Owens v. Commissioner of Social Security
Filing
20
OPINION entered by Judge Sue E. Myerscough on 1/20/2016. Plaintiff's Motion for Summary Judgment, d/e 12 and Defendant's Commissioner of Social Security's Motion for Summary Affirmance, d/e 18 are ALLOWED IN PART and DENIED IN PART. The decision of the Commissioner is AFFIRMED IN PART and REVERSED AND REMANDED IN PART. (MAS, ilcd)
E-FILED
Friday, 22 January, 2016 03:05:07 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MARSHA D. OWENS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,
Defendant.
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No. 13-cv-3429
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff Marsha D. Owens appeals from the denial of her
application for Social Security Disability Benefits (DIB) and
Supplemental Security Income Disability Benefits (SSI) (collectively
Disability Benefits) under Titles II and XVI of the Social Security
Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c. This appeal is
brought pursuant to 42 U.S.C. §§ 405(g) and 1383(c). Owens has
filed a Motion for Summary Judgment (d/e 12), and Defendant
Commissioner of Social Security has filed a Motion for Summary
Affirmance (d/e 18). For the reasons set forth below, this Court
AFFIRMS the decision of the Commissioner in part and REVERSES
and REMANDS in part.
Statement of Facts
Owens was born on November 22, 1954. She graduated from
high school. She has previously worked as a data entry clerk and a
general office clerk. R. 145, 275-78. Owens last worked full-time
on May 31, 2003. Certified Transcript of Proceedings before the
Social Security Administration (d/e 9 and 10) (R.), 85, 275-78. On
November 21, 2011, Owens applied for DIB benefits, and four years
and five months later, on May 7, 2013, she applied for SSI benefits.
Owens initially alleged that she became disabled on December 21,
2003 (Onset Date), and later amended the alleged Onset Date to
November 1, 2006. R. 145, 18, 100. The last date on which Owens
was insured for DIB benefits was December 31, 2008 (Last Date
Insured). Owens suffers from obesity and arthritis/degenerative
joint disease in the knees and left shoulder, as well as foot pain and
sleep apnea. R. 18-19.
On July 15, 2002, Owens saw Dr. Thomas Wiss, M.D. Owens
complained of pain in her right heel. Dr. Wiss diagnosed plantar
fasciitis. R. 1003. Dr. Wiss saw Owens several times from July
Page 2 of 33
2002 to May 21, 2004 for continuing problems with her feet. Dr.
Wiss prescribed ice massages, injections, pain medication, and
orthotic inserts in Owens’ shoes. R. 1000-03.
On November 20, 2006, Owens saw an orthopedic specialist,
Dr. Leo Ludwig, M.D., for pain in both of her knees. Dr. Ludwig
noted that Owens had been taking oral pain medication for her
knees and back for two years, including Nabumetone and Darvocet.
Dr. Ludwig noted that Owens had also undergone five Hyalgan
injections and cortisone injections in both knees. Owens reported
that none of the treatments had brought any long-term relief. R.
989. Owens measured 5 feet, 6 ¾ inches tall and weighed 298
pounds at the time of the examination. On examination, Owens
walked unaided. Dr. Ludwig observed some swelling in the right
knee, and found a small effusion on palpation. The right knee had
crepitation. X-rays showed bone-on-bone advanced arthritis with
severe patellofemoral disease in her right knee. The x-rays showed
moderate changes in the left knee. Dr. Ludwig advised Owens that
she needed knee replacement surgery, but he opined that she was
young for such a surgery. Dr. Ludwig recommended to her that she
should live with the condition at this point in time. R. 989-90.
Page 3 of 33
On January 17, 2007, x-rays were taken of Owens’ left
shoulder and right foot. Owens was experiencing pain in her
shoulder. The x-rays showed mild degeneration in the AC joint in
her left shoulder and no acute abnormalities in her right foot. R.
383.
On March 8, 2007, Owens underwent arthroscopic surgery of
her left shoulder. Dr. Rodney J. Herrin, M.D., performed the
surgery. The surgery revealed that Owens had tendinitis in the
rotator cuff and a small tear in the upper border of the
subscapularis. Dr. Herrin performed a subacromial decompression
and debridement of the tear during the surgery. R. 500. On July
16, 2007, Owens underwent an MRI of her right shoulder. The MRI
showed osteoarthritis of the AC joint, a complete tear of the
infraspinatus tendon with tendon retraction and muscle atrophy;
tendinopathy with partial tear of the supraspinatus tendon; partial
tear of the subcapularis tendon with medical dislocation of the long
head biceps tendon; atrophy of the teres minor muscle; and
effusion. R. 494.
On August 31, 2007, Dr. Herrin performed arthroscopic
surgery on Owens’ right shoulder to repair a right rotator cuff
Page 4 of 33
muscle. During that same procedure, Dr. Herrin administered an
injection into Owens’ left shoulder and into her right knee. R. 48687.
On October 30, 2007, Owens saw Dr. George A. Geranios,
M.D., for swelling and redness in her feet and ankles. At this visit,
Owens weighed 293 pounds. Dr. Geranios assessed edema of the
foot and prescribed diuretics for five days. R. 362.
On November 26, 2007, Owens saw Dr. Wiss for a follow-up of
her October 2007 appointment with Dr. Geranios. Owens had
completed a five-day course of diuretics. On examination, Dr. Wiss
noted that the redness had resolved, but Owens was still sensitive
bilaterally in her lower legs. R. 362.
On August 5, 2008, Dr. Herrin performed a right total knee
replacement surgery on Owens. R. 474. On August 21, 2008,
Owens saw Dr. Herrin for follow-up on the right knee replacement
surgery. Owens reported that she was improving, but that she was
still experiencing pain. Dr. Herrin assessed some calf tenderness
and swelling. R. 472.
On September 9, 2008, Owens saw Dr. Herrin again for a
follow-up appointment. Owens was doing better. She had no pain
Page 5 of 33
on motion. R. 471. On September 15, 2008, Owens saw Dr. Herrin
again. Dr. Herrin assessed that Owens was improving. On
November 10, 2008, Owens saw Dr. Herrin for a follow-up. Dr.
Herrin found that Owens was doing fairly well, but Dr. Herrin noted
that Owens reported “a little bit of discomfort posterior laterally.”
R. 469.
On December 15, 2008, Owens saw Dr. Geranios. Owens
complained that she had had pain in her right leg since her knee
replacement surgery. Owens measured 5 feet 6 inches tall and
weighed 290 pounds at the time of the visit. Dr. Geranios
prescribed pain medication, heat, and rest. R. 341.
On July 14, 2009, Owens saw Dr. Geranios for a urinary tract
infection. Owens weighed 312 pounds at that time. Dr. Geranios
prescribed antibiotics for the infection. R. 336.
On August 6, 2009, Owens saw Dr. Herrin for a one-year
follow-up examination on her right knee replacement surgery.
Owens had no pain in moving the knee, and the knee was stable.
Owens still was having “discomfort medially and laterally in the
knee.” R. 467. Dr. Herrin assessed some possible bursitis, but he
could not rule out the possibility of adhesions or soft tissue
Page 6 of 33
impingement. R. 467. Dr. Herrin administered an injection into
the knee to treat the pain. R. 467.
On October 12, 2009, Owens saw Dr. Herrin for a follow-up on
her knee replacement surgery. Owens reported that her condition
had improved, but her knee still “bothers her somewhat.” Owens
reported some swelling. On examination, Dr. Herrin did not see “a
great deal of swelling,” but he noted some tenderness. Dr. Herrin
recommended conservative treatment and a recheck in four
months. R. 466.
On October 20, 2009, Owens underwent an MRI of her right
forefoot. Dr. Geranios ordered the MRI. The MRI showed a
nondisplaced fracture in the base of the third and fourth
metatarsals and osteoarthritis in the fourth tarsometatarsal joint.
R. 1004.
On January 11, 2010, Owens saw Dr. Herrin for a follow-up of
her knee replacement surgery. Owens reported still having pain,
but she said the injections in August 2009 helped. Dr. Herrin
assessed right knee pain after knee replacement surgery. He
recommended ice and pain medication. R. 464.
Page 7 of 33
On February 15, 2010, Owens saw Dr. Edward Trudeau, M.D.,
for a neurological consultation for pain in her right foot. Dr. Philip
Siebert, D.P.M. referred Owens to Dr. Trudeau. Dr. Trudeau stated
that he had seen Owens twice before, eight and nine years earlier,
for pinched nerves. On examination, Dr. Trudeau noted tenderness
in the lumbar region and over the right foot on palpation, and
mildly hypoactive reflexes in the knees and ankles. Dr. Trudeau
conducted nerve conduction and EMG studies. The studies showed
mild to moderately severe peroneal and sural neuropathy, as well as
mild to moderately severe S-1 lumbar radiculopathy. R. 294-99.
On October 13, 2010, Owens had a MRI of her back. The MRI
showed moderate spinal canal stenosis, severe stenosis at L4/5,
and mild stenosis at L5/S1. R. 533.
On November 2, 2010, Owens saw a pain specialist, Dr.
Ferdinand Savacion, M.D., for leg and back pain. On examination,
Owens’ gait was within normal limits. Her lumbar spine had full
range of flexion and extension but was painful at the end of the
range of motion. Owens was able to stand on her heels and toes.
Owens could stand on each leg independently. Straight leg testing,
however, was positive bilaterally. Dr. Savacion also reviewed the
Page 8 of 33
October 2010 MRI of Owens’ spine. Dr. Savacion diagnosed lumbar
degenerative disk disease, lumbar spinal stenosis, and lumbar
radiculitus. He scheduled Owens for lumbar epidural steroid
injections. R. 530-31. Dr. Savacion administered two injections
into Owens’ lumbar spine on November 12 and 29, 2010. R. 526,
528.
On April 11, 2011, Owens saw Dr. Herrin complaining of pain
in her left shoulder and her right knee. Owens reported that the
pain in her shoulder extended into her arm. She reported pain at
night. Owens also reported pain in her right knee that extended
into her right calf and thigh. On examination, Owens had reduced
range of motion in her shoulder and some pain. Owens had pain
on palpation in her knee. Dr. Herrin administered an injection into
Owens’ shoulder. Dr. Herrin recommended strengthening exercises
for her knee. R. 461-62.
May 31, 2011, Owens underwent diagnostic arthroscopic
surgery of her right knee. Dr. Herrin performed the procedure. Dr.
Herrin found evidence of extensive synovitis in the joint as well as
soft tissue joint impingement related either to scar formation or
Page 9 of 33
adhesions.1 Dr. Herrin performed an extensive synovectomy and
removal of an impinging soft tissue lesion. R. 457-58.
On July 14, 2011, Owens saw Dr. Herrin for a follow-up after
her right knee arthroscopic surgery. Owens reported that her knee
was doing better. R. 455.
On November 17, 2011, Owens saw Dr. Geranios. Owens
complained of low back pain and numbness and swelling in her
hands. Owens weighed 324 pounds at the time of this visit. On
examination, Dr. Geranios found tenderness in the lumbosacral
spine on palpation. Dr. Geranios diagnosed lumbar stenosis. R.
506-08.
On November 21, 2011, Owens filed a claim for DIB benefits.
She alleged that her Onset Date was December 21, 2003. R. 145,
18, 100.
On November 30, 2011, and December 15, 2011, Owens saw
pain specialist Dr. Ferdinand Savacion, M.D. On both occasions,
Dr. Savacion administered injections into Owens’ lumbar spine for
pain. R. 506-12.
1
Synovitus is an inflammation of the lubricating membrane that lines a joint. American Medical
Association, Complete Medical Encyclopedia (2003), at 1185.
Page 10 of 33
On January 20, 2012, Owens saw Dr. Trudeau. Dr. Scott
McClain, M.D., had referred Owens to Dr. Trudeau for a
neurological consultation due to Owens’ complaints of pain in her
back, neck, and legs, and numbness and tingling in her hands. On
examination, Dr. Trudeau found tenderness diffusely in the
cervical, lumbar, and interscapular regions, and also in the
posterior of the right knee and calf. Dr. Trudeau found normal
strength in the upper extremities but weakness in the ulnarinnervated intrinsic and APB muscles on either side. Dr. Trudeau
also found weakness in the great toes, greater right than left. R.
873.
Dr. Trudeau performed nerve conduction and EMG studies.
The studies showed S1 radiculopathy, mild L5 radiculopathy,
peroneal neuropathy, and mild to moderately severe right sided
carpal tunnel syndrome and mild on the left. Dr. Trudeau found no
current evidence of sural neuropathy. R. 874-79. Dr. Trudeau
stated:
Before we go any further, we would mention that we did
happen to notice that there was a request for information with
Social Security disability, and that seems entirely
inappropriate. We, of course, do not have any control over the
legal system, and what is consider (sic) disability in the
Page 11 of 33
medical system may not be considered in the legal system.
Therefore, the 2 systems are sort of parallel but do not always
overlap completely. In other words, sometimes we doctors can
feel a patient is very disabled, yet for some reasons they may
not meet the criteria federally. However, considering that this
pleasant lady, who we saw 10 years ago and 2 years ago and
currently, and she has been here for hours and we always
interact with her intensively and we have the utmost respect
and regard for her, it seems very, very positive that this is a
patient who should qualify for disability. Again, we cannot be
an adjudicator or a judge, etc.; that would be completely up to
the legal system, so to speak, but at this point if there is any
patient who in our opinion qualifies for disability, it would be
this pleasant lady certainly considering what she had dealt
with.
R. 872-73.
On February 29, 2012, state agency physician Dr. Richard
Bilinsky, M.D., prepared a Physical Residual Functional Capacity
Assessment form. R. 847-53. Dr. Bilinsky opined on Owens’
physical residual functional capacity as of December 31, 2008, her
Last Date Insured for DIB benefits. R. 16, 847. Dr. Bilinsky opined
that as of that date, Owens could lift twenty pounds occasionally
and ten pounds frequently; could stand and/or walk for six hours
in an eight-hour workday; could sit for six hours in an eight-hour
workday; could frequently climb ladders, ropes, and scaffolds; and
could frequently stoop, kneel, crouch, and crawl. R. 847-48. Dr.
Page 12 of 33
Bilinsky opined that Owens had no other physical limitations on
her functional capacity. R. 848-53.
On April 18, 2012, state agency Dr. Towfig Arjmand, M.D.,
affirmed Dr. Bilinsky’s opinions of Owens’ physical residual
functional capacity as of December 31, 2008, Owens’ Last Date
Insured for DIB benefits. R. 854-56.
On May 8, 2012, Owens saw Dr. McClain. Dr. McClain
prescribed ibuprofen for the pain. Dr. McClain also noted that
Owens was taking hydrocodone for pain. Dr. McClain stated that
Owens’ sleep apnea was not optimally controlled. Owens reported
waking up sleepy and hypersomnolence and fatigue during the day.
R. 860-62.
On June 4, 2012, Owens saw a sleep specialist, Dr. Jerry
Reed, M.D. Owens reported daytime sleepiness. Owens was using
a CPAP machine with oxygen at night.2 Dr. Reed noted that Owens
apnea should be well controlled by her CPAP machine. Dr. Reed
prescribed an awake-promoting medication, Nuvigil. R. 974-76.
2
CPAP is a continuous positive airway pressure machine. See National Institutes of Health, National
Heart, Lung, and Blood Institute, Explore CPAP, available at http://www.nhlbi.nih.gov/health/healthtopics/topics/cpap, viewed July 20, 2015.
Page 13 of 33
On June 25, 2012, Owens saw Dr. Reed. Owens reported that
the Nuvigil was not working. Dr. Reed increased dosage of the
Nuvigil and directed Owens to continue using her CPAP. R. 971-72.
On November 13, 2012, Owens saw Dr. Soo Kim, M.D. Owens
saw Dr. Kim because of an increase of pain and swelling in her
ankles and feet. Owens reported swelling and pain in both legs
since she started a new job where she had to sit without much leg
exercise. R. 900. Dr. Kim noted trace edema in her extremities.
Owens’ upper and lower strength extremity was full and
symmetrical. Dr. Kim prescribed a diuretic and compression
stockings. R. 900-03.
On December 28, 2012, Owens underwent an MRI of her left
shoulder. Dr. Herrin ordered the MRI. The MRI showed profound
fatty atrophy of her infraspinatus muscle and a thin remnant of a
tendon. The tests also showed tendinosis and a partial surface tear
of the supraspinatus, moderate arthritis in the AC joint with a
prominent superior spurring, and osteophyte formation on the
humeral head. R. 916-17.
On January 3, 2013, Owens saw Dr. Herrin for arthritis of the
knee and for left shoulder pain. Dr. Herrin stated that he was not
Page 14 of 33
certain that any surgical intervention in her shoulder would help
because of significant atrophy. Dr. Herrin recommended Mobic as
an anti-inflammatory medication. He also noted the possibility of
injections in her left knee, and in the future, a possible left knee
replacement surgery. R. 905-06.
On January 8, 2013, Owens saw Dr. Reed regarding her sleep
apnea. Owens weighed 298 pounds at that time. Owens
complained of fatigue. Dr. Reed opined that her fatigue could be
due to sleep apnea. Dr. Reed noted that Owens compliance with
use of the CPAP was excellent. Dr. Reed ordered her to continue
using the CPAP. Dr. Reed was not prescribing Nuvigil for Owens at
this time. R. 969-70.
On May 7, 2013, Owens filed her application for SSI benefits.
R. 16.
On May 14, 2013, the Administrative Law Judge (ALJ)
conducted an evidentiary hearing. R. 66-102. Owens appeared in
person and with her attorney. Vocational expert Dr. James Lanier,
Ph.D., also appeared.3 The ALJ presided over the hearing in Peoria,
3
Dr. Lanier’s Past Relevant Work Summary states that he holds a Ph.D. R. 274.
Page 15 of 33
Illinois. Owens, her attorney, and Dr. Lanier appeared by
videoconference in Springfield, Illinois. R. 68.
Owens testified first. She was 58 years old at the time of the
hearing. She testified that she was 5 feet 6 inches tall and weighed
297 pounds. She was unmarried with no children. She lived alone
in a ranch style home with one story and a basement. R. 71-72.
Owens testified that she currently worked part-time for an
insurance adjuster. She took pictures of wrecked vehicles and filled
out paperwork. She testified that she would meet with the insured,
collect information, and take photographs of the vehicle. She then
uploaded the photographs and typed the other information into her
computer and sent the information to her employer. She testified
that she also has worked part-time for Kelly Services. R. 73. In
2012, Owens made approximately $2,000.00 in her part-time work.
R. 83.
Owens testified that she completed high school. She had
worked as an administrative assistant for a telephone company.
She typically sat six hours a day at this job. The heaviest weight
she carried was twenty pounds. She typically carried objects
Page 16 of 33
weighing five pounds on a regular basis. She carried objects
weighing twenty pounds about once every three weeks. R. 76.
Owens testified that she took hydrocodone daily for pain. She
testified that she had been taking hydrocodone for ten years. She
took two to three tablets per day if she was staying at home, and
four or five if she was leaving the house. She testified that the
hydrocodone made her feel dizzy and lightheaded, “like I’m just off
balance.” R. 77. Owens testified that six to seven days a month
she would not take any hydrocodone. R. 78.
Owens testified that she drove herself about ten to fifteen
miles per week. Owens testified that she could bathe herself, dress
herself, and otherwise take care of her own personal hygiene. She
testified that she cooked, washed dishes, and did laundry; and she
vacuumed, dusted, and swept her home. Her brother did any
necessary heavy mopping. She testified that vacuuming was
difficult. She testified that she had to stop several times because of
her back. R. 79.
Owens testified that she shopped for groceries. She testified
that she hung on to the grocery cart for support. She testified that
she went out once or twice a week to visit with friends and family.
Page 17 of 33
R. 79-80. She testified that friends or family came to her house to
visit “perhaps twice a month.” R. 80. She was a member of the
Telephone Pioneers of America, but she did not attend their
functions. She went to one once since she retired. She did not
attend church. R. 80.
Owens testified that she watched television four to five hours a
day. She spent two hours a day on the computer. She did not
spend time reading. R. 80.
Owens testified that her occasional work with Kelly Services
involved either data entry or mail extraction. The job involved
opening quarterly estimated income tax payments. Owens testified
that the work was very painful, “My back is very painful, and my
knees. While I am here, I take a pain pill before I leave my house,
and within two and a half hours typically I take a second
hydrocodone.” R. 83.
Owens testified that in 2007 and 2008, she was experiencing
shoulder and back pain. Owens testified that sitting was painful.
She also testified that she could not reach for items on a bookshelf,
such as booklets or manuals. R. 84.
Page 18 of 33
Owens testified that she stopped working on May 31, 2003,
because the telephone company closed the office in which she
worked and she was terminated. R. 85. Owens testified that if the
facility had not closed, she could have worked about a year to a
year and a half longer. She testified that she would have been
forced to stop working because of the pain. She testified that she
had pain any time she lifted her arms and pain when she carried
any objects. R. 85.
Owens testified that, in 2007 and 2008, she could stand in
one position for fifteen minutes. She testified that she could walk
half a block. R. 87-88.
Owens testified that she was had swelling in her right knee
both before and after the knee replacement surgery. Owens
testified that she had to prop her legs up in a recliner and ice her
knee and leg to reduce the swelling. R. 88. Owens testified that
she had a little problem with her left knee in 2007 and 2008, but it
has since gotten worse. R. 88.
Owens testified that her pain affected her concentration. “It is
hard for me to focus on what a person in saying to me. It’s like I
cannot absorb what they’re telling me.” R. 89.
Page 19 of 33
Owens testified that, in 2007 and 2008, she experienced
swelling in her feet and ankles. She also testified that she was
diagnosed with plantar fasciitis. She testified that her condition
made it harder to walk. She testified that the orthotic inserts in her
shoes helped, but she still had problems walking more than a
block. R. 89-90.
Owens testified that her weight affected her other problems.
She testified that her weight put added stress on her knees, feet,
and back. She testified that she had tried to lose weight. She
testified that she could not exercise because of the pain in her feet,
knees, and back. R. 90.
Owens testified that she could sit for an hour if she could shift
her weight and stand occasionally. She testified that after an hour
she needed to get up and move and, “perhaps take another pain
pill.” R. 90-91. She testified that she could alternate between
sitting and standing for about four hours. R. 91. She testified that
she worked four-hour shifts when she worked for Kelly Services.
After her four-hour shift, she needed to lie down and rest for an
hour. R. 91. She testified that she then would typically put in a
load of laundry and do some vaccuming and dusting. She testified
Page 20 of 33
that she typically performed housework by working thirty minutes
and then resting thirty minutes. R. 91-92.
Owens testified that her brother did yard work for the last two
years. For two to three years before that, her niece and nephew did
her yard work. R. 92.
Dr. Lanier then testified. The ALJ asked Dr. Lanier,
I would like you to assume you have an individual of the same
age, education, and experience as the claimant. This
individual is limited to light work, limited to frequent postural
activities. How would these restrictions affect the performance
of claimant’s past relevant work?
R. 95. Dr. Lanier opined that these restrictions would not affect the
individual’s ability to perform Owens’ past relevant work. R. 96.
Dr. Lanier classified Owens’ prior work at the telephone company as
a general office clerk. R. 98.
Dr. Lanier opined that a person would be terminated if she
missed four or more days of work per month. R. 96-97. Dr. Lanier
also opined that a person would be terminated if she took extra
breaks that made her “less than 80 percent productive on the job.”
R. 97.
At the end of the hearing, Owens’ attorney confirmed that
Owens was amending her alleged Onset Date to November 1, 2006.
Page 21 of 33
Owens’ attorney based the amendment on Dr. Herrin’s examination
of her shoulder and knee on November 20, 2006. R. 100-01. The
ALJ concluded the hearing.
The Decision of the ALJ
The ALJ issued his decision on May 30, 2013. R. 16-27. The
ALJ followed the five-step analysis set forth in Social Security
Administration 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 her 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 equal to the criteria of 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 is not so severely
impaired, the ALJ proceeds to Step 4 of the Analysis.
Page 22 of 33
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) and
(f), 416.920(e) and (f). 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(g), 404.1560(c), 416.920(g),
416.960(c). The claimant has the burden of presenting evidence
and proving the issues on the first four steps. The 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. 20
C.F.R. §§ 404.1512, 404.1560(c); Weatherbee v. Astrue, 649 F.3d
565, 569 (7th Cir. 2011); Briscoe ex rel. Taylor v. Barnhart, 425
F.3d 345, 352 (7th Cir. 2005).
The ALJ also considered the relevant time frames for
determining eligibility for DIB benefits and SSI benefits. To be
eligible for DIB benefits, the claimant must be disabled prior to her
Date Last Insured. The date last insured depends on the claimant’s
work history. See 42 U.S.C. § 423(c)(1); 20 C.F.R. 404.131. Owens’
Page 23 of 33
Date Last Insured was December 31, 2008. R. 16. A claimant may
be entitled to SSI benefits regardless of work history or dates of
insurance; however, she may only be eligible to receive benefits
commencing on the date she applied for SSI benefits. 20 C.F.R. §
416.335. Owens applied for SSI benefits on May 7, 2013.
The ALJ found that Owens met her burden at Step 1. The ALJ
found that Owens had not engaged in substantial gainful activity
since November 1, 2006, her amended alleged Onset Date. The ALJ
found that Owens’s occasional part-time work for the insurance
adjuster and Kelly Services did not rise to the level of substantial
gainful activity. R. 18-19.
At Step 2, the ALJ found that Owens suffered from the severe
impairments of arthritis/degenerative joint disease in the knees and
left shoulder and obesity. R. 119. The ALJ found that Owens’ foot
pain and sleep apnea were non-severe because they were effectively
treated. The foot pain was treated with orthotic inserts, and the
apnea was treated with a CPAP machine. R. 19-20. The ALJ found
that Owens’ back problems were non-severe because the problems
were effectively treated by Dr. Savacion with lumbar injections. R.
20.
Page 24 of 33
At Step 3, the ALJ found that Owens’ impairments or
combination of impairments did not meet or equal a Listing. R. 21.
At Step 4, the ALJ found that Owens had the RFC to perform
light work except that she could only engage in postural activities
frequently. R. 22. The ALJ relied on the opinions of Drs. Bilinsky
and Arjmand. The ALJ gave their opinions “significant weight in
this matter.” R. 24.
The ALJ rejected Dr. Trudeau’s quoted opinion that Owens
was disabled. The ALJ found that Dr. Trudeau was an examining
physician, not a treating physician. The ALJ found that Dr.
Trudeau’s opinion was not supported by his findings. Dr. Trudeau
found that Owens had normal strength in her extremities, and his
nerve conduction/EMG studies showed only mild to moderate
neuropathies and radiculopathies. The ALJ found that these
objective findings did not support his opinions. R. 25-26.
The ALJ found that Owens’ testimony about the degree to
which she was functionally limited by her pain was not credible.
The ALJ found that the knee replacement surgery relieved most, but
not all, of her knee pain. The ALJ found that Owens’ activities were
not consistent with her testimony. She worked a part-time job.
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She took care of her personal hygiene and most of the housework
inside her home. She visited friends regularly, watched television,
and used the computer. The ALJ found that these activities, along
with the objective medical findings, did not support her testimony
about the degree of functional limitation caused by her pain. R. 26.
At Step 4, the ALJ found that Owens could return to her prior
work as a general office clerk. The ALJ relied on the RFC and the
opinion of Dr. Lanier. Based on that evidence, the ALJ found that
Owens was not disabled through the date of his opinion. R. 26-27.
The ALJ considered Owens’ obesity through the Analysis. The
ALJ noted that no medical source “specifically attributed additional
or cumulative limitations to the claimant’ (sic) obesity to the extent
that such would cause disability. The medically determinable
evidence supports the residual functional capacity finding of this
decision. This is the case even considering the existence of the
claimant’s obesity.” R. 23.
Analysis
This Court reviews the Decision of the Commissioner to
determine whether it is supported by substantial evidence.
Substantial evidence is "such relevant evidence as a reasonable
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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 his 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).
The ALJ’s finding that Owens was not entitled to DIB benefits
because she was not disabled on her Last Date Insured, December
31, 2008, was supported by substantial evidence. The opinions of
Drs. Bilinsky and Arjmand supported the finding. The records from
Dr. Herrin showed that Owens had undergone largely successful
surgeries on her right knee and both shoulders. By December 31,
2008, she was experiencing some pain in her knee, but there was
no evidence that the function of her knee was affected. Dr. Lanier’s
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opinion supported the finding that Owens could perform her prior
work as a general office clerk. The ALJ’s finding that, as of her Last
Date Insured, Owens could perform her prior relevant work was
supported by substantial evidence. Therefore, the ALJ’s
determination that Owens was not disabled for purposes of DIB
benefits was supported by substantial evidence.
However, the ALJ’s finding that Owens was not entitled to SSI
benefits because she was not disabled on or after May 7, 2013 was
not supported by substantial evidence. The relevant date for
determining whether Owens was disabled for SSI benefits was the
date of her application, May 7, 2013. Drs. Bilinsky and Arjmand
rendered opinions on Owens’ physical RFC on December 31, 2008,
the Last Date Insured for DIB benefits. R. 847-53 and R. 854-56.
The ALJ relied on the opinions of Drs. Bilinsky and Arjmand to
support his RFC finding for both DIB benefits and SSI benefits. The
ALJ gave those opinions significant weight. R. 25.
The ALJ failed to explain how the opinions of Drs. Bilinsky
and Arjmand of Owens’ RFC on December 31, 2008 were entitled to
significant weight in determining Owens’ RFC some four years and
five months later on May 7, 2013. Drs. Bilinsky and Arjmand did
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not consider the medical evidence after December 31, 2008,
including: (1) the MRI in 2010 that showed moderate spinal canal
stenosis, severe stenosis at L4/5 and mild stenosis at L5/S1; (2) the
2010 examination by Dr. Savacion that showed positive straight leg
testing bilaterally; (3) the nerve conduction/EMG studies in 2010
and 2012 that showed S1 radiculopathy, mild L5 radiculopathy,
peroneal neuropathy, and mild to moderately severe carpal tunnel
syndrome on the right and mild on the left; (4) the 2012 MRI of her
left shoulder that showed profound fatty atrophy and a thin
remnant of a tendon, as well as a muscle tear, moderate arthritis
with spurring, and osteophyte formation on the humeral head; (5)
Dr. Herrin’s opinion that the atrophy was so severe that he could
not provide any relief surgically; and (6) Owens’ second surgery on
her right knee in 2011.
Drs. Bilinsky and Arjmand did not consider the evidence
because at the time they rendered their opinions Owens had only
filed for DIB benefits, so the only relevant question was her RFC on
her Last Date Insured. Owens, however, filed her SSI application
on May 7, 2013, and the ALJ decided her SSI Benefits eligibility in
his decision. The Court does not understand how the ALJ could
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give significant weight to the opinions of Drs. Bilinsky and Arjmand
for determining Owens’ RFC on May 7, 2013, in light of the fact that
Drs. Bilinsky and Arjmand did not consider the significant medical
evidence from 2009, 2010, 2011, 2012, and 2013, including the
medical evidence mentioned in the preceding paragraph.
The ALJ, therefore, failed to explain adequately the basis for
his determination of Owens’ RFC as of May 7, 2013, the relevant
date for SSI eligibility. As a result, the ALJ’s finding at Step 4, that
Owens could perform her past relevant work from May 7, 2013, to
the date of his decision, was not supported by substantial evidence.
The ALJ’s conclusion that Owens was not disabled for purposes of
SSI benefits is reversed and remanded.
On remand, the ALJ may consider securing some additional
medical evidence or opinions to assist him in determining Owens’
RFC as of May 7, 2013, and thereafter.
Owens argues that the ALJ erred in rejecting Dr. Trudeau’s
opinion. The Court disagrees. The ALJ properly concluded that Dr.
Trudeau was not a treating physician. Dr. Trudeau was an
examining physician, not a treating physician. Treating physicians
referred Owens to Dr. Trudeau for neurological testing. Dr.
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Trudeau conducted his examination and testing and sent the
results to the treating physicians. R. 294-99 (sending results to Dr.
Siebert); R. 871-80 (sending results to Dr. McClain). The ALJ,
therefore, properly determined that Dr. Trudeau’s opinion should
not be treated as an opinion from a treating physician. See 20
C.F.R. § 404.1527(c). The ALJ correctly noted that Dr. Trudeau
found only moderate to mild neuropathies and radiculopathies and
normal strength in her extremities. These findings provide
substantial evidence to support the ALJ’s decision to reject Dr.
Trudeau’s quoted opinion because the opinion was inconsistent
with his own findings.
Owens argues that the RFC finding was not supported by
substantial evidence. The Court disagrees with respect to the
findings before Owens’ last date insured for DIB benefits, December
31, 2008. Drs. Bilinsky and Arjmand’s opinions support this
finding. In addition, the medical evidence showed that as of
December 31, 2008, she had undergone successful surgeries on her
shoulders and a largely successful right knee replacement surgery.
She stopped complaining about foot pain and had not yet begun
complaining about the treatment of her sleep apnea. This evidence
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constitutes substantial evidence to support the ALJ’s RFC finding
as of the Date Last Insured. As discussed above, the ALJ’s RFC
finding with respect to Owens’ condition on May 7, 2013, when she
filed for SSI benefits is reversed and remanded.
Owens challenges the ALJ’s credibility finding. 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 medical
records in the fall of 2008 show that Owens was improving after her
shoulder surgeries and right knee replacement surgeries,
particularly in the records from Dr. Herrin at that point in time. R.
469-74. In light of those medical records, the Court will not review
the ALJ’s credibility determination with respect to Owens’ claims of
functional limitations from her pain before the Date Last Insured of
December 31, 2008. The ALJ will necessarily need to review his
credibility determination regarding her condition on May 7, 2013,
the relevant date for SSI benefits. The current credibility
determination relied in part on her condition in 2008. R. 26.
THEREFORE, Plaintiff’s Motion for Summary Judgment (d/e
12) and Defendant’s Commissioner of Social Security’s Motion for
Page 32 of 33
Summary Affirmance (d/e 18) are ALLOWED in part and DENIED
in part. The decision of the Commissioner is AFFIRMED in part
and REVERSED and REMANDED in part.
ENTER: January 20, 2016
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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