Cardenas v. Colvin
Filing
16
ORDER AND OPINION entered by Magistrate Judge Jonathan E. Hawley on 11/20/15. Cardenas's Motion for Summary Judgment 10 is GRANTED, the Commissioner's Motion for Summary Affirmance 14 is DENED, and the matter is REMANDED pursuant to sen tence four of 42 U.S.C. § 405(g) for the ALJ to: 1) develop the record as it pertains to the available medical opinions and conclusions; and 2) clarify her statements regarding Cardenas's alcohol use and, if necessary, engage in the materiality analysis provided in 20 C.F.R. § 404.1535. SEE FULL WRITTEN ORDER. (FDT, ilcd)
E-FILED
Friday, 20 November, 2015 04:03:00 PM
Clerk, U.S. District Court, ILCD
IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
JENNIFER SHAYNE CARDENAS,
Plaintiff,
v.
Case No. 4:14-cv-04090-JEH
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Order and Opinion
Now before the Court is the Plaintiff’s Jennifer S. Cardenas’s Motion for
Summary Judgment (Doc. 10) and the Commissioner’s Motion for Summary
Affirmance (Doc. 14). For the reasons stated herein, the Court GRANTS the
Plaintiff’s Motion for Summary Judgment, DENIES the Defendant’s Motion for
Summary Affirmance, and REMANDS the matter for additional proceedings
consistent with this Order and Opinion. 1
I
On October 17, 2011, Cardenas filed applications for disability insurance
benefits and supplemental security income benefits 2 alleging disability beginning
on April 19, 2009. Her claims were denied initially on January 27, 2012, and were
denied upon reconsideration on June 15, 2012. On August 13, 2012, Cardenas
filed a request for hearing concerning her applications for disability benefits. A
hearing was held before the Honorable Shreese M. Wilson (ALJ) on October 31,
1 References to the pages within the Administrative Record will be identified by AR [page number]. The
Administrative Record appears as (Doc. 5) on the docket.
Because the regulations governing the determination of disability for DIB, 20 C.F.R. § 404.1501 et seq., are
substantially identical to the SSI regulations, 20 C.F.R. § 416.901 et seq., the Court may at times only cite to
the DIB regulations.
2
1
2013, and at that time Cardenas was represented by an attorney. Following the
hearing, Cardenas’s claims were denied on December 6, 2013. Her request for
review by the Appeals Council was denied on August 11, 2014, making the ALJ’s
Decision the final decision of the Commissioner. Cardenas filed the instant civil
action seeking review of the ALJ’s Decision on October 7, 2014.
II
At the time she applied for benefits, Cardenas was 40 years old living in
Hampton, Illinois in a home with her boyfriend. She was a high school graduate
who had previously worked as a cashier, stocker, shoe salesperson, day care
worker, and as a sandwich maker for two days at a Blimpie sandwich shop. On
her Form SSA-3368, Cardenas provided that ADD, bi-polar, “thiatric [sic] nerve
problems,” PTSD, obsessive compulsive, and sleep apnea all limited her ability
to work.
At the hearing, Cardenas testified that she had an eight year old daughter
who was then with a temporary guardian because Cardenas had been drinking
when she previously had her daughter. Cardenas testified that she was
attempting to obtain back custody of her daughter. She testified that she saw her
daughter every other weekend when the daughter came for visits and that
Cardenas would watch a friend’s daughter so the two girls could play together.
She testified that she had a driver’s license and drove whenever necessary, but
she needed to follow another person so that she would not become lost on the
way to her destination. Cardenas testified that she smoked cigarettes and that
when she got really nervous, they helped her to calm down. She explained that
she took a special education class in math in high school. She also testified that
she could deal with money, count it, and make change as long as she had a cash
register and was told the correct amounts. She enjoyed drawing and writing
poetry. Cardenas testified that she tried to read the Bible daily and that she could
2
retain the information she read if it interested her and if she re-read it. She
testified that she had help filling out the Social Security forms.
Cardenas explained that her boyfriend had his own business doing lawn
care and house cleaning, and he also had a seasonal job. She testified that she
attempted to help her boyfriend with mowing but that she was not very good at
it, and she also served as a gopher for him while he worked. Regarding her other
work, Cardenas explained that her job at Blimpie was short-lived because she
was not trained properly, so another worker got upset with her and told
Cardenas she was no longer needed. Cardenas said that she attempted to look
for other work in decorating and in an ice cream shop setting. She also sought
work as a cashier. She explained that with her previous work, if she was given
specific things to do, she then would have to do them right away or she would
otherwise forget them.
Cardenas testified that she had been sober for a little over a year and, as a
result, her condition improved, she lost her “beer weight,” and she focused
better. She explained that she was able to do things she did on a regular basis
without issue but that she had issues with new tasks. She also explained that in
order to get her daughter back, Cardenas had to complete parenting classes and
remain sober. She testified that she saw one of her primary doctors once every
two or three months and that her counselor came out to her home to see her a
couple of times a month. She took her medications but did not take all of them
because she could not afford them. Cardenas explained that she continued to
smoke and thought she should discontinue cigarettes but that it was hard for her
to quit. She acknowledged that her medications would help her more than
cigarettes would help her.
Upon questioning by her attorney, Cardenas testified that she fluctuated
between different moods, which she did not even notice until her boyfriend
3
would point out to her that she was acting moody and being rude to people. She
testified that she felt depressed because she basically raised herself and felt alone
in the world when she was young. She also testified that she experienced anxiety
which made her feel edgy, nervous, and jittery, and her anxiety was caused by
thinking about her past and how nobody cared about her. She also said that she
became angry and irritable a lot of the time and usually that was due to missing
her daughter. Regarding what she did around her home, Cardenas testified that
she did repetitive things that did not require her to think about them such as
doing the dishes, taking out the trash, and doing the laundry. She needed to be
reminded to do things that were new to her, and she would have to write things
down so she would not forget.
Cardenas elaborated upon the extent to which she helped her boyfriend
with his jobs. She testified that she helped her boyfriend with different light jobs
for about three or four hours at a time. She said that he did have to remind her
what to do at times and that he had to help her with tasks that he gave her. She
testified that she was obsessive in worrying about her daughter, in checking to
make sure the stove was off, and in checking to make sure the doors were locked.
Cardenas testified that she left the house during the week on average two to
three times and would take the bus to get where she needed.
The ALJ proceeded to question the Vocational Expert (VE) George
Paprocki and elicited a number of answers from him regarding the jobs that
would be available to a hypothetical individual with a variety of limitations.
III
In her Decision, the ALJ found that Cardenas had the severe impairments
of major depressive disorder, anxiety, attention deficit hyperactivity disorder
(ADHD), and borderline intellectual functioning. When considering what
impairments were severe, the ALJ noted that Cardenas had a history of alcohol
4
abuse throughout the period under consideration. The ALJ also acknowledged
Cardenas’s allegations of some difficulties using her arms and hands, but the ALJ
explained that there was no diagnostic evidence or other objective findings to
suggest Cardenas had a medically determinable physical impairment that caused
such alleged physical symptoms. The ALJ further explained that a January 2012
medical consultative examination revealed no musculoskeletal abnormalities or
physical limitations. The ALJ made the following Residual Functional Capacity
(RFC) finding:
[T]he claimant has the residual functional capacity to perform a full
range of work at all exertional levels but with the following
nonexertional limitations: moderate limitations in concentration,
persistence or pace when attempting complex or detailed tasks, so
she is limited to job [sic] that do not require complex or detailed job
processes, little in the way of change in job process from day to day,
tasks that should consist of multiple self-evident tasks that can be
easily resume [sic] after momentary distraction; and the ability to
read, perform math or make change with money should not be
integral to the successful completion of job tasks.
AR 23. In making her RFC finding, the ALJ discussed Cardenas’s November 2011
Function Report and her testimony concerning depression and anxiety, past
neglect and abuse, difficulty concentrating, previous special education class in
math in high school, the frequency with which she saw her minor daughter, the
frequency of how often she drove a car and used public transportation, and the
fact that she had completed parenting classes she took as part of her effort to
regain custody of her daughter.
The
ALJ
also
discussed
Cardenas’s
prescribed
medications,
her
grandmother’s November 2011 third-party Function report, and her work
history. The ALJ concluded, based upon Cardenas’s work history, that Cardenas
had not worked for reasons unrelated to her impairments. The ALJ detailed
5
Cardenas’s daily activities and determined that those activities were not limited
to the extent one would expect given Cardenas’s complaints of disabling
symptoms and limitations. In support of that finding, the ALJ cited Cardenas’s
own Function Report and testimony, her grandmother’s Function Report, and
January 2012 treatment notes.
In regard to her mental health impairments of major depressive disorder,
anxiety, and ADHD, the ALJ made the following finding:
[T]he longitudinal evidence of record indicates that, after an initial
exacerbation of symptoms due to an extreme situational stressor
(her husband’s suicide in April 2009), the severity and frequency of
the claimant’s symptoms were generally exacerbated by alcohol
abuse, and controlled by medication compliance and discontinuance
of alcohol abuse.
AR 25. The ALJ noted the instances in the record where Cardenas’s alcohol
consumption was detailed, and the ALJ noted the effects of that consumption on
her symptoms of impairment. The ALJ went into extensive detail about
Cardenas’s GAF scores and how Cardenas’s low GAF scores coincided with her
alcohol use. In the context of GAF scores, the ALJ also stated that the cited
treatment notes “strongly suggest [Cardenas’s] ongoing symptoms have
occurred because she had not complied with her prescribed medication regimen,
albeit for financial reasons.” AR 27. In addition to the evidence cited regarding
Cardenas’s alcohol consumption, the ALJ specifically cited to a January 2012
consultative examination, January 2013 treatment notes by Dr. Mukesh Kumar,
M.D., various treatment notes by primary care physician Dr. John Ciaccio, M.D.,
and a July 2013 Psychiatric/Psychological Impairment Questionnaire completed
by Dr. Ciaccio in her discussion of Cardenas’s mental health impairments and
borderline intellectual functioning.
6
Central to the ALJ’s Decision were medical opinions provided by the
psychologists employed by the State Disability Determination Services and
Cardenas’s treating physician Dr. Ciaccio. Dr. Hudspeth’s opinion was dated
January 6, 2012. AR 610-22. His “Medical Disposition” was that an RFC
assessment was necessary, and he based that disposition on affective disorders,
anxiety-related disorders, personality disorders, and substance addiction
disorders. He also opined that “MDD,” “GAD,” and “DX of narcissitic PD,” were
medically determinable impairments that were present but that did not precisely
satisfy the diagnostic criteria. He checked the box for “Behavioral changes or
physical changes associated with the regular use of substances that affect the
central nervous system.” AR 618. He rated Cardenas’s functional limitations as
mild and moderate with no episodes of decompensation of extended duration. In
his Consultant’s Notes, Dr. Hudspeth identified treatment notes dated April 2008
through October 2011 and therapist notes dated December 2011 that he
considered. Dr. Hudspeth lastly stated, “No medical source statement.” AR 622.
Dr. Hudspeth also completed a Mental Residual Functional Capacity
Assessment dated January 6, 2012. He checked “Not Significantly Limited” or
“Moderately Limited” for the various categories. AR 624-25. In the narrative
section of the Assessment form, Dr. Hudspeth elaborated:
This claimant has MER indicating sufficient cognitive, memory and
thought processing skills to retain the ability to understand,
remember and carrying [sic] out at least simple one/two step
repetitive tasks. There is no MER documenting any significant social
or behavioral impediment to the work environment. There is no
MER indicating any significant problems learning route to a work
site. There is no significant data indicating any issues with this
claimant’s ability to adapt to work environment.
AR 626.
7
Dr. Taylor’s opinion was dated June 2, 2012. He completed a Psychiatric
Review Technique form on which he checked “Insufficient Evidence” as the
“Medical Disposition. AR 662. He also checked “These findings complete the
medical portion of the disability determination” without checking any categories
upon which the medical disposition was based. AR 662. The remainder of the
form was left blank. In the narrative section of the form, Dr. Taylor stated in
relevant part:
No MSS, no weight given.
Credibility cannot be determined due to insufficient evidence prior
to DLI.
There is insufficient evidence prior to DLI to document an
impairment of disabling severity.
AR 674.
A discrete part of the ALJ’s Decision was dedicated to Dr. Ciaccio’s
multiple medical source statements. The ALJ detailed Dr. Ciaccio’s answers in
his July 2013 Psychiatric/Psychological Impairment Questionnaire including that
the combined effects of Cardenas’s mental impairments “markedly limited” her
ability to perform a number of mental function limitations. He checked “mildly
limited” and “Moderately limited” in other instances. Dr. Ciaccio also opined
that Cardenas was incapable of even a “low stress” job and assigned her a GAF
score of 50 which Dr. Ciaccio identified as her lowest GAF score of the past year.
He gave her prognosis as “poor.” 765. Dr. Ciaccio opined that Cardenas’s
impairments were likely to produce “good days” and “bad days,” and Cardenas
was likely to be absent from work more than three times a month as a result of
her impairments or treatment. AR 770-71.
As for the weight she gave all of these medical opinions, the ALJ first
stated that the RFC conclusions reached by the physicians employed by the State
Disability Determination Services supported a finding of “not disabled” and they
8
deserved “some weight” where there existed a number of “other reasons” to
reach similar conclusions. AR 27. She then gave “little weight” to Dr. Ciaccio’s
opinions. The ALJ explained:
Although the medical opinion of a treating physician is entitled to
controlling weight so long as it is well-supported by medically
acceptable clinical and laboratory techniques and not inconsistent
with the other substantial evidence of record, that is not the case
with the opinions of Dr. Ciaccio for multiple reasons.
AR 28. The ALJ went on to articulate three particular reasons for assigning “little
weight” to Dr. Ciaccio’s medical opinion: 1) Dr. Ciaccio apparently relied quite
heavily on the subjective reports of symptoms and limitations provided by
Cardenas, and seemed to uncritically accept as true most, if not all, of what
Cardenas reported; 2) Dr. Ciaccio’s opinion was without substantial support
from the other record evidence, including his own progress notes; and 3) the
possibility that a doctor may express an opinion in an effort to assist a patient
with whom he or she sympathizes for one reason or another. AR 28-29.
Ultimately, the ALJ determined that the record evidence did not support
Cardenas’s allegations of totally incapacitating symptoms.
IV
Cardenas argues that the ALJ committed the following errors: 1) the ALJ
failed to properly weigh the medical evidence; and 2) the ALJ failed to properly
evaluate Cardenas’s credibility.
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 F.3d 970, 972 (7th Cir. 2000); Pugh v. Bowen, 870 F.2d 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 U.S.C. § 405(g).
Although great deference is afforded to the determination made by the ALJ, the
9
Court does not "merely rubber stamp the ALJ's decision." Scott v. Barnhart, 297
F.3d 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 F.2d 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 U.S.
389, 390 (1971), Henderson v. Apfel, 179 F.3d 507, 512 (7th Cir. 1999).
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 C.F.R. §§ 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 U.S.C. § 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 F.2d 142, 143 (7th Cir. 1980). The factual determination is made by
using a five-step test. See 20 C.F.R. §§ 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;
10
3)
suffers from an impairment which meets or equals any
impairment listed in the appendix and which meets the
duration requirement;
4)
is unable to perform her past relevant work which includes an
assessment of the claimant’s residual functional capacity; and
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 F.2d 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 F.2d 1250 (7th Cir.
1985); Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984).
In the instant case, Cardenas claims error on the ALJ’s part at Step Four.
A
Cardenas argues that the ALJ erred by giving “some weight” to the
opinions from non-examining state agency medical consultants instead of giving
any probative weight to the treating specialist, Dr. Ciaccio. She argues that the
ALJ’s reasons for rejecting Dr. Ciaccio’s opinions were insufficient, the ALJ failed
to identify substantial evidence contradicting Dr. Ciaccio’s opinions, the ALJ
erred by finding Dr. Ciaccio’s opinions inconsistent with her activities of daily
living, the ALJ inappropriately speculated that Dr. Ciaccio rendered his opinion
out of sympathy for her, and the opinions provided by the non-examining
psychologists failed to rise to the level of substantial evidence. The
11
Commissioner counters that the ALJ thoroughly considered Dr. Ciaccio’s
opinions and reasonably concluded that they were entitled to only little weight.
The Commissioner argues that the ALJ discussed the discrepancies between Dr.
Ciaccio’s opinions and the medical record as a whole, including Dr. Ciaccio’s
own
treatment
notes.
The
Commissioner
also
argues
that
Cardenas
mischaracterizes the ALJ’s Decision regarding Dr. Ciaccio’s potential bias, and
that the ALJ reasonably explained her finding in that regard. Additionally, the
Commissioner argues that the ALJ was required to consider the opinions
provided by the non-examining psychologists.
Cardenas argues that the opinions provided by the non-examining
psychologists (Dr. Hudspeth and Dr. Taylor) failed to rise to the level of
substantial evidence where the first non-examining psychologist reviewed
records only through December 2011 without the benefit of any medical opinion
regarding Cardenas’s level of functioning, and the second non-examining
psychologist reviewed the file stating there was insufficient evidence to give an
opinion on Cardenas’s level of mental functioning. In response, the
Commissioner argues that the ALJ appropriately gave some weight to the
opinions of Drs. Hudspeth and Taylor because they were consistent with the rest
of the record and there is nothing to suggest that the ALJ relied upon those
opinions to discount Dr. Ciaccio’s opinions.
The ALJ erred by assigning “some weight” to the non-examining
psychologists’ opinions. The ALJ gave “some” weight to opinions that were
simply insufficient. Dr. Hudspeth’s opinion was shaped without medical records
from essentially half of the period the ALJ was required to consider. SSR 96-6p
plainly states that “the opinion of a State agency medical or psychological
consultant may be entitled to greater weight than a treating source’s medical
opinion if the State agency medical or psychological consultant’s opinion is based
12
on a review of a complete case record that includes a medical report from a
specialist in the individual’s particular impairment which provides more
detailed and comprehensive information than what was available to the
individual’s treating source.” (emphasis added). Here, the ALJ’s error in
affording some weight to Dr. Hudspeth’s opinion was egregious where: 1) Dr.
Hudspeth was a non-examining medical source; and 2) he did not have the
complete case record to review. See 20 C.F.R. § 404.1527(c)(1) (“Generally, we
give more weight to the opinion of a source who has examined you than to the
opinion of a source who has not examined you”); see also Young v. Barnhart, 362
F.3d 995, 1002 (7th Cir. 2004) (finding that the ALJ’s decision was supported by
substantial evidence where the ALJ did not improperly reject an examining
physician’s opinion in favor of a non-examining physician’s decision). Moreover,
Dr. Hudspeth’s opinion was not shaped with any medical source statements (i.e.
an opinion from treating physician Dr. Ciaccio), let alone shaped with a medical
report from a specialist. Dr. Taylor also had no medical source statements in
front of him at the time he completed the Psychiatric Review Technique form.
AR 662-74.
The ALJ’s error in improperly weighing the non-examining psychologists’
opinions is exacerbated by the fact that she correctly weighed treating doctor Dr.
Ciaccio’s opinion when she gave it “little weight” because, in doing so, the ALJ
was left with insubstantial evidence to support her RFC finding. While an ALJ
must give controlling weight to the medical opinion of a treating physician, the
ALJ must do so only if the treating physician’s opinion is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and not
inconsistent with other substantial evidence.” Bauer v. Astrue, 532 F.3d 606, 608
(7th Cir. 2008), citing Hofslien v. Barnhart, 439 F.3d 375, 376 (7th Cir. 2006); 20
C.F.R. § 404.1527(c)(2); 20 C.F.R. §416.927(c)(3). If the ALJ does not give a treating
13
physician’s opinion controlling weight, the Social Security regulations require
the ALJ to consider: 1) the length, nature, and extent of the treatment
relationship; 2) the frequency of examination; 3) the physician’s specialty; 4) the
types of tests performed; 5) and the consistency and supportability of the
physician’s opinion. 20 C.F.R. § 404.1527; 20 C.F.R. § 416.927; Moss v. Astrue, 555
F.3d 556, 561 (7th Cir. 2009).
Here, the ALJ clearly articulated her reasons for not giving Dr. Ciaccio’s
opinions controlling weight by specifying three key issues with his opinions and
by elaborating upon those issues with citation to the record evidence. The ALJ
discussed at length in rejecting Dr. Ciaccio’s opinions and elsewhere in the
Decision how the longitudinal evidence of record did not support the extent of
limitations as opined by Dr. Ciaccio. The ALJ specifically explained that Dr.
Ciaccio’s opinion about how Cardenas’s PTSD interfered with her ability to hold
jobs in the past contrasted with her own statements about why her last two jobs
ended; her own statements did not implicate PTSD as a reason. The ALJ noted
the extent to which Cardenas continued to engage in activities of daily living as
another reason for finding that Dr. Ciaccio’s opinions were without substantial
support from other record evidence.
To the extent that Cardenas takes issue with the ALJ’s discussion of her
GAF scores, the ALJ committed no error. The ALJ discussed the fluctuations in
Cardenas’s GAF scores elsewhere in the Decision to illustrate the effect of alcohol
and medication non-compliance on Cardenas’s adaptive functioning. The ALJ
addressed two different GAF scores when discussing Dr. Ciaccio’s opinions as
another example of how his opinions differed from other substantial evidence of
record. As the Commissioner argues, the ALJ did not rely solely upon Cardenas’s
GAF scores in assessing her RFC. The ALJ also did not commit error by equating
Cardenas’s ability to perform certain daily activities with the ability to sustain
14
full-time work in light of her mental impairments. Instead, the ALJ considered
Cardenas’s daily activities for purposes of determining just how disabling her
alleged symptoms and limitations were and how much weight should be given
to Dr. Ciaccio’s opinions regarding Cardenas’s abilities and limitations. In other
words, the ALJ did not formulate an RFC based only, or even mostly, upon
Cardenas’s activities of daily living.
Further, the ALJ provided a detailed explanation for giving Dr. Ciaccio’s
opinion less weight, in part, because of the possibility that Dr. Ciaccio as
Cardenas’s treating doctor may have expressed an opinion in an effort to assist
Cardenas with whom he sympathized. The ALJ did not just speculate that Dr.
Ciaccio may have rendered his opinions out of sympathy. The ALJ cited Dr.
Ciaccio’s treatment notes in which he stated: that both Cardenas and her
boyfriend were self-employed and made very little money each month; that
Cardenas experienced anxiety with regard to regaining custody of her daughter;
that Cardenas had many social and financial stressors affecting her ability obtain
her prescriptions; that Cardenas had a lot of stress financially and due to going to
court for disability and to get her daughter back and due to car trouble and
worries over her boyfriend losing his job; and that he and Cardenas discussed
him writing a letter to her township stating that she was unable to work due to
her mental illness. AR 29. The ALJ expressly stated, “While it is difficult to
confirm the presence of such [sympathetic] motives, they are more likely in
situations where the opinion in question departs substantially from the rest of
the evidence of record, as in the current case.” AR 29. The Court is “not required
to ignore incentives in resolving issues of credibility” where, for example, there
is evidence of record to indicate that the personal physician “might have been
leaning over backwards to support the application for disability benefits.”
Whitney v. Schweiker, 695 F.2d 784, 789 (7th Cir. 1982), quoting Cummins v.
15
Schweiker, 670 F.2d 81 (7th Cir. 1982). Here, as the Commissioner argues, the ALJ
pointed to evidence of record to support her conclusion that Dr. Ciaccio’s
opinions may have been skewed by his sympathy for Cardenas which in turn led
the ALJ to discount his opinions.
Next, while the Commissioner would be on firmer ground with regard to
the weight the ALJ gave Dr. Ciaccio if the ALJ expressly discussed all of the
factors set forth in 20 C.F.R. § 404.1527 and 20 C.F.R. § 416.927, SSR 96-2p does
not state that the ALJ must in fact expressly discuss all of the listed factors; SSR
96-2p provides that a treating source medical opinion must be weighed using all
of the factors. The Seventh Circuit has repeatedly stated that an ALJ “must
minimally articulate his reasons for crediting or rejecting evidence of disability.”
Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000), citing Scivally v. Sullivan, 966
F.2d 1070, 1076 (7th Cir. 1992). The ALJ minimally articulated her reasons for
giving Dr. Ciaccio’s opinions little weight. Moreover, in light of the clearly
articulated reasons the ALJ set forth for giving Dr. Ciaccio’s opinion little weight,
the ALJ’s error in expressly discussing all of the listed factors was harmless. The
Court is mindful that “administrative error may be harmless,” McKinzey v.
Astrue, 641 F.3d 884, 892 (7th Cir. 2011), and that the Court ought not remand a
case to the ALJ where it is convinced that the ALJ will reach the same result. Id.
Here, the Court is convinced that the ALJ would reach the same result regarding
Dr. Ciaccio’s opinions in light of the reasons the ALJ set forth for weighing that
doctor’s opinions as she did. The ALJ made clear the basis on which she
determined that Dr. Ciaccio’s opinions were inconsistent with other substantial
evidence.
Cardenas partly supports her argument with citations to Seventh Circuit
case law which provide that opinions provided by examining physicians cannot
be rejected for the mere reason that they contradict the opinion of a non16
examining physician. See Young v. Barnhart, 362 F.3d 995, 1002 (7th Cir. 2004),
citing Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003) (“An administrative law
judge can reject an examining physician's opinion only for reasons supported by
substantial evidence in the record; a contradictory opinion of a non-examining
physician does not, by itself, suffice”). Here, the ALJ did not reject Dr. Ciaccio’s
opinions solely because they contradicted with Dr. Hudspeth’s or Dr. Taylor’s.
The ALJ, as discussed below, rejected Dr. Ciaccio’s opinion for discrete reasons
that did not include the fact that his opinions contradicted Drs. Hudspeth’s and
Taylor’s opinions.
Nevertheless, the ALJ committed error by giving “some weight” to Dr.
Hudspeth’s and Dr. Taylor’s opinions and “little weight” to Dr. Ciaccio’s
opinions where the ALJ was essentially left with no medical opinions regarding
the limitations caused by Cardenas’s impairments. In other words, she
formulated an RFC unsupported by substantial evidence. This matter must
therefore be remanded for the ALJ to more fully develop the record as it pertains
to the available medical opinions and conclusions.
B
The final argument Cardenas makes pertains to the ALJ’s evaluation of her
credibility. Cardenas argues that the ALJ’s credibility findings largely mirror the
insufficient reasons she gave for rejecting Dr. Ciaccio’s opinions, that Cardenas’s
activities of daily living do not establish her capacity to withstand the mental
demands of full-time competitive work, and the ALJ was not permitted to create
a backdoor method of denying Cardenas’s claim based upon substance use
without analyzing the effects of any substance use under the materiality
standards required by the regulations. Hence, the Commissioner counters that
just as Cardenas’s arguments in connection with Dr. Ciaccio’s opinions were
unpersuasive, they remain unpersuasive in connection with the ALJ’s credibility
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determination. The Commissioner further argues that the ALJ thoroughly
explained her reasons for finding that Cardenas’s allegations were not entirely
credible.
20 C.F.R. § 404.1535 clearly provides that “[i]f we find that you are disabled
and have medical evidence of your drug addiction or alcoholism, we must
determine whether your drug addiction or alcoholism is a contributing factor
material to the determination of disability.” (emphasis added). The procedures
outlined in 20 C.F.R. § 404.1535(b) provide direction on how, after a finding of
disability is made, the ALJ should determine whether alcohol or drug addiction
are a “contributing factor” to the disability, thereby precluding benefits
notwithstanding the initial finding of disability if such use is a contributing
factor. Clearly, it is unnecessary for an ALJ to go through the procedures of §
404.1535 when the ALJ does not first determine that the claimant is disabled after
considering the claimant’s impairments and substance abuse in combination. On
its face, the ALJ’s Decision here presented no occasion for the ALJ to perform the
materiality analysis where the ALJ did not expressly find that Cardenas was
disabled after considering her impairments and alcohol use in combination.
However, one sentence in the Decision raises the possibility that the ALJ may
have believed that Cardenas was disabled when using alcohol but not disabled
after application of the materiality analysis in the Regulations. 3 When addressing
Cardenas’s severe mental health impairments, the ALJ did discuss at some
length Cardenas’s alcohol use. The ALJ found:
[T]he totality of the evidence of record shows the claimant’s anxiety
and depression were not disabling throughout the period under
consideration; rather, her symptoms were relatively well-controlled
when compliant with her medication (and not abusing alcohol),
The Court notes that while just one sentence undoubtedly raises this possibility, the ALJ’s Decision is
actually replete with discussion of Cardenas’s alcohol use.
3
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despite occasional exacerbations related to significant social
stressors.
AR 26.
On remand, the ALJ should clarify this statement and if, in fact, concludes
that Cardenas is disabled when using alcohol but is not disabled under the
relevant Regulations, the ALJ must then engage in the materiality analysis and
determine whether, notwithstanding Cardenas’s alcohol use, she would or
would not be disabled.
V
For the reasons set forth above, Cardenas’s Motion for Summary Judgment
(Doc. 10) is GRANTED, the Commissioner’s Motion for Summary Affirmance
(Doc. 14) is DENED, and the matter is REMANDED pursuant to sentence four of
42 U.S.C. § 405(g) for the ALJ to: 1) develop the record as it pertains to the
available medical opinions and conclusions; and 2) clarify her statements
regarding Cardenas’s alcohol use and, if necessary, engage in the materiality
analysis provided in 20 C.F.R. § 404.1535.
It is so ordered.
Entered on November 20, 2015.
s/Jonathan E. Hawley
U.S. MAGISTRATE JUDGE
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