Bennett v. Berryhill
Filing
20
ORDER AND OPINION entered by Magistrate Judge Jonathan E. Hawley on 9/25/2018. IT IS ORDERED: the Plaintiff's Motion for Summary Judgment 13 is GRANTED, the Defendant's Motion for Summary Affirmance 16 is DENIED, and this matter is REMANDED pursuant to Sentence Four of 42 U.S.C. § 405(g) for the ALJ to apply the proper legal standards and to accurately recite the evidence of record upon which he relies. SEE FULL WRITTEN ORDER. (SAG, ilcd)
E-FILED
Tuesday, 25 September, 2018 04:05:10 PM
Clerk, U.S. District Court, ILCD
IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
BRETT B.,
Plaintiff,
v.
Case No. 4:17-cv-04107-JEH
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Order and Opinion
Now before the Court is the Plaintiff Brett B.’s Motion for Summary
Judgment (Doc. 13), the Commissioner’s Motion for Summary Affirmance (Doc.
16), and the Plaintiff’s Reply (Doc. 18). 1 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 this matter for proceedings
consistent with this opinion. 2
I
Brett B. filed his application for disability insurance benefits (DIB) on March
29, 2013. He alleged disability beginning on October 1, 2009. His claim was denied
initially on August 26, 2013 and was denied upon reconsideration on February 19,
2014. Brett filed a request for hearing concerning his application for DIB on March
3, 2014. A hearing was held before the Honorable David W. Thompson (ALJ) on
April 16, 2015. At the hearing, Brett was represented by counsel and a Vocational
The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 11, 12).
References to the pages within the Administrative Record will be identified by AR [page number]. The
Administrative Record appears as (Doc. 8) on the docket.
1
2
1
Expert (VE) testified. Following the hearing, Brett’s claims were denied on June
23, 2015. His request for review by the Appeals Council (AC) was granted and the
AC declined to adopt the ALJ’s evaluation at Step Four of the sequential
evaluation process that Brett could return to past relevant work.
The AC
proceeded to find at Step Five that Brett could perform a significant number of
jobs in the national economy and he was therefore not disabled from October 1,
2009 through December 31, 2014, his date last insured.
II
Brett was 43 years old on the alleged disability onset date, and at the time
he applied for DIB he was living in Victoria, Illinois. At the hearing, Brett testified
that he lived with his wife in a two-story home. On his Form SSA-3368, Brett listed
the physical and mental conditions that limited his ability to work as follows:
chronic obstructive pulmonary disease (COPD); sciatica; foot growth; depression;
anxiety with panic attacks; bone spurs; chronic back pain; and migraines. AR 273.
At the hearing, Brett testified that his house was a two-story home but that
he had been sleeping on the couch on the house’s first floor for the past three years
as the steps to the second floor were “just too difficult for [him] to navigate.” AR
56-57. He testified regarding his previous receipt of worker’s compensation in
2009 due to a hernia injury, in 2006 due to a back injury, and in 2004 or 2005 due
to a right leg injury. The last time he collected unemployment benefits was in 2010.
He attempted to go back to work in 2012. Brett testified that the 2012 job came to
an end because it was physically too demanding. At that job, he was required to
lift “[m]aybe 20 pounds at the most.” AR 63.
Brett also testified about his medications and stated that he had been on
narcotic pain medication on a daily basis since 2005 or 2006. He stated that his
doctor was slowly weaning him off of Vicodin though he suggested, per his
doctor, he might have to take narcotic pain medication the rest of his life. Brett
2
testified that his medications helped “a little bit” and made him tired “sometimes.”
AR 65. Brett next testified he first treated with his family physician, Dr. Valarie
Flacco-Nasselroad, M.D. (Dr. Flacco) since 2003 or 2004, last treated with her in
January of 2015 (three months before the hearing), and saw her at least once every
three months. The ALJ then questioned Brett about the December 17, 2014 Social
Security General RFC Questionnaire (Questionnaire) Dr. Flacco completed. Brett
explained Dr. Flacco did not perform any physical functional or psychological
tests on him prior to completing the Questionnaire though others did perform
physical functional testing. Brett was present when Dr. Flacco completed the
Questionnaire. She asked him questions that were on the form and then wrote his
answers down.
Brett estimated the last time he had an X-ray or MRI of his lower back was
in 2012, but his attorney clarified that the last MRI of the lumbar spine done that
was in the record was dated March 8, 2014. Brett guessed that the first X-ray or
MRI of his lower back was done in 2002. Brett’s attorney explained to the ALJ that
the March 2014 MRI noted that it was compared to an MRI done in August 2009
and the findings in 2014 were “quite similar” to those seen on the previous 2009
exam. AR 70. The attorney also stated the 2009 MRI was not included. Brett
testified that the diagnosis based upon the 2014 MRI was degenerative disc disease
and he had “lots of problems associated with that[.]” AR 70. He explained he
received physical therapy and electrical impulses for his low back but surgery was
not recommended for it.
The ALJ next questioned Brett about his feet issues, COPD, migraines, bone
spurs, depression, and anxiety. As to those issues, the ALJ asked Brett whether he
took medication for them, when he last saw a doctor to treat the given issue, when
he was diagnosed and who diagnosed him with the given issue, and whether he
went to the emergency room because of those issues. The ALJ also asked Brett
3
how many miles he drove in a typical week (“[m]aybe 50, at the most”), whether
he was able to take care of his personal hygiene needs (“[y]es”), and if he ever
smoked (he quit eight years before the hearing). AR 76-77.
Upon questioning by his attorney, Brett testified that he experienced
numbness in his left arm for a “couple years” and experienced limitations with its
use. AR 77-78. He stated he could not lift as much with his left arm and with his
right, and two of his left hand fingers and thumb were numb “generally most of
the time[.]” AR 78. The questioning continued:
Q.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
And how much can you lift with let’s say both of your hands?
***
At once?
- pain wise, going, lifting –
Comfort level, how much can you lift comfortably?
Ten pounds.
And with your left hand, how much can you lift approximately?
Compared to my right hand?
Sure.
Maybe seven at a comfort level.
AR 78. Brett’s attorney then asked him to elaborate upon his feet issues. His
attorney also noted that Brett asked the ALJ whether he could stand up a couple
of times during the hearing and asked Brett why he was unable to sit. Brett
responded he was unable to sit because of pain in his groin and back. He also
testified about testicle pain he experienced and explained it as “leftover pain from
right inguinal surgery, hernia surgery.” AR 80. He rated the pain in his back, with
medication, as a six or seven out of ten and, at times, the medication did not work
at all. He previously tried a back brace which made the incision areas from earlier
surgery inflamed such that the brace hurt him “terribly.” AR 81.
The ALJ then asked Brett follow up questions regarding the numbness in
his left arm. Brett testified that the diagnosis for his left arm had “not been
4
explored fully” and he believed his back was the cause of his arm issues. AR 82.
He said the pain emanated from behind his shoulder blade. Brett’s attorney
interjected that there was a MRI of Brett’s cervical spine which mentioned a disc
bulge and possible C7 root radiculopathy, a November 2012 X-ray of Brett’s
cervical spine, and a X-ray of Brett’s left shoulder in the record as well. Brett
additionally testified that his left arm numbness and tingling were treated with
medications “but nothing worked.” AR 84. The ALJ proceeded:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Okay. Now there’s nothing wrong with your right arm, correct?
That’s correct, Your Honor.
Now what’s the maximum amount of weight you can lift with your
right arm?
Well, I tried to lift a couple gallons of gas in October, and turned the
wrong way and ended up in the emergency room, Your Honor, so I
don’t know if I could give myself a fair – or you a fair estimate.
Well, you could tell us how much you could lift with your left arm,
and that’s the one that you have problems with? So I’m curious why
you can’t tell me how much you can lift with your right arm, the one
you don’t have any problems with?
I just – okay, maybe 10, 15 pounds, Your Honor –
Okay. And what is it that limits your ability to lift with your right
arm?
Pain, Your Honor, back pain, testicular pain and pain in my feet, not
to mention neck pain.
AR 84-85.
The VE was then questioned.
III
In his Decision, the ALJ determined that Brett had the severe impairments
of degenerative disc disease of the lumbar and cervical spine, arthrosis,
neuropathy, and chronic pulmonary insufficiency. AR 34. The ALJ made the
following residual functional capacity (RFC) finding:
[T]hrough the date last insured, the claimant had the residual
functional capacity to perform light work as defined in 20 CFR
5
404.1567(b) except is limited to occasional climbing of ropes and
scaffolds and occasional stooping; and he needs to avoid concentrated
exposure to extreme cold, fumes, odors, dusts, gases and unprotected
heights.
AR 40. In his Decision, the ALJ discussed medical evidence of record, including
that pertaining to Brett’s January 2010 hernia repair surgery, an April 2012
emergency room visit for complaints of fatigue, a November 2012 emergency
room visit for complaints of left shoulder and neck pain, and an October 2014
emergency room visit for complaints of pain in his low back and groin after
straining while lifting. The ALJ also considered various imaging results, including
an X-ray of Brett’s cervical spine in November 2012, an X-ray of his feet in June
2012, an MRI of his cervical spine in February 2013, and an MRI of the lumbar
spine in March 2014 due to Brett’s complaints of low back pain. The ALJ explained
the November 2012 X-ray of Brett’s cervical spine “revealed some mild narrowing
of the C4-C5 foramina, but no acute changes.” AR 43. The shoulder X-ray done
that same day “revealed mild osteoarthritis at the AC joint with small
hypertrophic spurs,” and the 2012 feet X-ray “revealed only mild degenerative
changes involving the first metatarsophalangeal articulations and mild spurring
of the dorsal midfeet.” Id. The 2013 cervical spine MRI revealed degenerative
changes and minimal disc bulge at C3-C4 with mild to moderate foraminal
narrowing at several levels, but no significant compromise of the spinal canal. Id.
(emphasis in original). With regard to the March 2014 MRI of Brett’s lumbar spine,
the ALJ stated:
An MRI of the lumbar spine was performed in March 2014 due to
[Brett’s] complaints of low back pain. The MRI revealed multilevel
degenerative disc disease with predominately facet hypertrophy,
most significant at L2-L3, L3-L4, and L5-S1. Findings were mostly
consistent with that seen on previous MRI in 2009 with only mild
progression at level L5-S1. There was no indication of nerve root
6
compression or central spinal stenosis. There was only mild disc
bulging and mild loss of disc height noted[.]
AR 37.
The ALJ further noted Brett attended physical therapy at times for his
complaints of cervical spine pain and shoulder pain. He also addressed Brett’s
treating physician Dr. Flacco’s treatment notes.
Her December 2013 notes
included Brett’s reported daily headaches or migraines and chronic back pain, and
her examination that day “revealed no abnormalities except for neck pain with
palpation.” AR 36. The ALJ addressed Brett’s consultative physical examination
with Dr. William Lopez in June 2013 at which time Brett reported constant
throbbing back pain with occasional radiation to his right leg and knee. The
examination was within normal limits except for some soreness with full range of
motion of the lumbar spine. AR 36. The ALJ detailed Brett’s psychological
consultative examination with Paul Sather, Ph.D. which also took place in June
2013. At that examination, Brett reported mental symptoms of depressed mood,
sleep difficulties, irritability, concentration problems, and monthly anxiety and
panic attacks. The examination revealed Brett to be oriented with intact memory
and appropriate thought processes.
The ALJ also considered Dr. Flacco’s December 2014 Questionnaire in which
she noted the relevant dates for her assessment were from October 1, 2009 to the
then-present. The ALJ ultimately did “not find this opinion to be supported by or
consistent with the medical evidence of record as a whole, including Dr. Flacco’s
own progress notes and evidence from other providers.”
AR 37.
The ALJ
accordingly did not afford Dr. Flacco’s opinion controlling weight.
In considering Brett’s credibility and resulting RFC, the ALJ considered
Brett’s hearing testimony, Dr. Flacco’s Questionnaire opinion, the objective
medical evidence, Dr. Flacco’s records, the State Agency physicians’ opinions, and
7
the State Agency psychologists’ findings. The ALJ ultimately determined that
Brett’s medically determinable impairments could reasonably be expected to
cause the alleged symptoms, but his statements concerning the intensity,
persistence, and limiting effects of those symptoms were not entirely credible “for
the reasons explained earlier in this decision.” AR 44.
IV
Brett argues the ALJ’s RFC was not supported by substantial evidence and
the ALJ failed to properly address Brett’s subjective testimony.
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 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 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. The establishment of disability under the Act is a two-step process.
8
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. § 423(d)(1)(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.
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 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).
9
In the instant case, Brett claims error on the ALJ’s part at Step Four.
B
Brett’s two arguments focus upon the ALJ’s consideration of the record
evidence in formulating Brett’s RFC. A claimant’s RFC “is the most he can still do
despite his limitations.” 20 C.F.R. § 404.1545(a). An RFC assessment must include a
narrative discussion describing how the evidence supports each conclusion, citing
specific medical facts (e.g. laboratory findings) and nonmedical evidence (e.g., daily
activities, observations).” SSR 96-8p; see also Dixon v. Massanari, 270 F.3d 1171, 1178
(7th Cir. 2001) (“In assessing the claimant’s RFC, the ALJ must consider both the
medical and nonmedical evidence in the record”).
1
Brett first takes issue with the ALJ’s “grossly inaccurate” statement
summarizing the results of his 2014 MRI of his lumbar spine. He argues the fact that
his 2014 MRI was mostly consistent with the one performed in 2009 illustrates that his
back impairment was well-supported for the entire period in question. He further
argues the ALJ interpreted MRI results without medical opinion support and played
doctor by interpreting the findings. The Commissioner disputes that the ALJ’s RFC
finding is not supported by substantial evidence where the reviewing State Agency
physicians’ opinions and objective medical evidence supported the ALJ’s Decision,
and the ALJ reasonably considered Brett’s testimony. The Commissioner also argues
that the ALJ’s misinterpretation of one MRI scan does not warrant remand in light of
that other substantial evidence.
The Commissioner acknowledges that the ALJ “misunderstood” or
misinterpreted Brett’s 2014 lumbar spine MRI when the ALJ said, point blank – twice
-, “There was no indication of nerve root compression or central spinal stenosis. There
was only mild disc bulging and mild loss of disc height noted[.]” AR 37. Those MRI
results provided, among other things, that Brett had neural foraminal narrowing with
encroachment and with effacement and potential impingement at different spots of
10
his lumbar spine. Dr. Flacco summarized that MRI as follows: “Back pain – mri disc
desiccation multiple levels and disc bulges and effacement and impingement
2014.” AR 608. The Commissioner attempts to downplay the “misinterpretation” by
arguing that the 2014 MRI was mostly consistent with the previous 2009 MRI and
included findings unchanged from July 2013 to February 2014, the times that the State
Agency physicians reviewed the record.
However, the misinterpretation is
potentially not as innocuous as the Commissioner argues. Notably, the State Agency
physicians had neither the 2009 MRI results (Brett explains those results do not appear
in the record) nor the 2014 MRI results to consider whereas Brett’s treating physician
Dr. Flacco noted the 2014 MRI results (which explicitly made comparison to the 2009
MRI) in her own April 2014 and early 2015 progress notes. Such a fact is notable as
the ALJ later in his Decision rejected Dr. Flacco’s opinion as not consistent with the
medical evidence of record as a whole or her own progress notes and accepted the
State Agency physicians’ opinions as supported by the evidence of record.
The Court cannot ascertain whether the ALJ found consistency/inconsistency
between the different medical opinions and the evidence of record based, at least in
part, upon his misinterpretation of the 2014 MRI results. Indeed, he cited to other
medical and other evidence of record to bolster his findings, but the question remains
whether the ALJ viewed that evidence pertaining to Brett’s back impairment through
an incorrect lens. Thus, an additional question arises whether the ALJ impermissibly
played doctor in doing so. See, e.g., Akin v. Berryhill, 887 F.3d 314, 317 (7th Cir. 2018)
(explaining the ALJ impermissibly played doctor in his evaluation of the claimant’s
MRI results where he stated her MRI results were “consistent” with her impairments
and “then based his assessment of her [RFC] ‘after considering . . . the recent MRIs’”).
2
Brett next argues the ALJ failed to properly assess his hearing testimony
regarding the extent of his symptoms. He specifically argues that none of his activities
the ALJ discussed equated to his ability to perform the provided RFC on a regular
11
and continuing basis. Brett also takes issue with the ALJ’s determination to discredit
him based upon, in part, his supposed inconsistent statements. The Commissioner
counters that Brett has not shown the ALJ misunderstood his testimony, and it is
unclear why Brett would use a different standard when answering similar questions
at the same hearing.
As noted earlier, the Commissioner also argues the ALJ
reasonably considered Brett’s testimony.
Determinations of credibility made by the ALJ will not be overturned unless
the findings are patently wrong. Shideler v. Astrue, 688 F.3d 306, 310-11 (7th Cir. 2012).
SSR 96–7p 3 instructs that when “determining the credibility of the individual's
statements, the adjudicator must consider the entire case record,” and that a
credibility determination “must contain specific reasons for the finding on credibility,
supported by the evidence in the case record.” An ALJ must provide “enough detail
and clarity to permit meaningful review.” Briscoe ex rel. Taylor v. Barnhart, 425 F.3d
345, 351 (7th Cir. 2005). An ALJ should consider elements such as objective medical
evidence of the claimant's impairments, the daily activities, allegations of pain and
other aggravating factors, “functional limitations,” and treatment (including
medication). Scheck v. Barnhart, 357 F.3d 697, 703 (7th Cir. 2004); Rice v. Barnhart, 384
F.3d 363, 371 (7th Cir. 2004). As with the ALJ’s consideration of medical opinions, a
credibility finding “must be supported by the evidence and must be specific enough
to enable the claimant and a reviewing body to understand the reasoning.” Craft v.
Astrue, 539 F.3d 668, 678 (7th Cir. 2008).
In his Decision, the ALJ summarized Brett’s testimony as to his “somewhat
limited activities” and as to his attorney’s and the ALJ’s question regarding his lifting
capability. After identifying Brett’s testified-to daily activities, the ALJ stated, “These
activities are consistent with the performance of the restricted range of light work, as
SSR 96-7p was rescinded and superseded by SSR 16-3p, published on March 16, 2016. SSR 16-3p applies
to determinations and decisions made on or after March 28, 2016.
3
12
noted above, and are similar to work functions.” AR 41. With regard to Brett’s arm
lifting capability, the ALJ stated:
In assessing the claimant’s credibility, the undersigned notes that at the
hearing he first testified when questioned by his attorney that he could
only lift a total of 10 pounds with both arms and could only lift 7 pounds
with his left arm. He then testified when questioned by the undersigned,
that he could lift 10 to 15 pounds with his right arm alone. Not only is
this inconsistent, but, based on his testimony, he can lift at least 22
pounds with both arms together.
AR 41. The ALJ continued:
Based upon the above inconsistencies, the undersigned finds that the
claimant’s subjective statements regarding his abilities and limitations
are not credible and not supported by the record as a whole. Based on
this finding, the subjective statements of the claimant will be given little
weight.
AR 41.
Try as it might, the Court cannot read the ALJ’s statement regarding Brett’s
daily activities in any way other than that the ALJ improperly equated Brett’s daily
activities with the activities of full-time light work. In Bjornson v. Astrue, the Seventh
Circuit Court of Appeals explained:
The critical differences between activities of daily living and activities in
a full-time job are that a person has more flexibility in scheduling the
former than the latter, can get help from other persons (in this case, [the
claimant’s] husband and other family members), and is not held to a
minimum standard of performance, as she would be by an employer.
The failure to recognize these differences is a recurrent, and deplorable,
feature of opinions by administrative law judges in social security
disability cases.
671 F.3d 640, 647 (7th Cir. 2012); cf. Penrod on behalf of Penrod v. Berryhill, 900 F.3d 474,
478 (7th Cir. 2018) (“[T]he ALJ did not improperly equate [the claimant’s] daily
activities with the activities of full-time work”). The fact that Brett’s daily activities
were generally consistent with the ability to do sedentary work – an ability that, the
13
Commissioner argues, would make Brett not disabled – does not somehow render the
ALJ’s explicit consideration of those activities proper.
As for the inconsistency the ALJ found in Brett’s testimony regarding his arm
strength, such inconsistency is, at best, a mere scintilla of evidence and, at worst,
manufactured evidence in support of his credibility finding. The relevant questions
and answers are set forth in their entirety above. Brett was asked by his attorney
questions that were different than those the ALJ asked him. Thus, his answers were
different. The ALJ did provide specific reasons for his credibility finding as he was
required to do, but the first reason was legally improper and the second was not one
a reasonable mind could accept as alone adequate to support his credibility finding.
Indeed, the ALJ, in enabling the Court to trace the path of his reasoning in this regard,
clearly revealed where he committed error. See Scott v. Barnhart, 297 F.3d 589, 595 (7th
Cir. 2002) (requiring an ALJ to build an accurate and logical bridge from the evidence
to his conclusion so that the reviewing court may “assess the validity of the agency’s
ultimate findings and afford a claimant meaningful judicial review”).
The Commissioner urges the Court to read the ALJ’s Decision as a whole and
the Commissioner is certainly correct that the Court must do so. See Rice v. Barnhart,
384 F.3d 363, 370 n.5 (7th Cir. 2004) (“[I]t is proper to read the ALJ’s decision as a
whole . . . .”). However, the ALJ’s discrete errors in this case, as discussed above, taint
other aspects of the Decision such that, as a whole, the Court cannot say the legal
errors committed in this case were harmless or that the Decision remains supported
by substantial evidence where some of that evidence was improperly and/or
incorrectly considered. See McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011)
(explaining that administrative error may be harmless and thus a court ought not
remand a case to the ALJ where it is convinced that the ALJ would reach the same
result). This case must therefore be remanded for the ALJ to apply the proper legal
standards and to accurately recite the evidence of record upon which he relies.
14
V
For the foregoing reasons, the Plaintiff’s Motion for Summary Judgment
(Doc. 13) is GRANTED, the Defendant’s Motion for Summary Affirmance (Doc.
16) is DENIED, and this matter is REMANDED pursuant to Sentence Four of 42
U.S.C. § 405(g) for the ALJ to apply the proper legal standards and to accurately
recite the evidence of record upon which he relies.
The Clerk of Court is directed to enter judgment as follows: Judgment is
entered in favor of the Plaintiff, Brett B., and against the Defendant, Commissioner
of Social Security. This case is reversed and remanded for further proceedings
pursuant to 42 U.S.C. § 405(g), Sentence Four.
It is so ordered.
Entered on September 25, 2018.
s/Jonathan E. Hawley
U.S. MAGISTRATE JUDGE
15
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