Fieldhouse v. Astrue
Filing
31
MEMORANDUM Opinion and Order Signed by the Honorable Maria Valdez on 2/8/2012.Mailed notice(tg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JANINE L. FIELDHOUSE,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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No. 09 C 6358
Magistrate Judge
Maria Valdez
MEMORANDUM OPINION AND ORDER
This action was brought under 42 U.S.C. § 405(g) to review the final decision
of the Commissioner of Social Security denying Plaintiff Janine Lee Fieldhouse’s
claim for Disability Benefits. The parties have consented to the jurisdiction of the
United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons
that follow, Fieldhouse’s motion for summary judgment [Doc. No. 23] is granted in
part and denied in part. The Court finds that this matter should be remanded to the
Commissioner of Social Security for further proceedings.
BACKGROUND
I.
PROCEDURAL HISTORY
Plaintiff Janine Lee Fieldhouse (“Plaintiff,” “Claimant,” or “Fieldhouse”)
originally filed an application for a period of disability and disability insurance
benefits on November 7, 2005, alleging disability beginning June 17, 2005. (R. 54.)
Plaintiff’s claim was denied initially on March 30, 2006, and upon reconsideration
on May 24, 2006. (Id.) Plaintiff timely filed a written request for a hearing by an
Administrative Law Judge (“ALJ”) on July 25, 2006. (Id.) On October 24, 2008,
Plaintiff personally appeared and testified at the hearing and was represented by
counsel. (Id.) An impartial vocational expert (“VE”), Dennis W. Gustafson, also
appeared at the hearing. (Id.)
On November 12, 2008, the ALJ denied Plaintiff’s claim and found her “not
disabled” under the Social Security Act. (Id. at 62.) On January 16, 2009, Plaintiff
requested review of the ALJ’s decision. (Id. at 45.) In addition to the Request for
Review of Hearing Decision / Order form, Plaintiff sent two Magnetic Resonance
Imaging (“MRI”) exam reports dated November 28, 2008 to the Social Security
Administration Appeals Council (“Appeals Council”) for consideration. (Id. at 4450.)1 The Appeals Council notified Plaintiff that it had granted the request for
Plaintiff sent a letter from Dr. Elizabeth Ritz to the Appeals Council on February 9,
2009. (R. 24.)
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review on March 24, 2009.2 (Id. at 21.) On June 2, 2009, the Appeals Council issued
a decision, adopting the ALJ’s findings or conclusions regarding whether Plaintiff
was disabled. (Id.) The Appeals Council did not agree with the ALJ’s finding that
Plaintiff’s date last insured for disability benefits was June 30, 2008; instead, the
Appeals Council determined that the Plaintiff’s date last insured was September 30,
2008. (Id. at 21-22.) In its decision, the Appeals Council noted that “[n]o comments
or additional evidence have been received.” (Id. at 21.) On June 16, 2009, Plaintiff
requested that the matter be reopened due to the Appeals Council’s failure to
consider Plaintiff’s new evidence. On August 28, 2009, the Appeals Council denied
Plaintiff’s request to reopen and change its June 2, 2009 decision. (Id. at 7.) The
Appeals Council’s June 2, 2009 decision is the final decision of the Commissioner of
Social Security (“Commissioner”), and is reviewable by the District Court under 42
U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005). Plaintiff
filed the instant motion on June 9, 2010.
II.
FACTUAL BACKGROUND
A.
Fieldhouse’s History
Fieldhouse was born on July 2, 1960, and was forty-four years old on June 17,
2005, the date on which she claims her disability period began. (R. 125.) Though not
characterized as such, Plaintiff’s precipitating injury seems to be a twisted ankle
that she suffered on or around June 17, 2005 (Id. at 206) though some information
On March 26, 2009, the Plaintiff resubmitted the two November 28, 2008 MRI
reports and the letter from Dr. Ritz to the Appeals Council. (R. 14.)
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in the record suggests that she experienced back and leg pain before then. (See, e.g.,
Id. at 267.) Fieldhouse claims that the illnesses, injuries or conditions that limit her
ability to work include cellulitis in her right leg, a shifting disc in her back, and
sciatica. (Id. at 162.) She explains that her back “goes out on [her] and [she] can
barely walk.” (Id.) She also says that she has trouble walking and has problems
with her legs swelling up. (Id.) Plaintiff claims she stopped working because she
was in too much pain from her leg and back condition to return to work. (Id.) Before
her conditions made her leave her job, Plaintiff worked as a prep cook in a
restaurant. (Id. at 163.)
Fieldhouse has taken Furosemide to prevent water retention, potassium and
Klor-con to prevent leg cramps, (Id. at 166) and Lisinopril to treat hypertension. (Id.
at 211.) She was prescribed Vicodin for her sprained ankle. (Id. at 207.) She was
prescribed Levaquin, Unasyn, Vancomycin, and Gentamicin, in response to fever.
(Id. at 211.) She has used over-the-counter medication for pain. (Id. at 193) She
received a single cortisone injection in December of 2006. (Id. at 72-73.) She has
seen Dr. Elizabeth Ritz (“Dr. Ritz”) and Roger Miller (“Miller”), a chiropractor, for
treatment. (Id. at 192.) Surgery has not been recommended for her back pain. (Id.
at 58.)
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B.
Testimony and Medical Evidence
1.
Fieldhouse’s Testimony
In the hearing before the ALJ, Fieldhouse said that she could not work
because of her cellulitis, sciatica and a shifting disc in her lower back. (Id. at 74,
79.) She indicated that she has constant low back pain and constant right leg pain
or right leg numbness. (Id. at 86.) She explained that she cannot sit or stand for
long periods of time, that it is hard to bend over, that she has a hard time sleeping
at night, and that the maximum amount of weight that she could pick up at one
time is five pounds. (Id. at 75-76, 78.) She also explained that when her disc shifts,
she experiences a sharp pain and numbness in her leg that goes all the way to her
toes, (Id. at 79-80) and that she experiences increased back pain when she lifts her
arms. (Id. at 88.)
In terms of her daily activities, Fieldhouse testified that she usually gets up
at 7:30 a.m. to get her son off to school, and then tries to do some housework. (Id. at
82.) She explained that she could only do a little bit at a time: “I will sit for five to
ten to 15 minutes. I’ll do a little bit of something, and then I’ll go sit down and
relax, and then I can’t sit that long so I get up and walk around.” (Id.) Plaintiff said
that she fixes quick and easy meals and grocery shops for the family. (Id. at 84.) She
said that she could take care of most of her personal hygiene needs, but that she
sometimes needs help washing her hair, drying herself off, dressing herself and
getting off of the toilet. (Id. at 85.)
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2.
Medical Evidence Before the ALJ
a.
treating physicians
Beginning in September 2005 Fieldhouse received treatment from Dr.
Elizabeth Ritz (“Dr. Ritz”). (Id. at 178.) On September 2, 2005, Fieldhouse was
admitted to Illinois Valley Community Hospital with a high fever, and right lower
extremity edema and pain. (Id. at 211.) Dr. Ritz diagnosed Plaintiff with cellulitis
and abscess of the leg. (Id. at 209.) She also provided secondary diagnoses of
phlebitis and thrombophlebitis of superficial vessels of lower extremity, unspecified
congestive heart failure, essential hypertension, unspecified hyperlipidemia, tobacco
use disorder, morbid obesity, personal history of venous thrombosis and embolism,
and fever. (Id.) Dr. Ritz found that Plaintiff had 3+ pitting edema bilaterally, and
that her right lower extremity was erythematous to just below the knee. (Id. at
213.) A duplex and color-flow Doppler interrogation of the deep veins of the right
lower extremity was performed; it showed normal flow augmentation, respiratory
variation and compression from the proximal calf to the groin. (Id. at 241.) There
was no evidence of a deep vein thrombosis. (Id.)
On a follow-up visit in November 2005, Dr. Ritz said that Plaintiff’s cellulitis
had resolved and that there were some hyper-pigmentation changes on her right
lower extremity but no erythema. (Id. at 288.) Dr. Ritz suggested a sleep study due
to Plaintiff’s reports of daytime fatigue and poor sleep. (Id.) On December 9, 2005,
Dr. Ritz reported that the sleep study results were normal. (Id. at 286.) A March 1,
2006 progress note indicates that Plaintiff returned to Dr. Ritz and complained of
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leg swelling and “burning up” and a lump on her leg. (Id. at 285.) On March 13,
2006, Dr. Ritz indicated that Plaintiff’s leg pain, warmth and erythema had
resolved and that her cellulitis had resolved. (Id. at 284.) On July 24, 2006, Dr. Ritz
noted that Plaintiff was in the process of applying for disability. (Id. at 308.) She
reported that any strenuous activity bothered Plaintiff’s back, and said that she
would need MRI exam results to look for evidence of nerve impingement. (Id.) On
September 6, 2006, Dr. Ritz reported that Plaintiff continued to have terrible back
pain, especially after packing up her things and painting the house. (Id. at 310.)
On May 31, 2008, Plaintiff went to the emergency room at Utica Medical
Center and complained of cellulitis of her left lower leg. (Id. at 312.) She said that
she was mowing the lawn and may have been bitten. (Id.) Dr. Ritz found that
Plaintiff had erythema extending from the left ankle up the leg. (Id. at 313.) On
October 15, 2008, Plaintiff visited Dr. Ritz because of her back pain. (Id. at 314.) Dr.
Ritz found that she had normal posture, 5/5 normal muscle strength, a stiff gait,
and limited range of motion in the lower extremities. (Id. at 315.)
Dr. Ritz wrote two letters concerning Plaintiff’s condition and capacity for
work prior to the ALJ hearing. In her September 6, 2006 letter, Dr. Ritz explained
that Plaintiff takes Ibuprofen three to four times a day to cope with pain in her
lower back and right leg. (Id. at 309.) Dr. Ritz also said that Plaintiff’s inability to
work “results from constant pain in her lower back radiating down her right leg and
into her toes with activity. Her ability to sit is limited to 15 to 20 minutes, and her
ability to stand is limited to 10 to 15 minutes.” (Id.) Dr. Ritz also noted that
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Plaintiff has difficulty performing daily living activities due to her need to take
frequent rest breaks to cope with her pain. (Id.) In her October 15, 2008 letter, Dr.
Ritz said that Plaintiff’s condition was gradually worsening as evidenced by
Plaintiff’s report of intensified chronic pain. (Id. at 318.) Dr. Ritz explained that,
“[g]iven her difficulties in performing even simple tasks, Ms. Fieldhouse continues
to be unable to work.” (Id.)
Beginning on November 17, 2004, Fieldhouse received treatment from Roger
Miller, a chiropractor. (Id. at 270.) During Plaintiff’s consultation, Miller noted her
complaints. (Id. at 267.) On December 29, 2005, Miller diagnosed Plaintiff with
“possible lumbar disc herniation resulting in chronic sciatic radiculopathy.” (Id. at
266.) Miller recommended that Plaintiff “have an MRI to rule out her sciatica / disc
possibilities.” (Id.) Miller opined that “it will be very difficult for [Fieldhouse] to do
any occupation w/ her spinal disc problems w/o acute exacerbations.” (Id.) In terms
of his objective findings, Miller wrote, “see notes.”3 (Id.) On May 17, 2006, Miller
diagnosed Plaintiff with “possible lumbar disc herniation w/ resultant sciatic
radiculopathy and severe leg and back spasms.” (Id. at 301.) Miller’s objective
findings included “subluxation L5-S1[,] sacroiliac dysfxn.+ Minor’s sign, rigid @ L
bilaterally.” (Id.) Miller said that “Mrs. Fieldhouse is very restricted in her
employment future. Lifting/bending will cause more damage. Sitting will also cause
subjective sciatic exacerbations. A neurological exam is recommended.” (Id.)
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It is unclear to what notes Miller is referring.
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b.
examining, non-treating physicians
On March 2, 2006, Plaintiff underwent a consultative internal medicine
examination, performed by Dr. Phillip Budzenski (“Dr. Budzenski”). (Id. at 276.) Dr.
Budzenski found that Plaintiff was able to bend over and attend to footwear
without difficulty, and was able to get on and off the examination table without
difficulty. (Id. at 277.) He reported that she ambulated with a mildly wide-based
gait appropriate for body habitus, that her gait was not unsteady, lurching or
unpredictable, and that she appeared comfortable in the seated and supine
positions. (Id.) Dr. Budzenski’s examination of Plaintiff’s neck revealed no
thromegaly, thyroid bruits, lymphadenopathy, or other palpable masses. (Id.) In
terms of Plaintiff’s chest, the doctor found that there was symmetrical excursion, no
increased A/P diameter, and no accessory muscle use; however, he did find that the
chest examination was notable for moderate mid-thoracic kyphosis. (Id.)
Dr. Budzenski noted that there were no venous stasis changes such as
pigmentation, ulceration, or brawny edema. (Id. at 278.) He did find that Plaintiff
exhibited a 3-plus pitting edema bilaterally, and that there was a mild diffuse
redness associated with the skin in the leg below the knee on the right; there was
no evidence for infection, and there was no excess heat generated from the site. (Id.)
Dr. Budzenski also noted that Plaintiff was not wearing her recommended surgical
stockings. (Id.)
Dr. Budzenski reported that examination of the cervical spine revealed no
tenderness in the spinous processes or paravertebral muscle spasm. (Id.) He found
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that flexion of the cervical spine was limited to forty degrees, that extension of the
cervical spine was limited to forty-five degrees, that lateral bend was preserved to
forty-five degrees bilaterally, and that rotation was limited to seventy degrees
bilaterally. (Id.) His examination of the dorsolumbar spine showed no apparent
kyphosis or scoliosis; there was also no paravertebral muscle spasm or tenderness
to palpation of the spinous processes. (Id.) Examination of the shoulders, elbows
and wrists revealed no crepitus, tenderness, erythema, warmth, swelling or
nodules. (Id.) Forward flexion of the arms and abduction of the extended arms were
limited to 135 degrees bilaterally, and adduction was limited to twenty degrees
bilaterally (Id.)
Dr. Budzenski’s examination of Plaintiff’s hips revealed no tenderness or
atrophy. (Id. at 279.) Adduction was limited to ten degrees bilaterally, and internal
rotation was limited to thirty degrees. (Id.) Foot and ankle examination revealed
moderate to marked swelling bilaterally. (Id.) Dorsiflexion was limited to fifteen
degrees bilaterally, and plantar flexion was limited to thirty degrees bilaterally.
(Id.) Dr. Budzenski found Plaintiff’s reflexes to be brisk and symmetrical, and her
motor strength to be normal. (Id.)
Dr. Budzenski concluded that Plaintiff was morbidly obese, had a history of
cellulitis in the right lower extremity, had lower extremity edema (and was noncompliant with surgical stocking recommendations for both the cellulitis and the
edema), had thoracis kyphosis, and abused tobacco (and was non-compliant with
cessation recommendations). (Id. at 280.) In terms of her back, he determined that
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“there was no deficit in range of motion [of] her lumbar spine but claimant does
exhibit at least a moderate mid thoracic kyphosis. She has symmetric reflexes. She
has no sensory loss. There is no apparent muscle atrophy or motor loss.” (Id.)
Regarding her workplace, he suggested that Plaintiff avoid extreme heat, and would
not have her climb ladders, ropes, or scaffolding. (Id.) He also said that Plaintiff
should only use stairs occasionally, advised that Plaintiff may need her workplace
adjusted for body habitus, and limited her lifting to fifty pounds at any one time.
(Id.)
c.
non-examining physicians
Following Dr. Budzenski’s examination of Plaintiff, Dr. Sandra Bilinsky (“Dr.
Bilinsky”) completed a Physical Residual Functional Capacity (“RFC”) Assessment.
(Id. at 292-99.) Based on Dr. Budzenski’s findings, Dr. Bilinsky determined that
Plaintiff is limited to light work with postural and environmental limitations. (Id.
at 299.) She reported that Plaintiff may occasionally lift or carry twenty pounds,
frequently lift or carry ten pounds, stand or walk about six hours in an eight-hour
workday, sit for a total of about six hours in an eight-hour workday. (Id. at 293.)
She determined that Plaintiff may frequently climb ramps and stairs, balance,
stoop, kneel, crouch, and crawl, but may never climb ladders ropes or scaffolds. (Id.
at 294.) She also found that Plaintiff should avoid concentrated exposure to extreme
heat. (Id. at 296.)
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3.
Plaintiff’s New Evidence
Ten days after the ALJ Hearing, on November 28, 2008, Plaintiff had a
thoracic spine MRI and lumbar spine MRI done. (Id. at 47-50.) The results of the
thoracic spine MRI showed that “[t]here is a slight leftward rotatory scoliotic
curvature at the upper thoracic spine centered at approximately T3-4. Ossesous
signal is normal throughout. Disc Dessication is present at each level in the thoracic
spine. There are disc bulges at T4-T5 through T11-12 most significantly at T5-6 and
T6-7.” (Id. at 47.) The results also showed a slight right paramedian disc bulge at
T4-T5, a central disc bulge at T5-6, a left paramedian focal disc herniation which
contacts the cord and flattens the anterior left aspect of the cord at T6-7, a minimal
central disc bulge at T7-8, a right paramedian flattening of the ventral thecal sac at
T8-9, and a minimal central/left paramedian disc prominence at T9-10. (Id.)
The results of the lumbar spine MRI showed “[d]isc dessication L4-5. The
remaining lumbar intervertebral discs have normal hydration. Mild loss of
intervertebral disc space height at L4-5. Disc extrusion at L4-5. Developmentally
the AP canal dimension is within limits. Conus terminates at T12-L1. Osseous
signal is normal throughout.” (Id. at 49.) The results also showed a minimal disc
bulge with a preserved concavity to the ventral thecal sac at L2-3, and a “broadbased disc bulge with an extrusion of nucleus in a right paramedian location
extending inferiorly towards the upper half of the L5 vertebral body,”[which]
narrows the right lateral recess and possible brushes the right L4 nerve root within
the sheath or as it is queued to the neural foramen.” (Id.)
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On January 16, 2009, Dr. Ritz wrote a letter on Plaintiff’s behalf regarding
the November 28, 2008 MRI results. She said that “the results of this MRI revealed
multiple herniated and bulging discs of the thoracic and lumbar spine. Such
findings are consistent with [Plaintiff’s] chronic pain complaints.” (Id. at 25.)
C.
ALJ Decision
In his findings, the ALJ stated that Fieldhouse last met the insured status
requirements of the Social Security Act on June 30, 2008, and further found that
Plaintiff did not engage in substantial gainful activity during the period from her
alleged onset date of June 17, 2005 through her date last insured. (Id. at 56.) The
ALJ determined that Plaintiff suffered from the following severe impairments:
morbid obesity and degenerative disc disease. (Id.) He found that Plaintiff did not
have an impairment or combination of impairments that met or medically equaled
on of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.)
The ALJ determined that Fieldhouse had the residual functional capacity “to
perform sedentary work . . . but is limited to work activity that allows for a sit/stand
option with no climbing of ladders, ropes or scaffolds; and only occasional balancing,
stooping, crouching, crawling, or kneeling. The claimant is limited to work activity
involving no concentrated exposure to extreme heat.” (Id. at 57.) After considering
the evidence, the ALJ found that “the claimant’s medically determinable
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impairments could reasonably be expected to cause the alleged symptoms; however,
the claimant’s statements concerning the intensity, persistence, and limiting effects
of these symptoms are not credible to the extent that they are inconsistent with the
above residual functional capacity assessment.” (Id. at 58.)
The ALJ recited Plaintiff’s relevant medical history, her answers to the
Activities of Daily Living Questionnaire, and portions of her testimony. (Id. at 5860.) He found that Plaintiff lacked credibility as her daily activities, use of
medication, treatment and non-compliance with medical advice are inconsistent
with her subjective complaints. (Id.) He accorded little weight to Miller’s opinion
because it was unaccompanied by a functional assessment or references to any
problems with functionality that could support the conclusion that Plaintiff “could
not do any occupation due to disc problems.” (Id. at 59.) The ALJ also accorded little
weight to Dr. Ritz’s opinion because the doctor’s own reports “fail to reveal the type
of significant clinical and laboratory abnormalities one would expect if the claimant
were in fact disabled.” (Id. at 60.) The ALJ noted that Dr. Ritz’s opinion was
without substantial support from other evidence in the record, and that the doctor
relied almost exclusively upon Plaintiff’s subjective complaints. (Id.) Specifically,
the ALJ pointed out that there were no reports from any MRI exams that could
support the doctor’s conclusions. (Id.) The ALJ also determined that Dr. Ritz’s
opinion deserved less weight because Dr. Ritz had not recommended surgery or
treatment at a pain clinic, which the ALJ found to be inconsistent with the totally
disabling limitations that Dr. Ritz reported. (Id.)
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The ALJ found that Plaintiff was unable to perform any past relevant work.
(Id. at 61.) He determined that Plaintiff is a younger individual age 45-49, has a
high school education, and is able to communicate in English. (Id.) Based on
Plaintiff’s RFC and the vocational expert’s testimony, the ALJ found that there
were jobs that existed in significant numbers in the national economy that Plaintiff
could have performed, including production inspection (350 jobs in Illinois), hand
assembler (1,200 jobs in Illinois), and material handler (2,000 jobs in Illinois). (Id.
at 62.) The ALJ determined that Plaintiff was not under a disability ay any time
from June 17,2005 through June 30, 2008. (Id.)
D.
The Appeals Council Decision
In its June 2, 2009 decision, the Appeals Council stated that it notified
Plaintiff that it would consider any comments or new and material evidence that
Plaintiff or her representative submitted. (Id. at 21.) The Appeals Council reported
that “[n]o comments or additional evidence have been received.” (Id.) The Appeals
Council adopted the ALJ’s statements regarding the pertinent provisions of the
Social Security Act, Social Security Administration Regulations, Social Security
Rulings, and Acquiescence Rulings, the issues in the case, and the evidentiary facts.
(Id.) The Appeals Council also adopted the ALJ’s findings or conclusions regarding
whether Plaintiff was disabled. (Id.)
The Appeals Council agrees with the ALJ’s findings under
steps 1, 2, 3, 4, and 5 of the sequential evaluation; namely
that the claimant has not engaged in substantial gainful
activity since June 17, 2005, that the claimant has severe
impairments which do not meet or equal in severity an
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iompairment in the Listing of Impairments, that she is
not capable of performing past relevant work and that
there are a significant number of jobs the claimant is
capable of performing.
(Id.) The Appeals Council did not agree with the ALJ’s finding that Plaintiff’s last
date insured was June 30, 2008. (Id. at 21-22.) The Appeals Council determined
that Plaintiff’s last date insured is September 30, 2008. (Id. at 22.) The Appeals
Council found that Plaintiff was “not entitled to or eligible for a period of disability
or disability insurance benefits under sections 216(I) and 223, respectively, of the
Social Security Act.” (Id. at 23.)
After the Appeals Council issued its decision, it received a request to reopen
and change the decision. (Id. at 7.) The Appeals Council found no reason under the
rules to reopen and change the decision. (Id.) The Appeals Council’s June 2, 2009
decision became the final decision of the Commissioner. (Id.)
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DISCUSSION
I.
ALJ LEGAL STANDARD
Under the Social Security Act, a person is disabled if she has an “inability to
engage in any substantial gainful activity by reason of a medically determinable
physical or mental impairment 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 twelve
months.” 42. U.S.C. § 423(d)(1)(a). In order to determine whether a claimant is
disabled, the ALJ considers the following five questions in order: (1) Is the claimant
presently unemployed? (2) Does the claimant have a severe impairment? (3) Does
the impairment meet or medically equal one of a list of specific impairments
enumerated in the regulations? (4) Is the claimant unable to perform his former
occupation? and (5) Is the claimant unable to perform any other work? 20 C.F.R. §
416.920(a)(4) (2008).
An affirmative answer at either step 3 or step 5 leads to a finding that the
claimant is disabled. Young v. Sec’y of Health & Human Servs., 957 F.2d 386, 389
(7th Cir. 1992). A negative answer at any step, other than at step 3, precludes a
finding of disability. Id. The claimant bears the burden of proof at steps 1-4. Id.
Once the claimant shows an inability to perform past work, the burden then shifts
to the Commissioner to show the ability to engage in other work existing in
significant numbers in the national economy. Id.
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II.
JUDICIAL REVIEW
Section 405(g) provides in relevant part that “[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). Judicial review of the ALJ’s decision is
limited to determining whether the ALJ’s findings are support by substantial
evidence or based upon legal error. Clifford v. Apfel, 227 F.3d. 863, 869 (7th Cir.
2000); Stevenson v. Chater, 105 F.3d 1151, 1153 (7th Cir. 1997). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Skinner v.
Astrue, 478 F.3d 836, 841 (7th Cir. 2007). This Court may not substitute its
judgment for that of the Commissioner by reevaluating facts, reweighing evidence,
resolving conflicts in evidence, or deciding questions of credibility. Skinner, 478
F.3d at 841.
The ALJ is not required to address “every piece of evidence or testimony in
the record, [but] the ALJ’s analysis must provide some glimpse into the reasoning
behind her decision to deny benefits.” Zurawski v. Halter, 245 F.3d 881, 889 (7th
Cir. 2001). In cases where the ALJ denies benefits to a claimant, “he must build an
accurate and logical bridge from the evidence to his conclusion.” Clifford, 227 F.3d
at 872. The ALJ “must at least minimally articulate the analysis for the evidence
with enough detail and clarity to permit meaningful appellate review.” Boiles v.
Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Murphy v. Astrue, 498 F.3d 630, 634
(7th Cir. 2007) (“An ALJ has a duty to fully develop the record before drawing any
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conclusions, and must adequately articulate his analysis so that we can follow his
reasoning.”).
Where conflicting evidence would allow reasonable minds to differ, the
responsibility for determining whether a claimant is disabled falls upon the
Commissioner, not the court. Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990).
However, an ALJ may not “select and discuss only that evidence that favors his
ultimate conclusion,” but must instead consider all relevant evidence. Herron v.
Shalala, 19 F.3d 329, 333 (7th Cir. 1994).
III.
ANALYSIS
Plaintiff argues for remand based on the existence of new medical evidence
not previously considered by the ALJ or the Appeals Council. Additionally, Plaintiff
argues that remand is necessary for several other reasons: (1) the ALJ failed to
consider some of Plaintiff’s impairments; (2) the ALJ’s credibility determination
was flawed; (3) the ALJ improperly weighed medical opinions and evidence.
A.
New Medical Evidence
Sentence six of 42 U.S.C. § 405(g) “permits the Court to remand a case to the
Commissioner ‘upon a showing that there is new evidence which is material and
that there is good cause for the failure to incorporate such evidence into the record
in a prior proceeding.’” Bush v. Astrue, 571 F. Supp. 2d 866, 874 (N.D. Ill. 2008)
(quoting 42 U.S.C. § 405(g)).
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1.
New
Evidence is considered “new” for purposes of sentence six if it was “not in
existence or available to the plaintiff at the time of the administrative proceeding.”
Schmidt v. Barnhart, 395 F.3d 737, 741-42 (7th Cir. 2005). Here, Plaintiff’s MRI
results and Dr. Ritz’s letter were not in existence at the time of the ALJ hearing or
at any point before the ALJ issued his decision on November 12, 2008. Plaintiff’s
MRIs were performed on November 28, 2008, and Dr. Ritz’s letter was not written
until January 16, 2009. Accordingly, the Court finds that the medical evidence
satisfies the definition of “new.”
2.
Material
Evidence is considered “material” for purposes of sentence six if there is a
“reasonable probability that the ALJ would have reached a different conclusion had
the evidence been considered.” Schmidt, 395 F.3d at 742. Further, the evidence
must relate to the claimant’s condition “during the relevant time period
encompassed by the disability application under review. Id.
Defendant argues that since the MRI exams were performed almost two
months after September 30, 2008, the test results do not purport to describe
Plaintiff’s condition prior to that date. Defendant also explains that Dr. Ritz’s letter
does not relate her findings back to the relevant time period, and argues that
November 28, 2008 MRI exams do not and cannot support Dr. Ritz’s opinions of
September 6, 2006 and October 15, 2008. Defendant is right that medical records
that “speak only to the applicant’s current condition, not to his condition at the time
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his application was under consideration by the Social Security Administration” are
not considered material. Id. Here, however, the very short amount of time elapsed
between Plaintiff’s last date insured and the MRI exams, the nature of the findings,
and the content of Dr. Ritz’s letter all suggest that the evidence, while postdating
the ALJ’s decision, “speaks to the patient’s condition at or before the time of the
administrative hearing.” Getch v. Astrue, 539 F.3d 473, 484 (7th Cir. 2008). Clearly,
the disc dessication present at each level in the thoracic spine and L4-5, slight
leftward rotatory scoliotic curvature at the upper thoracic spine, disc bulges at T-45 through T11-12, mild loss of intervertebral disc space height at L4-5, disc
extrusion at L4-5, and other findings did not all occur in the time between
September 20, 2008 and November 28, 2008. See Bush, 571 F. Supp. 2d at 875
(holding that tests completed within three months of the ALJ’s decision that
documented impairments of which the plaintiff had complained for years were
material). Additionally, Dr. Ritz’s letter, most reasonably interpreted, indicates that
the results of the MRI exams were consistent with the chronic pain complaints
Plaintiff expressed to Dr. Ritz prior to September 20, 2008. (R. 25.)
In his decision, the ALJ noted that Dr. Ritz’s opinion was “without
substantial support from the other evidence of record” and that there was “no report
from any MRI that could support Dr. Ritz’s conclusions.” (Id. at 60.) There is a
reasonable probability that the ALJ would have reached a different conclusion had
the MRI exams and Dr. Ritz’s letter been considered. “The new medical evidence
fills certain gaps in the record that concerned the ALJ, and provides documentation
21
of specific impairments.” Bush, 571 F. Supp. 2d at 875. Therefore, the Court finds
this new evidence material.
3.
Good Cause
The final element to be satisfied for remand under sentence six of section
405(g) requires that the Plaintiff show good cause for her failure to submit the
medical records prior to the ALJ’s decision. Id. at 876. Plaintiff claims that she
could not afford MRI exams and that her large size dissuaded her as well.
Defendant maintains that these explanations are insufficient. Defendant explains
that neither Plaintiff’s poverty nor her obesity excuse her failure as there is “no
indication that Plaintiff was not as large at the time of the MRIs on November 28,
2008” and “no explanation how Plaintiff was able to afford MRIs on November 28,
2008.” (Def.’s Resp. P. 12.) Admittedly, Plaintiff does a questionable job of
developing her argument; nevertheless, the record does support her claim that she
could not afford the exams. (R. 310.) That she was able to pay for the exams later
does not necessarily mean that her excuse is deficient. In Stubbs v. Apfel, No. 97 C
7069, 1998 WL 547107 (N.D. Ill. Aug. 20, 1998), the evidence did not exist until
after the ALJ issued his opinion due to the claimant’s inability to afford the tests
earlier. Thus, the court held, there was clearly good cause for the claimant’s failure
to submit the evidence to the ALJ. Id. at *11.
The good cause requirement “is indicative of congressional intent to prevent
bad faith manipulation of the administrative process.” Id. (citing Creighton v.
Sullivan, 798 F. Supp. 1359, 1363 (N.D. Ind. 1992)). The record and the facts before
22
this Court do not provide any indication that Plaintiff withheld the evidence in
question “in an attempt to sandbag the Defendant.” Id. (citing Sears v. Bowen, 840
F.2d 394, 399-400 (7th Cir. 1988)). In fact, the record indicates the opposite. On
January 16, 2009, Plaintiff submitted the MRI exam results to the Appeals Council
along with her Request for Review of Hearing Decision.4 (R. at 44-50.)
However, in its decision the Appeals Council stated that “[n]o comments or
additional evidence have been received.” (Id. at 21.) Had the Appeals Council
considered the new evidence when it reviewed the ALJ’s decision,5 a remand under
sentence six of section 405(g) would not be proper. Lloyd v. Sec. of Health & Human
Serv’s, 876 F. Supp. 996, 1011 (N.D. Ill. 1995). Plaintiff submitted the materials in
the course of the administrative proceedings, but for whatever reason, the Appeals
Council failed to acknowledge that new evidence had been submitted. Clearly, there
has been no bad faith manipulation of the administrative process. The Court finds
that Plaintiff has established that there was good cause for her failure to submit the
new evidence before the ALJ issued his decision.
As Plaintiff has satisfied the criteria for a remand under sentence six of
section 405(g), the Court will remand the case for consideration of Plaintiff’s new
medical evidence. For the sake of completeness, the Court finds it prudent to
The Plaintiff also submitted a letter from Dr. Ritz on February 9, 2009, (R. 24) and
re-submitted all of the new evidence on March 26, 2009. (R. 14.)
4
The regulations “require the Appeals Council to review new evidence if the
evidence is ‘material’ and ‘relates to the period on or before the date of the administrative
law judge hearing decision.’” Rice v. Apfel, 8 F. Supp. 2d 769, 775 (N.D. Ill. 1998) (quoting
20 C.F.R. § 416.1470(b)).
5
23
consider Plaintiff’s remaining arguments for remand pursuant to sentence four of
Section 405(g). See Bush, 571 F. Supp. 2d at 877.
B.
Impairments Unconsidered
When determining a disability claimant’s RFC, “the ALJ must consider all
medically determinable impairments, physical and mental, even those that are not
considered ‘severe.’” Craft v. Astrue, 539 F.3d 668, 677 (7th Cir. 2008) (citing 20
C.F.R. § 404.1545(a)(2), (b), (c)). The ALJ is not required to address “every piece of
evidence or testimony in the record, [but] the ALJ’s analysis must provide some
glimpse into the reasoning behind [the] decision to deny benefits.” Zurawski v.
Halter, 245 F.3d 881, 888 (7th Cir. 2001).
Plaintiff claims that the ALJ erred in omitting her leg impairments and in
not linking her obesity to her other impairments. Plaintiff is mistaken. The ALJ
considered Plaintiff’s cellulitis and abscesses explicitly. (R. 59-60.) While the record
reflects that Plaintiff was diagnosed secondarily with phlebitis and
thrombophylebitis of superficial vessels of lower extremity on or around September
9, 2005, (Id. at 209) the ALJ noted that a subsequent Doppler scan showed no
evidence of deep vein thrombosis. (Id. at 289.) The ALJ also considered Plaintiff’s
obesity in combination with her other impairments and determined that Plaintiff
was capable of performing sedentary work with a sit/stand option, only occasional
balancing, stooping, crouching, crawling, or kneeling, no exposure to extreme heat,
and no climbing of ladders, ropes, or scaffolds. (Id. at 57, 60.)
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C.
Credibility
An ALJ’s credibility determination is granted substantial deference by a
reviewing court unless it is “patently wrong” and not supported by the record. See
Schmidt v. Astrue, 496 F.3d 833, 843 (7th Cir. 2007); Powers v. Apfel, 207 F.3d 431,
435 (7th Cir. 2000); see also Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir.
2006) (quoting Sims v. Barnhart, 442 F.3d 536, 538 (7th Cir. 2006)) (“‘Only if the
trier of fact grounds his credibility finding in an observation or argument that is
unreasonable or unsupported . . . can the finding be reversed.’”). However, an ALJ
must give specific reasons for discrediting a claimant’s testimony, and “[t]hose
reasons must be supported by record evidence and must be ‘sufficiently specific to
make clear to the individual and to any subsequent reviewers the weight the
adjudicator gave to the individual’s statements and the reasons for that weight.’”
Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539-40 (7th Cir. 2003) (quoting
Zurawski, 245 F.3d at 887-88). When assessing the credibility of an individual’s
statements about pain or other symptoms and their functional effects, an ALJ must
consider all of the evidence in the case record. See SSR 96-7p.6
Plaintiff argues that in assessing her credibility, the ALJ relied solely on the
ADL Questionnaire dated December 1, 2005 and neglected the rest of the case
record. However, in addition to citing the Questionnaire, the ALJ also relied upon
Interpretive rules, such as Social Security Regulations (“SSR”), do not have force of
law but are binding on all components of the Agency. 20 C.F.R. § 402.35(b)(1); accord Lauer
v. Apfel, 169 F.3d 489, 492 (7th Cir. 1999).
6
25
the representations that Plaintiff made about her daily activities during the
hearing. Specifically, the ALJ noted that, “[d]uring the hearing, the claimant
testified she gets her son ready for and off to school every day. She goes grocery
shopping without any particular assistance. She is able to drive, transport her child,
and do housework.” (R. 58.) Additionally, the ALJ properly considered Plaintiff’s use
of medication and course of treatment. He said that the “claimant’s use of
medications does not suggest the presence of an impairment which is more limiting
than found in this decision. The claimant testified she takes over-the-counter
medication for pain.” (Id.) He explained that “[a]lthough the claimant has received
treatment for the allegedly disabling impairments, that treatment has been
essentially routine and/or conservative in nature. The claimant has not been
recommended for surgery for her back pain.” (Id.) The ALJ also found that there
was evidence that Plaintiff had not been compliant in following medical advice,
suggesting “that the symptoms may not have been as limiting as the claimant has
alleged.” (Id.) In light of the foregoing, the ALJ properly assessed Plaintiff’s
credibility.
D.
Consideration of Medical Evidence and Opinions
On issues that are not reserved to the Commissioner, a treating doctor’s
opinion “receives controlling weight if it is ‘well-supported’ and ‘not inconsistent
with the other substantial evidence’ in the record.” Scott v. Astrue, 647 F.3d 734,
739 (7th Cir. 2011) (quoting 20 C.F.R. § 404.1527(d)(2)). “An ALJ must offer ‘good
reasons’ for discounting the opinion of a treating physician.” Id. (quoting Martinez
26
v. Astrue, 630 F.3d 693, 698 (7th Cir. 2011))..
Plaintiff claims that the ALJ erred in not accepting the limitations of Dr. Ritz
and Dr. Miller. Plaintiff’s argument is not compelling. First, Roger Miller is a
chiropractor and is therefore considered an “other source,” as opposed to an
“acceptable medical source,” pursuant to 20 C.F.R. § 404.1513(d)(1). The ALJ
explained that Miller’s opinion was unaccompanied by a functional assessment or
references to any problems with functionality that could support Miller’s conclusion
that it would be difficult for Plaintiff to perform any work due to disc problems. (R.
59.) The ALJ was justified in giving the Chiropractor’s opinion little weight. Bloom
v. Astrue, 714 F. Supp. 2d 938, 953 (N.D. Iowa 2010).
Second, the ALJ provided “good reasons” for discounting the opinion of Dr.
Ritz. Scott, 647 F.3d at 739. The ALJ explained that the doctor’s own reports “fail to
reveal the type of significant clinical and laboratory abnormalities one would expect
of the claimant were in fact disabled.” (R. 60.) He also noted that Dr. Ritz seemed to
rely heavily on Fieldhouse’s subjective complaints and uncritically accepted most, if
not all, of what Plaintiff reported. (Id.) Furthermore, the ALJ found the severity of
the doctor’s findings to be inconsistent with the fact that Dr. Ritz had not
recommended surgery or treatment at a pain clinic. (Id.) The ALJ also pointed out
that there was no MRI exam results that supported Dr. Ritz’s conclusions.7 (Id.) The
ALJ was not required to accept Dr. Ritz’s opinion because it was not well supported.
That there may be such results now does not undermine the ALJ’s initial
determination.
7
27
E.
Miscellaneous Complaints
In addition to what seem to be Plaintiff’s primary concerns with the ALJ’s
decision, she also makes a variety of additional arguments that allegedly require
remand. All of Plaintiff’s additional arguments are unpersuasive.
First, Plaintiff claims that the ALJ’s finding that Plaintiff was last insured as
of June 30, 2008 indicates that the ALJ was inattentive to the details of the case.
The Appeals Council found that the claimant’s date last insured was September 30,
2008. (Id. at 22.) The ALJ made a mistake.8 The Appeals Council rectified it. If the
ALJ was otherwise inattentive and made other mistakes, remand may be necessary
based on them; however, remand based on the assumption that the existence of one
mistake indicates others is unreasonable.
Second, Plaintiff claims that, absent any evidence, the ALJ found that
Plaintiff worked after her alleged onset date of June 17, 2005. Plaintiff complains
that such a finding needlessly questioned her credibility. Defendant admits that the
basis for the ALJ’s conclusion is unclear, but explains that the finding was
inconsequential as the ALJ clearly found that any work activity performed after the
alleged onset date did not constitute substantial gainful activity. As such, the ALJ’s
finding did not deny Plaintiff’s claim at step one of the sequential evaluation. Had
the ALJ relied upon the mysterious work activity in order to call Plaintiff’s
According to Defendant, the ALJ apparently relied on a query performed about ten
days prior to the hearing that showed that Plaintiff last met the insured requirements in
June 2008.
8
28
credibility into question or determine Plaintiff’s capabilities or functional
limitations, remand might be necessary. Here, the ALJ did no such thing. Even if
the finding was the result of another mistake, it was harmless.
Third, Plaintiff claims that the ALJ’s omission of the Dr. Budzenski’s
findings that Plaintiff’s chest has symmetrical excursion, that her foot and ankle
examination was notable for moderate to marked swelling bilaterally, and that
Plaintiff might need her workplace adjusted for body habitus requires remand.
Plaintiff ignores that the ALJ did consider Plaintiff’s marked swelling. (R. 60.)
Plaintiff also ignores that the ALJ’s RFC determination did factor in workplace
adjustments necessary for Plaintiff’s size and other limitations. (Id.) And while
Plaintiff claims that symmetrical excursion of the chest is a departure or deviation
according to MOSBY’S MEDICAL, NURSING & ALLIED DICTIONARY, this actually does
not seem to be the case. See Sites v. Commissioner of Social Security, No. 2:09cv26,
2010 WL 3463863, at *9 (N.D. W. Va. Aug. 4, 2010) (treating symmetrical excursion
of the chest as normal); Wheeler v. Astrue, No. 5:08cv164, 2009 WL 4666453, at *10
(N.D. W. Va. Dec. 7, 2009) (same). Furthermore, despite these findings, Dr.
Budzenski determined that Plaintiff could perform a wider range of work than that
ultimately found by the ALJ.
Fourth, Plaintiff argues that the ALJ misconstrued Plaintiff’s testimony by
stating that the RFC of sedentary work with a sit/stand option was–to some
extent–based on the claimant’s own testimony that she could rotate between sitting
and standing all day long. (R. 62.) During the hearing, Plaintiff explained that when
29
she tries to do housework, she can only “do a little bit at a time. I will sit for five to
ten to 15 minutes. I’ll do a little bit of something, and then I’ll go sit down and
relax, and then I can’t sit that long so I get up and walk around.” (Id. at 82.) The
ALJ then asked, “[s]o you spend most of your time during the day rotating between
sitting and standing?” (Id. at 83.) Plaintiff answered, “yes.” (Id.) The ALJ’s
interpretation was not unreasonable.
The findings of the Commissioner are supported by substantial evidence; as
such, the Court finds that remand pursuant to sentence four of 42 U.S.C. § 405(g) is
inappropriate. However, the Court concludes that the matter must be remanded to
the Commissioner pursuant to sentence six of 42 U.S.C. § 405(g) for a thorough
consideration of the entire record in light of the new medical evidence. The Court
expresses no opinion about the decision to be made on remand but encourages the
Commissioner to use all necessary efforts to build a logical bridge between the
evidence in the record and his ultimate conclusions, whatever those conclusions
may be. See, e.g., Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009) (“On remand,
the ALJ should consider all of the evidence in the record, and, if necessary, give the
parties the opportunity to expand the record so that he may build a ‘logical bridge’
between the evidence and his conclusions.”); see Smith v. Apfel, 231 F.3d 433, 437
(7th Cir. 2000); Luna v. Shalala, 22 F.3d 687, 693 (7th Cir. 1994). The
Commissioner should not assume that any other errors not discussed in this order
have been adjudicated in his favor. On remand, the Commissioner therefore must
carefully articulate his findings as to every step.
30
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment [Doc. No.
23] is granted in part and denied in part. The Court finds that this matter should be
remanded to the Commissioner so that new evidence may be considered. for further
proceedings consistent with this opinion.
SO ORDERED.
ENTERED:
DATE: February 8, 2012
___________________________
HON. MARIA VALDEZ
United States Magistrate Judge
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