable to “engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment.” 42 U.S.C. §
423(d)(1)(A). To determine if the claimant is unable to engage in any substantial
gainful activity, the Commissioner of Social Security engages in a factual
determination. See McNeil v. Califano, 614 F.2d 142, 143 (7th Cir. 1980). That
factual determination is made by using a five-step sequential analysis. 20 C.F.R. §§
404.1520, 416.920; see also Maggard v. Apfel, 167 F.3d 376, 378 (7th Cir. 1999).
In the first step, a threshold determination is made to decide whether the
claimant is presently involved in a substantially gainful activity. 20 C.F.R. §§
404.1520(a)(i), 416.920(a)(i). If the claimant is not under such employment, the
Commissioner of Social Security proceeds to the next step. At the second step, the
Commissioner evaluates the severity and duration of the impairment. 20 C.F.R. §§
404.1520(a)(iii), 416.920(a)(iii). If the claimant has an impairment that significantly
limits his physical or mental ability to do basic work activities, the Commissioner
will proceed to the next step. At the third step, the Commissioner compares the
claimant’s impairments to a list of impairments considered severe enough to
preclude any gainful work; and, if the elements of one of the Listings are met or
equaled, he declares the claimant eligible for benefits. 20 C.F.R. §§ 404.1520(a)(iv),
416.920(a)(iv).
If the claimant does not qualify under one of the listed impairments, the
Commissioner proceeds to the fourth and fifth steps. At the fourth step, the
13
claimant’s RFC is evaluated to determine whether the claimant can pursue his past
work. 20 C.F.R. §§ 404.1520(a)(iv), 416.920(a)(iv). If he cannot, then, at step five,
the Commissioner evaluates the claimant’s ability to perform other work available
in the economy. 20 C.F.R. §§ 404.1520(a)(v), 416.920(a)(v). The claimant has the
burden to prove disability through step four of the analysis, i.e., he must
demonstrate an impairment that is of sufficient severity to preclude him from
pursuing his past work. McNeil, 614 F.2d at 145. However, once the claimant shows
an inability to perform his past work, the burden shifts to the Commissioner, at
step five, to show the claimant is able to engage in some other type of substantial
gainful employment. Id.
Once a case reaches a federal district court, the court’s review is governed by
42 U.S.C. § 405(g), which provides, in relevant part, “The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence,
shall be conclusive.” Substantial evidence is “such evidence as a reasonable mind
might accept as adequate to support a conclusion.”
Maggard, 167 F.3d at 379
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In a substantial evidence
determination, the Court will review the entire administrative record, but it will
“not reweigh the evidence, resolve conflicts, decide questions of credibility, or
substitute [its] own judgment for that of the Commissioner.” Clifford v. Apfel, 227
F.3d 863, 869 (7th Cir. 2000). The Court must ensure that the Commissioner
“build[s] an accurate and logical bridge from the evidence to his conclusion,” even
though he need not have addressed every piece of evidence. Id. at 872.
14
DISCUSSION
Plaintiff argues that the ALJ erred in four ways: (1) failing to accord
adequate weight to the opinion of Bush’s treating physician, Dr. Wheeler; (2)
making a patently erroneous credibility finding; (3) failing to support his RFC
finding with substantial evidence; and (4) failing to pose a hypothetical to the
vocational expert that included the limitations that are documented in the record.
(Doc. 10 at 8).
1.
Weight given to opinion of treating physician
Plaintiff complains of the fact that the ALJ did not give controlling weight to
Dr. Wheeler’s opinion, given in June 2007 and February 2009, that Bush was
unable to engage in sedentary work. His primary reason for determining that Dr.
Wheeler’s opinion was not due controlling weight was that it was “inconsistent with
his own clinical treatment records, which do not show fractures of the kinds of
intense duration contemplated by Section 1.06 and 1.07 of Appendix 1, and which
do show fairly progressive interval healing of all fractures.”2 (Tr. 18). The ALJ also
appears to have relied on the facts that also support both his RFC assessment and
his finding that Bush was not credible, which are further discussed below.
First, the ALJ noted that Dr. Wheeler’s treating notes and tests indicate that
Bush’s fractures would not meet the requirements of Listings 1.06 and 1.07 of
Appendix 1, and that they showed “fairly progressive healing” – to the ALJ, this
Defendant states that Dr. Wheeler’s June 2007 and February 2009 opinions
were given “simultaneously” with Dr. Wheeler giving Bush work release notes. (Doc.
14 at 6). On the contrary, the work releases cited by Defendant were given in
January and April of 2008. (Tr. 340 & 338). At the least, Dr. Wheeler’s June 2007
opinion that Bush would not be able to work until sometime after December 23,
2007 is consistent with his advice to Bush himself.
2
15
rendered them inconsistent with Dr. Wheeler’s June 2007 and February 2009
assessments of Bush’s ability to work. (Tr. 18). The fact that a Listing’s severity is
not met or equaled does not mean that a claimant can work, though; a claimant can
be unable to work even though his impairments do not meet the requirements of a
Listing. The finding that Dr. Wheeler’s notes do not show Bush to have met a
Listing therefore does not reasonably undermine Dr. Wheeler’s opinion that Bush
could not meet the requirements of sedentary work, as those two findings result
from separate analyses.3
The Court agrees with the ALJ’s assessment of Dr. Wheeler’s opinion as to
the period beginning January 28, 2008. On that date, Dr. Wheeler gave Bush a note
allowing him to return to a modified work program. Throughout 2008 and up to the
March 2, 2009 hearing, Bush’s condition appears from the record to have been much
improved, though he had a setback, from which he quickly recovered, in the late
summer of 2008; after an August 22, 2008 surgery, Dr. Wheeler’s notes indicate
that he was again walking without crutches by October. In order to grant benefits,
there must be a continuous 12-month period of disability, which did not exist after
On the other hand, Plaintiff argues, almost as an afterthought, that Bush
“might” have met Listing 1.06. (Doc. 10 at 14). Under 20 C.F.R. §§ 404.1526(e) and
416.926(e), the question of whether a Listing is met or equaled is a legal issue
reserved to the ALJ, and it is Plaintiff’s burden to show that his impairment meets
or equals the requirements of a Listing. Ribaudo v. Barnhart, 458 F.3d 580, 583
(7th Cir. 2006) (citing Maggard, 167 F.3d at 380). Listing 1.06 requires both that
there is no evident “[s]olid union…on appropriate medically acceptable imaging,”
and an “[i]nability to ambulate effectively” for at least 12 continuous months. As the
Court does not have the medical images and would not be qualified to review them
even if it did, it cannot address the first element, but, reviewing the medical
records, there was no continuous 12-month period after December 23, 2006 during
which Bush was unable to ambulate effectively, as defined by Listing 1.00(B)(2)(b).
The use of a single cane does not indicate an inability to ambulate effectively.
3
16
January 28, 2008. Even Dr. Wheeler’s advice to Bush beginning in January 2008
was that he increase his activity, progress to bearing his full weight on his legs,
and, significantly, return to work. Dr. Wheeler’s advice from that point on was
inconsistent with Dr. Wheeler’s stated opinion that Bush could not work. This
inconsistency, coupled with the substantial evidence the ALJ had to determine that
Bush had an RFC allowing sedentary work after January 2008, discussed below,
was sufficient to allow the ALJ to reject Dr. Wheeler’s opinion that Bush could not
work.
Between December 23, 2006 and January 27, 2008, though, there is nothing
that directly contradicts Dr. Wheeler’s opinion that Bush was unable to meet the
requirements of sedentary work, aside from Dr. Bone’s RFC assessment in 2007.
Though Dr. Bone’s opinion was entitled to weight as that of a state agency
physician, the opinion of a doctor who examines and treats the patient is entitled to
more weight than the opinion of a doctor who does not. 20 CFR § 404.1527(d). Even
if Dr. Wheeler’s opinion was not entitled to controlling weight because of the conflict
with Dr. Bone’s opinion, it is clear that it should be given more weight than Dr.
Bone’s. All of the relevant factors used in assessing the weight to be given to a
treating physician’s opinion, including the nature of the treatment relationship, the
frequency of examination, the physician’s specialty, the type of tests performed, and
the reliability of the opinion point in Dr. Wheeler’s favor. 20 CFR § 404.1527(d)(2).
As further discussed below, the record evidence also indicates that Dr. Wheeler’s
assessment of Bush’s condition from December 23, 2006 through 2007 was worthy
of acceptance.
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2.
ALJ’s evaluation of Bush’s credibility
The Court will not disturb an ALJ’s credibility findings “so long as they find
some support in the record and are not patently wrong.” Herron v. Shalala, 19 F.3d
329, 335 (7th Cir. 1994). Here, the ALJ did not find Bush’s description of his
inability to work and need to take breaks to be credible, to the extent that it was
inconsistent with the ALJ’s RFC determination. As reasons for his credibility
finding, the ALJ cited Bush’s application for and receipt of unemployment benefits
immediately following his accident, the fact that Bush was not taking pain
medication at the time of the hearing and that he did not suffer any uncontrollable
side effects from any medications, the record’s demonstration of Bush’s ability to
walk with only occasional assistance from a cane or other assistive device, Bush’s
engaging in “a fair range of normal activities,” and the fact that there is no evidence
that Dr. Wheeler instructed Bush to frequently elevate his leg for long periods of
time. Each of these reasons is supported by the record and is a reasonable basis for
discounting Bush’s allegations.
The Court agrees with the ALJ that an application for unemployment
benefits is “inconsistent with the allegation of disability because to qualify for such
benefits a claimant must legally assert that he is willing and able to work.” (Tr. 18).
See Barrett v. Shalala, 38 F.3d 1019, 1024 (8th Cir. 1994) (“[I]n order to be eligible
for unemployment benefits, Barrett was required to sign documents stating that he
was capable of working and seeking work. This statement is clearly inconsistent
with Barrett’s claim of disability during the same period.”). Further, in July 2007,
even Dr. Wheeler felt that Bush should progress to fully bearing weight on his
18
injured leg, negating the claim that he was medically required to use an assistive
device during that period. (Tr. 348). In addition, the Court has reviewed the record,
and, like the ALJ, finds no indication that Dr. Wheeler told Bush to frequently
elevate his leg for extended periods of time; indeed, there is no indication that Bush
told Dr. Wheeler that he was dealing with his pain in this way, or even that he was
experiencing such frequent episodes of pain.4 The ALJ’s observations that Bush was
not taking pain medication and that he engaged in “a fair range of normal
activities” at the time of the hearing are only applicable to the period of time
surrounding the hearing itself, but do buttress the ALJ’s determination that Bush’s
testimony as to the disabling nature of his symptoms was not credible. Thus, the
ALJ decision to discredit Bush’s testimony was not patently erroneous.
3.
ALJ’s RFC determination
The ALJ found that Bush had the RFC to perform sedentary work allowing
lifting and carrying of 10 pounds frequently and 20 pounds occasionally, but not
requiring climbing of ropes, ladders, or scaffolds; not doing more than occasional
climbing of ramps and stairs, or balancing, stooping, kneeling, crouching, or
crawling; not having concentrated or excessive exposure to unprotected heights or
dangerous moving machinery; and requiring only occasional walking and standing.
(Tr. 17). As explained above, the Court finds that the ALJ was not justified in
discounting Dr. Wheeler’s opinion for the period between December 23, 2006 and
Plaintiff argues that Dr. Wheeler did not make note of this instruction
because it would be “akin to noting in a medical record that you told a person
complaining of fatigue to take a nap.” (Doc. 10 at 19). On the contrary, the most
obvious treatment for Bush’s alleged leg pain is not necessarily to elevate the leg
multiple times a day for extended periods of time.
4
19
January 28, 2008, but that, after January 28, 2008, the ALJ’s reasons for not giving
Dr. Wheeler’s opinions controlling weight are sound. Likewise, the Court finds that,
as to the period after January 28, 2008, the ALJ’s RFC finding was supported by
substantial evidence, while it was not supported for the period prior to January 28,
2008.
Before turning to Bush’s physical limitations, the Court must address
Plaintiff’s argument that the ALJ should have further developed the record
concerning Bush’s allegations of depression and anxiety. (Doc. 10 at 16). At the
hearing, the ALJ asked Bush whether he took any medication, which is when Bush
testified that he was on Zoloft and Xanax for depression and anxiety. (Tr. 712-13).
Later in the hearing, the ALJ asked Bush how long he had had depression, and
Bush testified that he had been depressed since the accident. (Tr. 715). In response
to the ALJ’s question, Bush also testified that the medications were effective at
controlling his anxiety and depression. (Tr. 716). He said that he had had two or
three panic attacks prior to taking Xanax, but that Xanax had effectively stopped
them. (Tr. 716). Finally, Bush testified that he was not under the care of a
psychiatrist or psychologist. (Tr. 716). This line of questioning, coupled with
Plaintiff’s attorney’s failure to further question Bush or to submit records relating
to Bush’s mental health, satisfied the ALJ’s duty to develop the record. Sears v.
Bowen, 840 F.2d 394, 402 (7th Cir. 1988) (citing Glenn v. Secretary of Health and
Human Services, 814 F.2d 387, 391 (7th Cir. 1987) (“ALJ is entitled to presume that
a claimant represented by counsel in the administrative hearings has made his best
case.”). Likewise, the ALJ’s thorough and reasoned consideration of Bush’s claim of
20
anxiety and depression was certainly sufficient to satisfy his duty to explain his
determination that Bush’s anxiety and depression were not disabling. (Tr. 19).
Other than Dr. Bone’s prospective May 14, 2007 assessment that Bush would
be able to work by December 23, 2007, based only on a review of Bush’s records,
there is no record evidence indicating that Bush was able to work prior to January
28, 2007; the only other evidence that exists as to Bush’s abilities, Dr. Wheeler’s
records and opinion, indicates that he could not work. As discussed above, under the
regulations, Dr. Wheeler’s opinion was entitled to more weight than that given to
Dr. Bone’s. The only contrary evidence cited by the ALJ relating to this period was a
listing of Bush’s surgical history with Dr. Wheeler and a notation that he “was
exercising.”5 (Tr. 16-17). However, merely noting that certain of Bush’s fractures
were healing or that he was in physical therapy does not give any indication of his
ability to work; the only evaluation of Bush’s actual abilities during this time, from
Dr. Wheeler in June 2002, indicates that he could not work. Therefore, the ALJ did
not have substantial evidence from which to determine that Plaintiff had the RFC
to perform sedentary work.
However, as to the period after January 2008, when even Dr. Wheeler
believed that Bush could work, the ALJ’s RFC finding was supported by substantial
evidence. Bush was not taking pain medications, indicating that his pain was not
severe, did not suffer any diminished ability to concentrate due to pain, and did not
suffer any uncontrollable side effects from the medications he did take. See Donahue
It is apparent from the record that the ALJ’s “exercise” refers to Bush’s
physical therapy. The fact that a claimant is engaged in physician-ordered physical
therapy does not itself show or even suggest that he is able to work.
5
21
v. Barnhart, 279 F.3d 441, 444 (7th Cir. 2002) (finding relief with over-the-counter
pain medication indication that pain not severe). He did not require an assistive
device to walk, and even Dr. Wheeler felt that he should begin bearing weight on
his injured leg as early as July 2007. Bush’s testimony showed that he
“maintain[ed] a fair range of normal activities,” indicating that he was capable of
handling the demands of sedentary work. (Tr. 19). Bush had testified that he could
do housework, shop for groceries, weed his garden, walk the perimeter of his three
and a half acre property, stand for a half-hour, lift 10-20 pounds with his injured
arm (and was not limited on the amount he could lift with his left arm), and, with
some modification, pick up items from the floor and climb stairs. Finally, there was
no record indication of any advice from Dr. Wheeler or any other source that Bush
needed to frequently take time out of the work day to elevate his leg for extended
periods. Each of these findings by the ALJ is supported by the evidence, and,
together, they reasonably lead to the conclusion that Bush was capable of the
demands of sedentary work, with the applicable restrictions found by the ALJ, after
January 2008.
4.
Hypothetical posed to the vocational expert by ALJ
Finally, Plaintiff argues that the ALJ’s hypothetical to the vocational expert
was inadequate because it assumed some abilities that Plaintiff asserts Bush did
not have, and failed to include some of Bush’s alleged impairments.6 Plaintiff
Plaintiff wishes that the ALJ had limited the hypothetical worker proposed to
the vocational expert to never climbing, balancing, kneeling, crawling, climbing
ladders, climbing ropes, climbing scaffolds, or being near unprotected heights, and
to needing additional breaks, alternation between sitting and standing, and missing
more than three days a month due to pain or treatment. (Doc. 10 at 20).
6
22
argues both that the incorrect hypothetical undermined the vocational expert’s
testimony and therefore the ALJ’s decision based upon it, and that the inclusion of
the correct limitations would have precluded any work. The Court agrees that the
ALJ erred in relying on the vocational expert’s testimony, but for different reasons
than those asserted by Plaintiff.
At the hearing, the ALJ asked the vocational expert if there were jobs for a
person of Bush’s age, education, and experience who could perform only sedentary
work with only occasional climbing, balancing, stooping, crouching, kneeling, or
crawling, and only occasional ladders, ropes, scaffolds, moving machinery, and
unprotected heights. (Tr. 725-26). He specifically asked the expert to rely only on
the hypothetical in considering the limitations to apply, not on what he had learned
from the record and testimony. (Tr. 725). The vocational expert replied that there
would be work available to such a person, and listed three representative jobs that
exist in sufficient numbers in the national economy. (Tr. 726). In his opinion,
though, the ALJ found that Bush had the RFC to perform sedentary work not
requiring climbing of ropes, ladders, or scaffolds; no more than occasional climbing
of ramps and stairs, balancing, stooping, kneeling, crouching, or crawling; not
having concentrated or excessive exposure to unprotected heights or dangerous
moving machinery; and requiring only occasional walking or standing. (Tr. 17).
These two RFCs differ from one another in that the vocational expert’s
testimony was based on the worker being able to handle “occasional ladders, ropes,
scaffolds,” while the RFC as found by the ALJ required no ladders, ropes, or
scaffolds. In the ALJ’s opinion, he determined that the evidence showed that Bush
23
could not handle ladders, ropes, or scaffolds. As the vocational expert relied in
determining that there were sufficient jobs for Bush on an RFC that included more
abilities than those the ALJ found to be supported by the evidence, the ALJ could
not rely on his testimony in finding that there were sufficient jobs that Bush could
do, such that Bush was not disabled – the hypothetical was “fundamentally flawed”
in that it included abilities that the ALJ later determined Bush did not have. Young
v. Barnhart, 362 F.3d 995, 1005 (7th Cir. 2004) (“When the hypothetical question is
fundamentally flawed because it…does not include all of the limitations supported
by medical evidence in the record, the decision of the ALJ that a claimant can
adjust to other work in the economy cannot stand.”).
CONCLUSION
The Court finds that, as for the period between January 28, 2008 and March
2, 2009 the ALJ’s RFC determination for Bush was supported by substantial
evidence. However, as for the period between December 23, 2006 and January 28,
2008, the ALJ’s RFC determination for Bush was not supported by substantial
evidence. In addition, the ALJ erred in relying on the testimony of the vocational
expert in determining that there were jobs available that Bush could perform, as
the hypothetical posed to the vocational expert was flawed. Each of these errors
requires reversal of the agency decision, and a remand for further consideration.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Summary
Judgment (Doc. 10) is GRANTED IN PART AND DENIED IN PART, and
Defendant’s Motion for Summary Affirmance (Doc. 13) is DENIED. The decision of
the Commissioner of Social Security is REVERSED and this case is REMANDED
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pursuant to sentence four of 42 U.S.C. § 405(g) for a determination of Bush’s RFC
for the period between December 23, 2006 and January 28, 2008. The ALJ SHALL
also determine whether Bush was disabled during all or part of the entire alleged
period of disability by assessing whether jobs existed in the national economy that
Bush could have performed.
CASE TERMINATED.
Entered this 25th day of October, 2011.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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