Matthews v. Commissioner of Social Security

Filing 18

ORDER & OPINION granting 13 Plaintiff's Motion for Summary Judgment; and denying 16 Defendant's Motion for Summary Affirmance. Civil Case Terminated.In light of the parties' consent, any appeal of this ruling must be made directly to the Seventh Circuit within the time period prescribed by the Federal Rules of Appellate Procedure. Entered by Magistrate Judge Jonathan E. Hawley on 3/18/2015. (RK, ilcd)

E-FILED

Wednesday, 18 March, 2015 04:01:11 PM
Clerk, U.S. District Court, ILCD

IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
MARK A. MATHEWS,
Plaintiff,
Case No. 4:14-CV-04031

v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

Order and Opinion
The Plaintiff, Mark Mathews, filed his application for disability insurance and
Supplemental Security Income benefits on September 12, 2011, alleging that he
became disabled on August 19, 2011. At each stage of the review process, his claim
for benefits was denied. Having exhausted all of his administrative remedies, he
now asks this Court to reverse the Defendant Commissioner’s denial of his claim for
benefits. For the reasons set forth herein, this Court reverses the Commissioner’s
denial of benefits, and therefore GRANTS the Plaintiff’s Motion for Summary
Judgment (D. 13) and DENIES the Defendant’s Motion for Summary Affirmance (D.
16). 1
I
A
The issue before the Court is whether the ALJ erred when she failed to order a
consultative examination related to the Plaintiff’s impairment of his left hand, wrist,
and forearm (referred collectively herein as Mathews’s “arm”) and, in light of that
alleged failure, whether the ALJ’s RFC and conclusion that the Plaintiff is not
disabled is supported by substantial evidence. Because the inquiry before the Court
Both the Plaintiff and the Defendant consented to a U.S. Magistrate Judge deciding this case on the merits. (D.
8; D. 9).
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is solely related to the arm impairment, the Court will not discuss medical evidence
related to other impairments, except where necessary for completeness’s sake.
Although there is a great deal of medical evidence in the record concerning
Mathews’s other impairments, there is very little concerning his arm impairment.
Whether there was still enough in this record for the ALJ to properly determine
Mathews’s RFC is the central question before the Court.
Mathews’s problems with his arm began on August 17, 2011, when his
girlfriend stabbed him with a butcher knife in his left forearm (his dominant one),
resulting in extensive tendon injury. His hospital intake record notes:
Of the left posterior forearm and the extensor compartment is a
laceration of 6 cm that violates the muscles and tendons. He does have
range of motion in both the extensor and flexor motions although this
is painful and his extensor range is somewhat limited. There is
numbness and tingling to the last 3 digits of the left upper extremity
although grip strength is intact.
(D. 11-1 at ECF p. 153). His girlfriend also stabbed him in the chest with a pair of
scissors several times, but he claims no impairment due to these injuries.
He underwent surgery the next day to repair the damage, but he re-injured his hand
later in the month while picking up a pair of jeans. Upon reexamination, he showed
decreased range of motion of the fingers and left hand, precipitating another
surgery to again repair his injuries.
Mathews’s orthopedic surgeon, Dr. Aric Eckhardt, produced a record one
month later, on September 28, 2011, which indicated that Mathews had one out of
five (1/5) muscle strength in his fingers, hands, wrist, and forearm of the left upper
extremity, and forearm atrophy. He concluded that Mathews would have severe
difficulty performing all tested manipulative abilities with his left hand. (D. 11-2 at
ECF p. 18-22).
On December 9, 2011, agency physician, Dr. Francis Vincent, completed a
“Physical Residual Functional Capacity Assessment.” It does not appear as if Dr.
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Vincent examined Mathews, but rather reviewed the medical evidence, including
Dr. Eckhardt’s report. He noted the findings made by Dr. Eckhardt. He also found
that Mathews’s statements were considered credible as consistent with medical
evidence in the record, which indicated limitations with fine manipulation and grip
in his left hand. (D. 11-2 at ECF p. 97). He concluded that Mathews was “[l]imited to
occasional” reaching, handling, fingering, and feeling with the left hand. (D. 11-2 at
ECF p. 93).
The medical record is silent regarding Mathews left arm impairment for over
a year and a half until, in July of 2013, he was examined by Dr. Hassan Haji
Abdiraham. Dr. Abdiraham noted that Mathews stated he sustained injuries to his
hand from a butcher knife, and “[a]pparently he had surgery on this left hand on
August 17, 2011 then a revision surgery 3 weeks after.” (D. 11-3 at ECF p. 38). He
went on to note:
He states he is fighting disability case and would like to be referred to
orthopedics. He says he has some pain in the hand and weakness in
strength. Denies paresthesia. Surprisingly he has not seen anyone since
8/2011 when he had his surgery.
(D. 11-3 at ECF p. 39). Regarding Dr. Vincent’s own examination, in contrast to his
report of what Mathews told him, the sum total of his findings with regard
Mathews’s musculoskeletal findings were: “Comments: he has scar on left forearm.
he has good grips bilat. full distal pulses bilat. no gross sensory loss. no deformity
seen” (bad grammar in original). (D. 11-3 at ECF p. 40). Although Mathews
requested a referral to an orthopedist, he was never seen by one; nor was a
consultative examination ever ordered.
Although there is a great deal of medical evidence regarding Mathews’s other
impairments, the evidence discussed above is the entirety of the medical evidence
related to his left arm impairment.
B
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The ALJ, when assessing Mathews’s RFC related to his left arm, had this
evidence before her. She concluded that Mathews cannot climb ladders, ropes, or
scaffolding and “can frequently, but not constantly, reach, handle, finger, and feel
with the dominant left upper extremity.” (D. 11 at ECF p. 27). This conclusion
differed from the only medical opinion in the record by Dr. Vincent, who concluded
that Mathews was limited to these activities “occasionally.”
In reaching this conclusion, the ALJ gave Dr. Eckhardt’s report “little weight”
because “there is no indication that Mathew’s limitations noted by Dr. Eckhardt
persisted for at least a year following the claimant’s onset date.” (D. 11 at ECF pp.
29-30). For the same reason, she gave Dr. Vincent’s finding “little weight.” Id. Later,
she said she flat out “rejected” both of these sources. Id. Her reasons for doing so
were based upon a sprinkling of statements Mathews made to various treatment
providers for unrelated mental issues over the preceding years. For example, in
November of 2011 he said that he had to avoid “strenuous” activity; in January of
2012 he reported moderate interference with daily activities due to left hand pain; in
November of 2012 he denied any pain that restricted activity; and he sought no
treatment for his left upper extremity until July of 2013 when he saw Dr. Abdiraham
who noted that Mathews was “fighting a disability case.” Given her rejection of both
Dr. Eckhardt and Dr. Vincent’s opinions, the only medical record the ALJ was left
with was that of Dr. Abdiraham, which, as already noted, consisted of a notation
that Mathews had a scar on his left forearm, “good grips,” no “gross” sensory loss,
no deformity, and a pulse. From this information, then, she necessarily formulated
her RFC as it related to Mathew’s arm.
II
Before this Court, Mathews argues that the ALJ erred in failing to develop the
medical record and, consequently, erred in concluding that Mathews could use his
arm “frequently,” as that conclusion was not supported by substantial evidence.
Noting the paucity of evidence in the record, Mathews argues that the ALJ, at a
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minimum, should have ordered a consultative examination to assist her in
evaluating Mathews’s arm impairment. By relying solely upon the report produced
by Dr. Abdiraham, which contained no opinion about Mathews’s limitations and
very little in the way of objective information regarding his arm impairment, the
ALJ “played doctor” by interpreting the meager findings in Dr. Abdiraham’s report
to conclude that Mathews could reach, handle, finger, and feel with the dominant
left upper extremity.
The Commissioner responds that the ALJ had enough information in the
record to support her conclusion. Specifically, her RFC was supported by Mathews’s
own statements, his failure to seek any treatment for left hand pain after September
2011, his lack of complaints in other medical treatment notes, and the normal clinical
examination results.
III
A
The Court's function on review is not to try the case de novo or to supplant
the ALJ's findings with the Court's own assessment of the evidence. See Schmidt v
Apfel, 201 F3d 970, 972 (7th Cir 2000); Pugh v Bowen, 870 F2d 1271 (7th Cir
1989). Indeed, "[t]he findings of the Commissioner of Social Security as to any fact,
if supported by substantial evidence, shall be conclusive." 42 USC § 405(g).
Although great deference is afforded to the determination made by the ALJ, the
Court does not "merely rubber stamp the ALJ's decision." Scott v Barnhart, 297 F3d
589, 593 (7th Cir 2002). The Court's function is to determine whether the ALJ's
findings were supported by substantial evidence and whether the proper legal
standards were applied. Delgado v Bowen, 782 F2d 79, 82 (7th Cir 1986).
Substantial evidence is defined as such relevant evidence as a reasonable
mind might accept as adequate to support the decision. Richardson v Perales, 402 US
389, 390 (1971), Henderson v Apfel, 179 F3d 507, 512 (7th Cir 1999). Furthermore,
determinations of credibility made by the ALJ will not be overturned unless the
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findings are clearly erroneous. Anderson v Bessemer City, 470 US 564, 573 (1985);
Imani v Heckler, 797 F2d 508 (7th Cir 1986), cert denied, 479 US 988 580 (1986).
In order to qualify for disability insurance benefits, an individual must show
that his inability to work is medical in nature and that he is totally
disabled. Economic conditions, personal factors, financial considerations, and
attitudes of the employer are irrelevant in determining whether a plaintiff is eligible
for disability. See 20 CFR '' 404.1566, 416.966 (1986). The establishment of disability
under the Act is a two-step process.
First, the plaintiff must be suffering from a medically determinable physical
or mental impairment, or combination of impairments, which can be expected to
result in death, or which has lasted or can be expected to last for a continuous
period of not less than 12 months. 42 USC ' 1382(c)(a)(3)(A). Second, there must be
a factual determination that the impairment renders the plaintiff unable to engage in
any substantial gainful employment. McNeil v Califano, 614 F2d 142, 143 (7th Cir
1980). The factual determination is made by using a five-step test. See 20 CFR ''
404.1520, 416.920.

In the following order, the ALJ must evaluate whether the

claimant:
1) currently performs or, during the relevant time period, did perform any
substantial gainful activity;
2) suffers from an impairment that is severe or whether a combination of her
impairments is severe;
3) suffers from an impairment which meets or equals any impairment listed
in the appendix 2 and which meets the duration requirement;
4) is unable to perform her past relevant work; and

Should the claimant not qualify under one of Step Three’s listed impairments, the ALJ then proceeds to Step
Four to determine the claimant’s Residual Functional Capacity. Pursuant to the claimant’s RFC, the ALJ
determines under Steps Four and Five whether she is capable of performing past work or other work available
in the national economy. 20 CFR § 404.1520(e)-(g).

2

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5) is unable to perform any other work existing in significant numbers in the
national economy.
Id. An affirmative answer at any step leads either to the next step of the test, or at
steps 3 and 5, to a finding that the plaintiff is disabled. A negative answer at any
point, other than at step 3, stops the inquiry and leads to a determination that the
plaintiff is not disabled. Garfield v Schweiker, 732 F2d 605 (7th Cir 1984).
The plaintiff has the burdens of production and persuasion on steps 1 through 4.
However, once the plaintiff shows an inability to perform past work, the burden
shifts to the Commissioner to show ability to engage in some other type of
substantial gainful employment.

Tom v Heckler, 779 F2d 1250 (7th Cir 1985);

Halvorsen v Heckler, 743 F2d 1221 (7th Cir 1984).
Here, Mathews challenges the ALJ’s determination at Step Five, in that her
RFC determination is unsupported by substantial evidence, such that her conclusion
that Mathews is able to perform work in the national economy is erroneous. The
Court will accordingly limit its discussion to the issue raised.

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B
“While a claimant bears the burden of proving disability, the ALJ in a Social
Security hearing has a duty to develop a full and fair record.” Nelms v Astrue, 553
F3d 1093, 1098 (7th Cir 2009), citing Smith v Apfel, 231 F3d 433, 437 (7th Cir 2000);
Thompson v Sullivan, 933 F2d 581, 585 (7th Cir 1991). This record development can
include ordering examinations and contacting treating physicians and medical
sources to request additional records and information. Id, citing 20 CFR §§
416.912(d)-(f), 416.919, 416.927(c)(3). Reviewing courts generally uphold the
reasoned judgment of the Commissioner on how much evidence to gather. Nelms,
553 F3d at 1098. Although an ALJ has a heightened duty when a claimant is
unrepresented by counsel, the Claimant here was represented in the proceedings
below, as well as before this Court. See Thompson v Sullivan, 933 F2d 581, 586 (7th Cir
1991).
The Commissioner's regulations, 20 CFR § 404.1512(d), also provide that
before determining that a claimant is not disabled, she has the responsibility to
develop the claimant's “complete medical history,” defined as records of the
claimant's medical sources covering at least the 12 months preceding the month in
which the claimant's application is filed. The Commissioner will try to obtain
additional evidence if the evidence before her is insufficient to determine whether a
claimant is disabled or, if after weighing the conflicting evidence, she cannot reach a
conclusion. 20 CFR § 404.1527(c)(3). In that situation, she will either request
additional existing records, recontact claimant's treating sources or any other
examining sources, or ask the claimant for more information or to undergo a
consultative examination. Id; 20 CFR § 404.1512(e); Luna v Shalala, 22 F3d 687, 693
(7th Cir 1994).
Although an ALJ may seek a consultative medical exam, courts are generally
hesitant to find that an ALJ failed in her duty to develop the record on the mere fact
that an ALJ failed to receive “one last report.” See Luna v Massanari, 2001 WL 987860,
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*6 (SD Ind), citing Luna v Shalala, 22 F3d 687, 692 (7th Cir 1994). “One may always
obtain another medical examination, seek the views of one more consultant, wait six
months to see whether the claimant’s condition changes, and so on.” Luna, 22 F3d at
692, quoting Kendrick v Shalala, 998 F2d 455, 456-57 (7th Cir 1993). On the other
hand, an ALJ must have sufficient evidence in the record before declining to exercise
her discretion to not obtain an additional consultative exam. Massanari, at *6. Thus,
the prerequisite for deferring to the ALJ’s discretionary decision not to order a
consultative exam is that “sufficient evidence” already exist in the record. Because
the existing evidence in this record is woefully insufficient, the ALJ erred in failing
to obtain a consultative examination.
The medical records related to Mathews’s arm impairment consisted of his
initial hospital records related to his injury, the report of his orthopedist, Dr.
Eckhardt, the report of agency physician Dr. Vincent, and the report of examining
physician Dr. Abdiraham. The ALJ rejected the opinions of Dr. Eckhardt and Dr.
Vincent, leaving her only with the report of Dr. Abdiraham.
Dr. Abdiraham’s report, however, did not provide enough information for
the ALJ to make an informed decision about Mathews’s arm impairment. Dr.
Abdiraham’s notations that Mathews had a scar on his left forearm, “good grips,”
no “gross” sensory loss, no deformity, and a pulse provides almost no useful
information regarding any functional limitations Mathews may have. For example,
what does it mean to say Mathews had “good grips”? Even when Mathews showed
up in the emergency room with a lacerated forearm and tendons, the intake notes
showed his grip was “intact,” this despite the severe limitations noted by Dr.
Eckhardt. Does a lack of “gross” sensory loss and deformity imply anything about
Mathews’s ability to perform activities “frequently,” as opposed to “occasionally”?
No. The same is true for him having a “pulse” in both wrists; presumably, people in
comas have a pulse in their wrists as well, but they cannot perform tasks at all, let
alone “frequently” or “occasionally.” In other words, Dr. Abdiraham’s examination
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is practically useless for determining the extent of Mathews’s limitations, yet this is
the only medical record the ALJ relied upon in formulating the RFC as it relates to
Mathews’s arm.
The other medical evidence in the record, rejected by the ALJ, all supported at
least a finding consistent with Dr. Vincent’s. All this information uniformly
consisted of a finding that Mr. Mathews’s ability to reach, handle, finger, and feel
with the dominant left upper extremity was at least limited to “occasionally”
performing such activities. Not a single medical record supported a conclusion of
“frequent” performance of these activities; this conclusion was something the ALJ
formulated herself based on Dr. Abdiraham’s report, already noted as being of
almost no use in evaluating the extent of Mathews’s impairment.
Undeniably, Mr. Mathews did make a few statements over the course of
many months to medical providers which hinted that he might be less impaired
than Dr. Eckhardt and Dr. Vincent indicated. However, the ALJ cannot “cherry
pick” these statements in a vacuum to formulate an RFC without any support in the
objective medical record. The Plaintiff’s statements relied upon by the ALJ were
made in the course of numerous visits to medical professionals for serious mental
health issues. Included among the issues precipitating these visits were psychotic
episodes, hallucinations, and suicidal ideation. It is unlikely that, given the reasons
for his numerous visits to the emergency room and other medical professionals for
these mental health issues, Mathews or the medical professionals were concerned
about anything but his mental issues. Likewise, the reliability of Mathews’s
statements in this context is questionable, given the mental state he was in when he
made them. Of course, the ALJ may consider all of the Plaintiff’s statements in
formulating the RFC, but she must also have a sufficiently developed medical
record when doing so.
In sum, the ALJ should have, at a minimum, ordered a consultative medical
examination to assess the extent of Mathews’s impairment and his functional
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limitations. Her failure to do so deprived her of sufficient medical information to
formulate an RFC as it related to Mathews’s arm impairment, as well as how that
arm impairment in combination with his other impairments affected his ability to
work. Therefore, a remand is necessary so that the ALJ can at least obtain a
consultative medical examination, if not more, and reformulate Mathews’s RFC. She
should then reevaluate the proceeding steps in the process, should her RFC
determination change in light of the new medical evidence.
IV
In light of the foregoing, this Court reverses the Commissioner’s denial of
benefits, remands under Sentence Four of the Social Security Act, 42 USC § 405(g),
with instructions that the Commissioner evaluate the Plaintiff’s RFC in light of a
consultative examination regarding the impairment of his left arm and, if necessary,
reevaluate the subsequent steps in the process in light of any change in the RFC.
Accordingly, this Court GRANTS the Plaintiff’s Motion for Summary Judgment (D.
13) and DENIES the Defendant’s Motion for Summary Affirmance (D. 16).
In light of the parties’ consent, any appeal of this ruling must be made
directly to the Seventh Circuit within the time period prescribed by the Federal
Rules of Appellate Procedure.

Dated: March 18, 2015
s/Jonathan E. Hawley
U.S. Magistrate Judge

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