Newstson v. Colvin

Filing 14

OPINION: The Motion of Plaintiff Rhonda Newtson for Summary Judgment 7 is ALLOWED. The Motion of Defendant Commissioner of Social Security for Summary Judgment 11 is DENIED. (SEE WRITTEN OPINION) Entered by Judge Richard Mills on 3/3/2016. (GL, ilcd)

E-FILED

Friday, 04 March, 2016 12:39:53 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
RHONDA R. NEWTSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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NO. 13-3080

OPINION
RICHARD MILLS, U.S. District Judge:
Rhonda Newtson seeks review of a decision, pursuant to Section
205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), denying
her claim for Supplemental Social Security Income payments.
Both parties move for Summary Judgment.
Plaintiff prevails.
I. BACKGROUND
Plaintiff Rhonda Newtson was born in 1972 and was 33 years old on
the date her application was filed. She has an 11th grade education and no

past relevant work.
On February 3, 2006, the Plaintiff filed for supplemental security
income alleging disability since September of 1998. The application was
denied initially and again upon reconsideration.
On November 15, 2006, the Plaintiff requested an administrative
hearing. A video conference was held before an administrative law judge
(“ALJ”) on April 13, 2009. In a decision dated April 22, 2009, the ALJ
found the Plaintiff not disabled under Section 1614(a)(3)(A) of the Social
Security Act. The Plaintiff requested that the Appeals Council review the
decision. The Appeals Council remanded the case for evaluation of new
and material evidence and further development of the medical evidence of
record.
On April 4, 2011, a second hearing was held before ALJ Shreese M.
Wilson. By decision dated April 18, 2011, ALJ Wilson found that Plaintiff
was not disabled. The Plaintiff requested review and, on May 18, 2012, the
Appeals Council remanded the case for further development of the medical
evidence of record and further evaluation of the Plaintiff’s residual

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functional capacity (RFC), her credibility and alleged pain symptoms and
new and material evidence submitted to the Appeals Council.
On October 4, 2012, a video conference hearing was held before ALJ
Wilson. By decision dated October 26, 2012, ALJ Wilson found that
Plaintiff was not disabled. The Plaintiff requested review and, on January
23, 2013, the Appeals Council denied the Plaintiff’s request for review.
This was the final act of the Commissioner.
In the October 26, 2012 decision, ALJ Wilson found that Plaintiff
had severe impairments of degenerative joint disease of the lumbar spine
and cervical spine, asthma and depression, but retained the RFC to perform
light work except that “she require[d] an alternate sit/stand once an hour
for five minutes,” she could not climb ladders, ropes or scaffolds, could
occasionally climb ramps or stairs, occasionally balance, stoop, kneel,
crouch or crawl, occasionally reach overhead, needed to avoid concentrated
exposure to extreme cold, heat, irritants such as dust fumes, odors, gases
and poor ventilation, needed to avoid concentrated exposure to dangerous
moving machinery and unprotected heights, and was limited to unskilled

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jobs where reading was not integral to the successful completion of job
tasks. Based on this RFC, the ALJ found that Plaintiff could work as a
small products assembler, collator operator and routing clerk.
The Plaintiff claims that the ALJ erred in the following ways: (1) the
ALJ failed to follow the treating physician rule; (2) the ALJ failed to
properly evaluate the Plaintiff’s credibility; and (3) the ALJ relied on flawed
vocational expert testimony.
II. ANALYSIS
A. Standard of review
“The findings of the Commissioner of Social Security as to any fact,
if supported by substantial evidence, shall be conclusive.” 42 U.S.C. §
405(g). Pursuant to section 205(g) of the Social Security Act, the ALJ’s
decision must be upheld if it is supported by substantial evidence. See
Moore v. Colvin, 743 F.3d 1118, 1120 (7th Cir. 2014). “Substantial
evidence” includes “such relevant evidence as a reasonable mind accepts as
adequate to support a conclusion.” Id. (citations omitted). The ALJ’s
decision must include a “logical bridge from the evidence to the conclusions

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sufficient to allow . . . a reviewing court[] to assess the validity of the
agency’s ultimate findings and afford [the Plaintiff] meaningful judicial
review.” Id. This Court may not substitute its judgment for that of the ALJ
“by reconsidering facts, reweighing evidence, resolving conflicts in evidence
or deciding questions of credibility.” Williams v. Apfel, 179 F.3d 1066,
1071-72 (7th Cir. 1999) (citation omitted).
B. Legal Discussion
(1)
The Plaintiff’s treating physician, Daniel O’Brien, M.D., is a family
practitioner. Under the “treating physician rule,” a treating physician’s
opinion that is consistent with the record is generally entitled to
“controlling weight.” See 20 C.F.R. § 404.1527(c)(2); Jelinek v. Astrue,
662 F.3d 805, 811 (7th Cir. 2011). Because some physicians may want to
assist a friend or patient in obtaining benefits, however, an ALJ “may
discount a treating physician’s opinion if the opinion is inconsistent with
the opinion of a consulting physician or when the treating physician’s
opinion is internally inconsistent, as long as he minimally articulates his

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reasons for crediting or rejecting evidence of disability.” Schmidt v. Astrue,
496 F.3d 833, 842 (7th Cir. 2007) (internal quotations and citations
omitted).
Although the ultimate question of disability is an issue reserved to the
Commissioner, see 20 C.F.R. § 416.927(e)(2), a treating physician’s
opinion that a claimant is disabled “must not be disregarded.” See Social
Security Ruling (“SSR”) 96-5P (1996 WL 374183).
In a letter dated September 30, 2009, Dr. O’Brien reported treating
the Plaintiff for diagnoses of cervical spinal cord compression secondary to
herniated disc, cervical fusion at C5-6, and weakness in the left leg with
spastic paraperesis. Clinical findings included spastic quadriparesis of the
upper and lower hyper reflexes, increased deep tendon reflexes in the lower
extremity and positive Hoffman in the extensor plantar. Dr. O’Brien cited
MRIs of the cervical and lumbar spines and a NCV-EMG that also
confirmed his diagnoses. He further reported that Plaintiff’s symptoms of
increased weakness in the left leg, increased reflexes, spastic clonus in the
lower extremities, sensory loss in the left leg, and lower extremity cramping

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pain had not been relieved despite treatment with a cervical fusion,
extended physical therapy, and pain medications. It was Dr. O’Brien’s
opinion that Plaintiff could only stand/walk for a total of two hours during
an eight-hour workday. The Plaintiff had limited range of motion in the
neck which interfered with her ability to use her upper extremities and she
experienced fatigue and increased symptoms when these activities were
sustained. The Plaintiff’s pain and fatigue were frequently severe enough
to interfere with her attention and concentration.
Dr. O’Brien completed a Multiple Impairment Questionnaire on April
20, 2011. He diagnosed herniation in the C5-C6 nucleus pulposus, with
resultant cervical myelopathy and spastic quadriparesis, leading to
incontinence, weakness in the left lower extremity, and paresthesia.
Positive clinical findings included antalgic gait favoring the left side, lower
extremity weakness and increased muscle tone, increased reflexes in the
knee and ankles and decreased sensation in the left leg.
It was Dr. O’Brien’s opinion that in an eight-hour day, the Plaintiff
could sit for four hours total, stand/walk for one hour total and that she

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must get up and move around every two hours when sitting. She could
frequently lift up to 20 pounds, occasionally carry up to 20 pounds and was
moderately limited in the ability to use her upper extremities to grasp, turn
and twist objects and use the arms for reaching, including overhead. The
Plaintiff also required ready access to a restroom because of her
incontinence.
In considering Dr. O’Brien’s opinion, the ALJ stated as follows:
Dr. O’Brien completed a multiple impairment questionnaire
dated July 11, 2007 and April 20, 2011. Dr. O’Brien referenced
cervical MRI, lumbar MRI in support of his diagnoses. The
undersigned initially notes that the latest MRI on July 25, 2006
revealed no focal disc herniations and no central canal stenosis.
Dr. O’Brien did not indicate any limitations in the claimant’s
ability to sit, and noted she could stand/walk 1-2 hours in an 8hour period. Dr. O’Brien did not indicate any limitations in
claimant’s ability to lift or carry weight. She had no noted
limitations in manipulating or grasping objects. Dr. O’Brien
noted the claimant could not keep her neck in a constant
position; however, there is no notation of any limitation in
range of motion of the neck. Although Dr. O’Brien concluded
claimant could not perform full-time work activity, this is not
supported by his assessment of claimant’s postural limitations.
The claimant was assessed as capable of dealing with moderate
stress. Dr. O’Brien did not indicate the claimant would be
absent from work because of impairments or treatments, which
is inconsistent with his assessment that she could not sustain
work activity. Although multiple medical notes from Dr.
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O’Brien indicated [] the claimant was disabled by a neurological
disorder and unable to seek employment, these opinions are
given little weight for a number of reasons. Initially, the
undersigned notes these assessments are each written on a
prescription pad, and are not accompanied by nor do they
reference any functional capacity assessment that could support
Dr. O’Brien’s conclusions the claimant has been unable to seek
employment. Next, the undersigned notes the conclusions are
vague as to a disabling “neurological disorder” and are not
supported by any diagnoses of a severe physical impairment.
The claimant has only been recommended for conservative
treatment by Dr. O’Brien and other treating physicians, not
surgery. Dr. O’Brien’s own medical reports fail to reveal any
significant clinical abnormalities or significant limitations in
function that could support these conclusions. Finally, the
foregoing opinion of Dr. O’Brien, essentially precluding all work
activity, is not supported by other objective evidence of record.
R. at 23 (internal citations omitted).
(2)
The ALJ stated that the limitations described by Dr. O’Brien in his
Multiple Impairment Questionnaire dated April 20, 2011 and his narrative
from September 30, 2009 were not supported by objective evidence. The
ALJ speculated that Dr. O’Brien may have based his opinions on the
Plaintiff’s limitations out of sympathy or because she demanded such a
report, instead of on appropriate medical evidence.

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The Plaintiff notes that on multiple occasions, Dr. O’Brien wrote that
his opinions were based on clinical and diagnostic evidence of: spastic
quadriparesis, lower extremity hyperreflexia and increased deep tendon
reflexes, positive Hoffman’s sign, an antalgic gait favoring the left side,
lower extremity weakness and increased muscle tone, decreased sensation
in the left leg, cervical and lumbar MRIs and an EMG,
The Plaintiff asserts that the ALJ did not cite substantial evidence
contradicting the opinions from Dr. O’Brien. Accordingly, the Plaintiff
contends those opinions are entitled to controlling weight. See 20 C.F.R.
§ 416.927(c)(2) (the Commissioner must give controlling weight to a
treating physician’s opinion that is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in your case record”); SSR 96-2P (1996 WL
374188) (noting that a well-supported opinion from a treating source that
is not contradicted by substantial evidence must be adopted by the ALJ).
The Plaintiff further contends that, even assuming Dr. O’Brien’s
opinions are not entitled to controlling weight, the opinions are “still

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entitled to deference and must be weighed using all of the factors provided
in 20 C.F.R. 404.1527 and 416.927. In many cases, a treating source’s
medical opinion will be entitled to the greatest weight and should be
adopted, even if it does not meet the test for controlling weight.” SSR 962P. The Plaintiff claims that is the case here. The Plaintiff states Dr.
O’Brien treated her as often as she could afford to see him throughout the
time frame. Moreover, the nature of the treatment concerned the Plaintiff’s
disabling musculoskeletal impairments. Additionally, the Plaintiff claims
Dr. O’Brien provided extensive medical findings in support of his opinion.
The Plaintiff contends that because those findings are consistent with the
record as a whole, the ALJ had no basis to ignore Dr. O’Brien’s clinical
findings.
The Plaintiff claims that the ALJ’s decision does not include any
supporting evidence for the finding that she can perform light exertional
work, as required by the Social Security Ruling:
The RFC assessment must include a narrative discussion
describing how the evidence supports each conclusion, citing
specific medical facts (e.g. laboratory findings) and nonmedical
evidence (e.g., daily activities, observations). In assessing RFC,
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the adjudicator must discuss the individual’s ability to perform
sustained work activities in an ordinary work setting on a
regular and continuing basis (i.e., 8 hours a day, for 5 days a
week, or an equivalent work schedule), and describe the
maximum amount of each work-related activity the individual
can perform based on the evidence available in the case record.
The adjudicator must also explain how any material
inconsistencies or ambiguities in the evidence in the case record
were considered and resolved.
SSR 96-8p (footnote omitted). The ALJ has a duty to examine all of the
evidence in the record, see 20 C.F.R. § 404.1545(a)(3), and her decision
must be adequately explained and supported by substantial evidence. See
Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). The
failure to explain how the evidence supports each conclusion in the RFC
assessment is sufficient to warrant reversal. See id. at 352.
The ALJ does not specify what evidence she uses to discount Dr.
O’Brien’s opinions.

In addition to referring to “inconsistences in the

record,” the ALJ states very generally that although some evidence supports
the Plaintiff’s allegations, the “objective medical findings” do not. The ALJ
does not explain her decision by discussing other medical evidence.
Although Vittal Chapa, M.D., evaluated the Plaintiff at the request of the

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Social Security Administration, the ALJ does not use the diagnoses or
opinions of Dr. Chapa or any other medical source to reject Dr. O’Brien’s
findings.
Because the ALJ does not cite any specific medical or other evidence
as to why Dr. O’Brien’s opinions should be discounted, the Court must
conclude that her decision is not supported by substantial evidence.
(3)
In discussing the Plaintiff’s credibility and her RFC determination, the
ALJ stated:
After careful consideration of the evidence, the undersigned
finds that the claimant’s medically determinable impairments
could reasonably be expected to cause the alleged symptoms;
however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not
credible to the extent they are inconsistent with the above
residual functional capacity assessment.
R. at 18. The ALJ purports to discredit the Plaintiff’s testimony using
familiar boilerplate language that the Seventh Circuit has criticized in
recent years. See Minnick v. Colvin, 775 F.3d 929, 936 (7th Cir. 2015);
Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013); Bjornson v. Astrue,

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671 F.3d 640, 644-45 (7th Cir. 2012).
The Court notes that the Social Security Administration’s use of such
meaningless boilerplate language is not enough by itself to warrant reversal.
The use of such language is harmless if the ALJ provides additional reasons
for her finding. See Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012);
Shideler v. Astrue, 688 F.3d 306, 311-12 (7th Cir. 2011).
In addition to the problems noted above with the ALJ’s analysis, the
Court finds that the ALJ’s evaluation of the Plaintiffs credibility is flawed.
III. CONCLUSION
For these reasons, the Court concludes that the ALJ’s decision is not
supported by substantial evidence. The Court notes that Plaintiff requested
that the decision of the Commissioner should be reversed for an award of
benefits or, in the alternative, remanded for a new hearing and decision.
Because the record is unclear as to whether the Plaintiff qualifies as
disabled, this cause will be remanded for a rehearing.
On remand, the ALJ shall properly evaluate the medical evidence,
assess the Plaintiff’s credibility and consider the testimony of the vocational

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expert.
Ergo, the Motion of Plaintiff Rhonda Newtson for Summary
Judgment [d/e 7] is ALLOWED.
The Motion of Defendant Commissioner of Social Security for
Summary Judgment [d/e 11] is DENIED.
The Clerk will enter a Judgment reversing the Commissioner’s
decision and remanding the cause for a rehearing.
ENTER: March 3, 2016
FOR THE COURT:
s/Richard Mills
Richard Mills
United States District Judge

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