Leezer v. Commissioner of Social Security

Filing 17

OPINION: Plaintiff Ronda J. Leezer's Brief in Support of Motion for Summary Judgment 10 is ALLOWED, and Defendant Acting Commissioner of Social Security's Motion for Summary Affirmance 15 is DENIED. The decision of the Commissioner is reversed and remanded pursuant to 42 U.S.C. § 405(g) sentence four. All pending motions are denied as moot. THIS CASE IS CLOSED. Entered by Magistrate Judge Byron G. Cudmore on 7/16/2013. (ME, ilcd)

E-FILED

Tuesday, 16 July, 2013 04:49:34 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
RONDA J. LEEZER,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 12-cv-3267

OPINION
BYRON G. CUDMORE, U.S. MAGISTRATE JUDGE:
Plaintiff Ronda J. Leezer appeals the denial of her application for
Supplemental Security Income (Disability Benefits) under Title XVI of the
Social Security Act. 42 U.S.C. §§ 405(g), 1381a, 1382c, and 1383(c).
Leezer has filed a Brief in Support of Motion for Summary Judgment
(d/e 10), and Defendant Acting Commissioner of Social Security
(Commissioner) has filed a Motion for Summary Affirmance (d/e15).1 The
parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before this
Court. Consent to Proceed Before a United States Magistrate and Order of
Reference, entered March 1, 2013 (d/e 11). For the reasons set forth
below, the Decision of the Commissioner is REVERSED and REMANDED.
1

Carolyn Colvin is now Acting Commissioner of Social Security. Motion for Summary Affirmance, at 1
n.1. Colvin is, therefore, automatically substituted in as the Defendant in this case. Fed. R. Civ. P. 25(d).

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STATEMENT OF FACTS
Leezer was born on November 17, 1959. She completed the
eleventh grade and subsequently secured a GED. Leezer suffers from
coronary artery disease post bypass surgery in 2001, and post placements
of stents in 2007, 2009, and 2010; hypertension; peripheral vascular
disease with edema; depressive disorder; peptic ulcer; and post left ankle
fracture with remaining hardware. Answer to Complaint (d/e 7), attached
Certified Record of Proceedings before the Social Security Administration
(R.), at 25, 51-52. She applied for Disability Benefits on April 17, 2009.
R. 25. She previously worked as a hand packager, lubrication servicer,
and machine presser. R. 51.
On September 2, 2009, state agency physician Dr. Michael Nenaber,
M.D., prepared a Residual Functional Capacity Assessment for Leezer.
R. 365-72. Dr. Nenaber opined that Leezer could lift and/or carry twenty
pounds occasionally and ten pounds frequently; stand and/or walk for six
hours and sit for six hours in an eight-hour work day; and only occasionally
climb. R. 365-69. Dr. Nenaber opined that Leezer had no other limitations
on her residual physical function capacity. R. 366-69. Dr. Nenaber also
stated that Leezer was only partially credible in her claims of disabling

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symptoms, noting that Leezer mowed her lawn, cared for a dog, drove, and
went shopping. R. 370.
On December 7, 2009, Leezer saw cardiologist Dr. Syed Samee,
M.D., for a cardiac workup. Dr. Samee ordered a stress test. R. 420-21.
After reviewing the test results, Dr. Samee diagnosed Leezer with angina
pectoris with evidence of reversible myocardial ischemia. Dr. Samee
recommended a diagnostic coronary angiography with possible
intervention. R. 419.
On January 14, 2010, Leezer underwent the recommended coronary
angiography. Dr. Samee found double vessel disease of the left anterior
descending and circumflex arteries and an occluded saphenous vein graft.
Dr. Samee inserted a stent into the circumflex. R. 395-98.
On January 29, 2010, state agency physician Dr. James Madison,
M.D., affirmed Dr. Nenaber’s conclusions in the September 2, 2009,
Residual Functional Capacity Assessment. R. 385-87.
Throughout 2010, Leezer saw Certified Nurse Practitioner Julie A.
Barry regularly for her primary care and follow up. Barry worked at the
Blessing Hospital Clinic in Quincy, Illinois. Leezer had started seeing Barry
on October 14, 2009. R. 373-84; 402-03; 411-12; 414; 422-48; 453-87;
499-528; 539.
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On December 13, 2010, Barry completed a Medical Source
Statement concerning Leezer’s condition. Barry opined that Leezer could
lift and/or carry less than ten pounds frequently; could stand, walk, or sit
without any limitations; could only occasionally climb, kneel, crouch, crawl,
or stoop; and had limited ability to push and pull. R. 536-37. Barry further
opined that Leezer should have limited exposure to noise, dust, and
vibration. R. 539. Barry stated, “Ronda experiences chest pain with
physical exertion, i.e., lifting, pushing, or pulling weight > 10 lb.” R. 537.
Barry stated that Leezer indicated that her disability started on February 13,
2009. Barry stated that she could not confirm that date. Barry stated that
she first saw Leezer in October 2009. R. 539.
On June 2, 2011, the Administrative Law Judge (ALJ) conducted an
evidentiary hearing. R. 48-74. Leezer and vocational expert Amy
Kutschbach testified at the hearing. The ALJ asked Kutschbach a series of
hypothetical questions about a person of Leezer’s age, education, work
experience, with the exertional capacity to perform a limited range of light
work, i.e., the ability to lift twenty pounds occasionally and ten pounds
frequently. See 20 C.F.R. 416.967(b). R. 68-72.
On June 24, 2011, the ALJ issued her decision. R. 25-42. The ALJ
followed the five-step analysis set forth in Social Security Administration
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Regulations (Analysis). 20 C.F.R. §§ 404.1520, 416.920. Step 1 requires
that the claimant not be currently engaged in substantial gainful activity.
20 C.F.R. §§ 404.1520(b), 416.920(b). If true, Step 2 requires the claimant
to have a severe impairment. 20 C.F.R. §§ 404.1520(c), 416.920(c). If
true, Step 3 requires a determination of whether the claimant is so severely
impaired that she is disabled regardless of the claimant's age, education
and work experience. 20 C.F.R. §§ 404.1520(d), 416.920(d). To meet this
requirement at Step 3, the claimant's condition must meet, or be medically
equivalent to, one of the impairments specified in 20 C.F.R. Part 404
Subpart P, Appendix 1 (Listing). 20 C.F.R. §§ 404.1520(d), 416.920(d). If
the claimant’s impairments, or combination of impairments, do not meet or
equal a Listing, then the ALJ proceeds to Step 4.
If the claimant is not so severely impaired, then Step 4 requires the
claimant not to be able to return to her prior work considering her age,
education, work experience, and Residual Functional Capacity (RFC).
20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant cannot return to her
prior work, then Step 5 requires a determination of whether the claimant is
disabled considering her RFC, age, education, and past work experience.
20 C.F.R. §§ 404.1520(f), 416.920(f). The claimant has the burden of
presenting evidence and proving the issues at the first four steps. The
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Commissioner has the burden on the last step; the Commissioner must
show that, considering the listed factors, the claimant can perform some
type of gainful employment that exists in the national economy. Briscoe ex
rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005); Knight v. Chater,
55 F.3d 309, 313 (7th Cir. 1995).
The ALJ found that Leezer met her burden at Steps 1 and 2. The
ALJ found that Leezer has not engaged in substantial gainful activity from
the date of her application on April 17, 2009, and that she suffered severe
impairments from coronary artery disease, hypertension, peripheral
vascular disease, and depressive disorder. R. 27. At Step 3, the ALJ
found that Leezer’s condition did not meet any Listing. The ALJ considered
the Listings for ischemic heart disease, peripheral artery disease, and
affective disorder which included depressive disorders. Listings 4.04, 4.12,
and 12.04. R. 27-28.
At Step 4, the ALJ found that Leezer had the RFC to perform light
work in which she can sit or stand at her own option, she can only
occasionally climb, and she can only perform tasks that require simple,
one- and two-step instructions. R. 30. The ALJ relied on evidence in the
record including the opinions of Drs. Nenaber and Madison. R. 40.

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The ALJ did not rely on Barry’s opinion that Leezer was limited to
lifting and carrying less than ten pounds. The ALJ stated that Barry, “was
unable to certify these limitations had been in place as of February 13,
2009, as she first saw the claimant in October 2009.” R. 40. The ALJ
further explained,
[M]s. Barry did recommend a restriction of 10 pounds
lifting, pushing, and pulling, which, at this time, is supported by
her own treatment notes or those of Dr. Samee, the claimant’s
cardiologist. As described throughout the decision, the
claimant’s symptoms do not appear at this level throughout the
adjudicative period. The undersigned, therefore, has given this
opinion little weight.
R. 40. At Step 4, the ALJ found that Leezer could not perform her past
relevant work. The ALJ based this conclusion on Leezer’s RFC and
vocational expert Kutschbach’s testimony. R. 41.
At Step 5, the ALJ found that Leezer could perform a significant
number of jobs in the national economy. The ALJ relied on the MedicalVocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, and the
testimony of vocational expert Kutschbach. R. 41-42.
Leezer appealed the decision. On August 3, 2012, the Appeals
Council denied Leezer’s request for review. The ALJ’s decision then
became the final decision of the Commissioner. R. 1. Leezer then filed
this action for judicial review.
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ANALYSIS
This Court reviews the Decision of the Commissioner to determine
whether it is supported by substantial evidence. In making this review, the
Court considers the evidence that was before the ALJ. Wolfe v. Shalala,
997 F.2d 321, 322 n.3 (7th Cir. 1993). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate” to
support the decision. Richardson v. Perales, 402 U.S. 389, 401 (1971).
This Court must accept the findings if they are supported by substantial
evidence, and may not substitute its judgment. Delgado v. Bowen, 782
F.2d 79, 82 (7th Cir. 1986). This Court will not review the credibility
determinations of the ALJ unless the determinations lack any explanation
or support in the record. Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir.
2008). The ALJ must articulate at least minimally her analysis of all
relevant evidence. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994).
The ALJ must “build an accurate and logical bridge from the evidence to his
conclusion.” Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
In this case, the ALJ did not build an accurate and logical bridge from
the evidence to her conclusion. Specifically, the ALJ found that Barry’s
opinion that Leezer could only lift less than ten pounds was supported by
her own treatment notes and the treatment notes of Leezer’s cardiologist,
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Dr. Samee. Yet, the ALJ did not consider this opinion because the opinion
did not cover the entire adjudicative period. The ALJ seemed to assume
that Leezer must prove she was disabled for the entire period from her
application date, April 17, 2009, to the date of the ALJ’s decision. This is
incorrect. Leezer must prove that she is disabled from medically
determinable impairments that can be expected to result in death or that
has lasted or can be expected to last for a continuous period of not less
than twelve months. 42 U.S.C. § 1382c(a)(3)(A). The onset date of the
disability can be after the application date. See SSR 83-20, at 1 (“[T]he
only instances when the specific date of onset must be separately
determined for a title XVI case is when the onset is subsequent to the date
of filing or when it is necessary to determine whether the duration
requirement is met.”).
In this case, the ALJ’s findings may indicate that Leezer’s ability to lift
and carry deteriorated during the pendency of her application. The ALJ
relied, in part, on Dr. Nenaber’s September 2009 opinion that Leezer could
lift twenty pounds occasionally and ten pounds frequently. The ALJ,
however, also found that Barry’s December 2010 opinion that Leezer could
only lift less than ten pounds was supported by her treatment records and
the records of Dr. Samee. The ALJ also found that Barry’s opinion did not
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apply throughout the adjudicative period. These findings may indicate that
Leezer’s ability to lift and carry deteriorated from September 2009 to
December 2010, and at some point Leezer could not lift more than ten
pounds.
Given these findings, the ALJ must address whether Leezer became
disabled while her application was pending. The ALJ must determine the
date by which Leezer’s ability to lift and carry deteriorated to less than ten
pounds (Lifting Limitation Date). See SSR 83-20 for a discussion of the
methods used to make this decision. The ALJ must also determine
whether Leezer’s less-than- ten-pounds limitation lasted or could be
expected to last for a continuous period of not less than twelve months,
pursuant to 42 U.S.C. § 1382c(b)(3)(A) (the Duration Requirement).
If Leezer’s less-than-ten-pounds limitation met the Duration
Requirement, the ALJ must determine whether Leezer was disabled on and
after the Lifting Limitation Date. The ALJ must resolve these issues before
she has sufficiently analyzed all of the relevant evidence and built an
accurate and logical bridge from the evidence to her conclusions.
The Commissioner argues that the ALJ effectively found that Leezer’s
condition improved from the time that she was limited to lifting less than ten
pounds,
Page 10 of 12

While Leezer may have been limited to lifting 10 pounds around
the time of her January 2010 surgery, the ALJ found that the
evidence did not support that limitation for most of the period
that Leezer claimed to be disabled. . . . Leezer . . . had
successful heart surgery in January 2010 and in the following
months her heart complaints mostly resolved. Although Leezer
had issues with edema and anemia, those conditions were
remedied through medication and dietary changes. Therefore,
the ALJ reasonably found that Ms. Barry’s lifting limitation was
entitled to little weight.
Memorandum in Support of Defendant’s Motion for Summary Affirmance
(d/e 16), at 12 (citations to the record omitted). The problem with this
argument is that Barry issued her opinion in December 2010, eleven
months after the January 2010 cardiac angiography. Thus, the less-thanten-pound limitation on lifting and carrying may have extended for at least
eleven months after the January 2010 procedure. The ALJ found that
Barry’s opinion was supported by her treatment notes and Dr. Samee’s
treatment notes. Thus, contrary to the contention of the Commissioner,
the ALJ did not explain whether less-than-ten-pounds limitation on lifting
and carrying was temporary or met the Duration Requirement.
Rather, the ALJ rejected Barry’s opinion because it did not extend
throughout the adjudicative period. R. 40. That was error. The fact that
Barry’s opinion did not cover the entire adjudicative period may only mean
that the disability started on some date after Leezer filed her application.
The onset of a disability may occur after the date that an application is filed.
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See SSR 83-20. The ALJ must determine whether the less-than-ten-pound
lifting limitation met the Durational Requirement, and if so, when the
limitation started and whether Leezer was disabled as a result of the lifting
limitation. The matter must be remanded for further proceedings to resolve
these issues.
WHEREFORE Plaintiff Ronda J. Leezer’s Brief in Support of Motion
for Summary Judgment (d/e 10) is ALLOWED, and Defendant Acting
Commissioner of Social Security’s Motion for Summary Affirmance (d/e15)
is DENIED. The decision of the Commissioner is reversed and remanded
pursuant to 42 U.S.C. § 405(g) sentence four. All pending motions are
denied as moot. THIS CASE IS CLOSED.
ENTER:

July 16, 2013

s/ Byron G. Cudmore
UNITED STATES MAGISTRATE JUDGE

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