Murphy v. Astrue
Filing
26
MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 6/11/2013.Mailed notice.(jlj)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PAUL MURPHY,
Plaintiff,
vs.
CAROLYN W. COLVIN, Commissioner of Social
Security,
Defendant.
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10 C 607
Judge Feinerman
MEMORANDUM OPINION AND ORDER
Paul Murphy filed a claim for disability insurance benefits (“DIB”) with the Social
Security Administration, alleging that he had become disabled due to a heart attack. The
Commissioner denied the claim and then denied Murphy’s request for reconsideration. Murphy
sought and received a hearing before an administrative law judge (“ALJ”) pursuant to 20 C.F.R.
§ 404.914. The ALJ denied the claim, and the Social Security Appeals Council denied Murphy’s
request for review of the ALJ’s decision, making the ALJ’s decision the final decision of the
Commissioner. See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005). Murphy timely
filed this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Commissioner’s
final decision. Doc. 1. Before the court are the parties’ cross-motions for summary judgment.
Docs. 12, 21-1. For the following reasons, Murphy’s motion is granted and the Commissioner’s
motion is denied, and the case is remanded to the Commissioner for further proceedings.
Background
The following facts are taken from the administrative record.
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A.
Factual Background
Murphy was born on February 26, 1957, has a high school education, and speaks English.
He worked as a cement truck driver for twenty-seven years before suffering a heart attack on
December 19, 2005. Murphy subsequently found part-time work as the front-desk attendant at a
bowling alley. He contends that he is disabled and unable to sustain full-time employment
because he suffers from several medical conditions—including sleep apnea, exhaustion, fatigue,
dizzy spells, lightheadedness, sweating, shortness of breath, trouble concentrating, knee pain,
diarrhea, and headaches—related to his heart condition and exacerbated by his extreme obesity.
Shortly after his heart attack, which required emergency cardiac catheterization and
angioplasty surgery to clear a completely blocked coronary artery, Murphy began treatment with
Dr. Rafael Vargas, a primary care physician, and Dr. Manoj Duggal, a cardiologist. In a June
2006 “Cardiac Report” to the Illinois Bureau of Disability Determination Services, Dr. Vargas,
who has seen Murphy three times, recorded Murphy’s New York Heart Association (“NYHA”)
rating as Class III. Doc. 11-10 at 19. NYHA classifications estimate a patient’s functional
capacity, which is the physical activity a person’s heart can tolerate. Class III indicates that the
patient has “cardiac disease resulting in marked limitation of physical activity. They are
comfortable at rest. Less than ordinary activity causes fatigue, palpitation, dyspnea [shortness of
breath], or anginal pain [chest pain].” American Heart Association, “Classes of Heart Failure,”
www.heart.org/HEARTORG/Conditions/HeartFailure/AboutHeartFailure/Classes-of-HeartFailure_UCM_306328_Article.jsp. Dr. Vargas also concluded that Murphy was suffering from
persistent fatigue and shortness of breath, but that there were no restrictions on his ability to
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perform daily living activities such as household duties, grocery shopping, and climbing stairs.
Doc. 1-10 at 20.
Dr. Duggal saw Murphy every three to six months beginning in March 2006 and
personally implanted a defibrillator in Murphy’s chest to reduce the likelihood of sudden cardiac
death. Dr. Duggal twice completed “Cardiac Functional Capacity Questionnaires” regarding
Murphy. The first, executed in August 2007, recording Murphy’s NYHA functional capacity as
Class III. The report stated that Murphy suffered from shortness of breath and sweatiness and
that, as a result, he could walk only two to three blocks without rest or suffering severe pain,
could stand for about two hours and sit for about four hours in an eight-hour workday, and, if
working, needed to take more than four days off per month due to his health. Dr. Duggal
concluded that if Murphy returned to work, he would need a job that permitted him to “shift[]
positions at will from sitting, standing or walking,” to take at least two unscheduled breaks
during the day, and to avoid lifting more than twenty pounds. Doc. 11-11 at 34-38.
The second Functional Capacity Questionnaire, which Dr. Duggal completed in August
2008, diagnosed Murphy with an NYHA functional capacity of Class II, which “result[s] in
slight limitation of physical activity. [Patients] are comfortable at rest. Ordinary physical
activity results in fatigue, palpitation, dyspnea, or anginal pain.” American Heart Association,
“Classes of Heart Failure,” supra. Dr. Duggal noted that Murphy suffered from shortness of
breath, fatigue, and dizziness, and that those symptoms occasionally interfered with the
“attention and concentration needed to perform even simple work tasks.” Doc. 11-11 at 56. Dr.
Duggal also reported that Murphy could walk two blocks without rest or severe pain, could stand
for less than two hours and sit for about four hours in an eight-hour workday, and needed two or
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three unscheduled breaks during a workday in order to lie down. Dr. Duggal further indicated
that Murphy would need to shift at will among sitting, standing, and walking while at work; to
elevate his legs to a ninety-degree angle during prolonged sitting; and to take more than four
days off per month due to his health. Id. at 57-58. In both assessments, Dr. Duggal stated that
Murphy’s impairments have lasted and could be expected to last at least twelve months. Id. at
36, 57.
Both before and between Dr. Duggal’s NYHA functional capacity evaluations, Murphy
underwent several clinical tests. Heart stress tests revealed that Murphy’s ejection fraction, a
measure of the heart’s ability to pump blood, ranged from thirty-five percent after his surgery to
nearly fifty percent in April 2008. Doc. 11-9 at 60; Doc. 11-10 at 46; Doc. 11-11 at 46. An
ejection fraction greater than fifty percent is generally deemed normal. Doc. 11-9 at 50. A sleep
study revealed that Murphy had “positional obstructive sleep apnea,” which required him to use
a device that stopped him from sleeping on his back and prevented an obstruction to his oxygen
intake. Doc. 11-10 at 24.
During treatment sessions, Murphy repeatedly told Dr. Duggal that he was suffering from
shortness of breath and fatigue. Doc. 11-11 at 66. In a series of letters from Dr. Duggal to Dr.
Vargas, however, Dr. Duggal noted that Murphy “feels well and reports no symptoms,” id. at 99,
“feels better [with n]o chest pain or chest pressure,” id. at 98, and “report[ed] no chest pain or
pressure,” id. at 64-65.
At the request of the state agency, Dr. Young-Ja Kim completed a “Physical Residual
Functional Capacity Assessment” of Murphy. Dr. Kim based his assessment on a review of
Murphy’s file as it existed in July 2006, and he never personally examined or treated Murphy.
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Dr. Kim concluded that Murphy could stand for about six hours in an eight-hour workday, sit for
about six hours in an eight-hour workday, frequently lift ten pounds, occasionally lift twenty
pounds, and engage in unlimited pushing and pulling activities. Dr. Kim left blank a section
asking him to “[e]xplain how and why the evidence supports [his] conclusions” regarding lifting,
standing, and sitting. Doc. 11-10 at 33. Dr. Kim opined that Murphy could occasionally climb
stairs, stoop, kneel, crouch, or crawl at work, and that he had no limitations in reaching overhead
or in working in extreme environmental conditions. Id. at 34-36. A second state agency doctor,
Dr. Henry Belnet, reviewed Dr. Kim’s findings on October 5, 2006. Dr. Belnet stated without
further explanation, “I have reviewed all of the evidence in file and the assessment of 7/13/06 is
affirmed as written.” Id. at 41.
B.
The Administrative Hearing
At the administrative hearing before the ALJ, Murphy testified that in the months
following his heart attack he noticed an improvement in his health, but that he had more recently
“kept on getting tired and exhausted” and had so informed Dr. Duggal at each visit. Doc. 11-4 at
57. Murphy further testified that after he started working part-time in July 2007, a decision
motivated by financial considerations, ibid., he was consistently “wiped out and exhausted” and
needed to rest for an hour to ninety minutes after returning home, id. at 55, 67. Murphy noted
that he was able to sit at work when necessary. Id. at 51-52.
Murphy testified that while he does not have chest pain, shortness of breath while sitting,
or emotional problems, id. at 65, he does get “knock[ed] out” climbing stairs, lightheaded and
sweaty when standing for forty-five minutes, fatigued when walking a block and a half, sore legs
when sitting for more than three hours, and dizzy when standing, id. at 67, 71-73. Murphy added
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that he has diarrhea, indigestion, gas, and headaches as side effects of his medications. Id. at 74.
When asked by the ALJ how Dr. Duggal reached his diagnoses, Murphy said he did not know.
Id. at 63. Murphy testified that Dr. Duggal was aware of his part-time employment, id. at 62,
was aware of his dizzy spells and difficulties standing, id. at 75, and had told Murphy to elevate
his legs while sitting, id. at 72. Regarding his daily activities, Murphy testified that he drove five
or six times a week, primarily to and from work, and that he attempted to help around the house
with cooking and laundry. Id. at 50, 67.
The vocational expert (“VE”), Michelle Peters, testified about Murphy’s previous work
and his prospects for other employment in the Chicago metropolitan area. VE testimony helps to
determine “whether [the claimant’s] work skills can be used in other work and the specific
occupations in which they can be used ….” 20 C.F.R. § 404.1566(e). At a hearing, a VE may
“respon[d] to a hypothetical question about whether a person with the physical and mental
limitations imposed by the claimant’s medical impairment(s) can meet the demands of the
claimant’s previous work, either as the claimant actually performed it or as generally performed
in the national economy.” 20 C.F.R. § 404.1560(b)(2).
The VE opined that Murphy’s previous work as a cement truck driver was semi-skilled
labor with a medium level of exertion and that his part-time work as a bowling alley cashier was
unskilled labor requiring light exertion. The VE then was asked a series of hypothetical
questions regarding employment prospects for hypothetical individuals. The ALJ asked what
sort of and how many jobs an individual of Murphy’s age, education, and work experience might
find if he was limited to full time work at the “light exertional level” and could only occasionally
climb stairs, crawl, or kneel, and could never climb ladders, never engage in repetitive pushing
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or pulling, never engage in repetitive reaching overhead with his left arm, and never be exposed
to extreme environments. The VE estimated that there would be 5,000 cashier jobs, 2,500
assembly positions, and 1,200 inspection jobs in the metropolitan area. The ALJ then adjusted
the hypothetical to suppose that the employee would have the option to sit or stand at will. With
the new limitation, the VE excluded the cashier jobs from the pool, and reduced the assembly
and inspection jobs to 1,250 and 600, respectively. Doc. 11-4 at 81-83. The VE also estimated
that there are 1,200 assembly positions, 950 hand packaging positions, and 1,000 telemarketer
positions that are entirely sedentary. Id. at 83.
Murphy’s counsel asked the VE if any jobs would allow an employee to take two
unscheduled fifteen-minute breaks a day. The VE responded that no such jobs existed because
an extra thirty minutes of break time “would be excessive.” Id. at 86. When asked about the
impact of four or more health-related absences in a month, the VE responded that “[i]t would
eliminate all substantial gainful activity.” Id. at 87.
C.
The Commissioner’s Decision
The ALJ issued a decision finding that Murphy was not disabled and therefore that he
was ineligible for DIB. The ALJ followed the “five-step sequential evaluation process” for
determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v). The five
steps are as follows:
The first step considers whether the applicant is engaging in substantial
gainful activity. The second step evaluates whether an alleged physical or
mental impairment is severe, medically determinable, and meets a
durational requirement. The third step compares the impairment to a list of
impairments [in 20 C.F.R. Part 404, Subpart P, App. 1] that are considered
conclusively disabling. If the impairment meets or equals one of the listed
impairments, then the applicant is considered disabled; if the impairment
does not meet or equal a listed impairment, then the evaluation continues.
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The fourth step assesses an applicant’s residual functional capacity (RFC)
and ability to engage in past relevant work. If an applicant can engage in
past relevant work, he is not disabled. The fifth step assesses the
applicant’s RFC, as well as his age, education, and work experience to
determine whether the applicant can engage in other work. If the applicant
can engage in other work, he is not disabled.
Weatherbee v. Astrue, 649 F.3d 565, 569 (7th Cir. 2011) (internal quotation marks omitted); see
also Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004). RFC “is defined as ‘the most [the
claimant] can still do despite [his] limitations.’” Weatherbee, 649 F.3d at 569 n.2 (alterations in
original) (quoting 20 C.F.R. §§ 404.1545(a), 416.945(a)). “A finding of disability requires an
affirmative answer at either step three or step five. The claimant bears the burden of proof at
steps one through four, after which at step five the burden shifts to the Commissioner.” Briscoe
ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005). At the fifth step, the government
“must present evidence establishing that the claimant possesses the [RFC] to perform work that
exists in a significant quantity in the national economy.” Weatherbee, 649 F.3d at 569 (footnote
omitted).
Here, the ALJ determined that Murphy previously engaged in “substantial gainful
activity” but had not done so since the alleged onset date (step one); that Murphy suffered from
the severe impairments of obesity and coronary artery disease (step two); and that neither
impairment was listed or equal to a listing in 20 C.F.R. Part 404, Subpart P, App. 1 (step three).
Murphy does not challenge the ALJ’s rulings at any of these steps. As part of step four, the ALJ
determined that Murphy had the RFC to “perform most light work.” Doc. 11-4 at 18. To
support this determination, the ALJ reasoned:
After careful consideration of the entire record, I find that the claimant has
the RFC to perform most light work as defined in 20 CFR 404.1567(b). He
can lift, carry, push and/or pull up to 20 pounds occasionally and up to 10
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pounds frequently, and he can sit, stand and/or walk throughout a normal
workday, with typical breaks. Because of his obesity and history of heart
disease, he should never climb ladders, ropes or scaffolds, work on moving
or unstable surfaces, crouch or crawl, he should only occasionally climb
ramps or stairs, stoop or kneel. He should not do constant repetitive lifting
or reaching overhead with the non-dominate left extremity, as he complains
of discomfort when he does so related to his implanted defibrillator, and he
should not perform work that would expose him to extremes of
temperature, concentrated respiratory irritants, unprotected heights or
unguarded hazardous equipment. The record does not establish that
claimant requires a sit-stand option or that he must elevate his legs to 90º
while seated. I find further that claimant would be distracted only rarely by
pain, fatigue or other symptoms, to the extent that he was off task and not
productive, outside break time, and that he is able to sustain work in jobs
within his physical RFC.
Id. at 18-19. Given this conclusion, the ALJ found that Murphy was unable to perform his past
work as a cement truck driver, which requires exertion at the medium level.
At step five, however, the ALJ concluded that Murphy was capable of performing other
jobs that were available in substantial numbers in the Chicago metropolitan area. In particular,
the ALJ found, based on the VE’s testimony, that an individual with Murphy’s RFC could work
as a full-time cashier, assembler, or inspector. Having determined that jobs existed for an
individual with Murphy’s RFC, the ALJ determined that Murphy was not disabled under the
Social Security Act and thus was ineligible for DIB.
Discussion
A claimant is disabled under the Social Security Act if he is unable to perform “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 12 months.” 42 U.S.C. § 423(d)(1)(A). The claimant will
prevail if his impairments prevent him from performing his prior employment and any other job
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generally available in the national economy. See 42 U.S.C. § 423(d)(2)(A). As noted above,
because the Social Security Appeals Council declined to review the ALJ’s decision that Murphy
was not disabled, the ALJ’s decision became the Commissioner’s final decision.
Section 405 of the Act authorizes judicial review of the Commissioner’s final decision.
See 42 U.S.C. § 405(g). The court reviews the Commissioner’s legal determinations de novo
and her factual findings deferentially, affirming those findings so long as they are supported by
substantial evidence. See Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010); 42 U.S.C.
§ 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive”). Substantial evidence means “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion”; it “must be more than a
scintilla but may be less than a preponderance.” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir.
2007) (internal quotation marks omitted). If the reviewing court finds that the Commissioner’s
decision is not supported by substantial evidence, “a remand for further proceedings is [usually]
the appropriate remedy.” Briscoe, 425 F.3d at 355. Moreover, the court “cannot uphold an
administrative decision that fails to mention highly pertinent evidence,” Parker v. Astrue, 597
F.3d 920, 921 (7th Cir. 2010), or a decision containing errors of law, Schmidt v. Astrue, 496 F.3d
833, 841 (7th Cir. 2007).
In addition to satisfying these standards, the Commissioner’s opinion must build an
“accurate and logical bridge from the evidence to [the] conclusion so that [the] reviewing court[]
may assess the validity of the agency’s ultimate findings and afford a claimant meaningful
judicial review.” Young v. Barnhart, 362 F.3d 995, 1002 (7th Cir. 2004) (internal quotation
marks omitted); accord Briscoe, 425 F.3d at 351 (“In addition to relying on substantial evidence,
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the ALJ must also explain his analysis of the evidence with enough detail and clarity to permit
meaningful appellate review.”); Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001) (holding
that the Commissioner must “articulate at some minimal level her analysis of the evidence to
permit an informed review”) (internal quotation marks omitted). To build a logical bridge, the
Commissioner must “sufficiently articulate his assessment of the evidence to assure [the court]
that he considered the important evidence and to enable [the court] to trace the path of his
reasoning.” Hickman v. Apfel, 187 F.3d 683, 689 (7th Cir. 1999) (internal quotation marks
omitted). The court “cannot uphold a decision by an administrative agency … if, while there is
enough evidence in the record to support the decision, the reasons given by the trier of fact do
not build an accurate and logical bridge between the evidence and the result.” Sarchet v. Chater,
78 F.3d 305, 307 (7th Cir. 1996).
Murphy argues that the Commissioner’s decision erred in four respects: (1) by
improperly affording more weight to the medical opinions of the two state agency doctors than
to the opinions of Murphy’s treating physicians; (2) by failing to consider Murphy’s obesity in
combination with his other impairments; (3) by improperly assessing Murphy’s credibility; and
(4) by failing to consider all relevant evidence when rendering its RFC determination. Because
the court agrees with the first two contentions, remand is necessary.
A.
The Weight Afforded Medical Opinions
Generally, the ALJ must give “controlling weight” to the medical opinion of a treating
physician “if it is ‘well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with other substantial evidence.’” Larson v. Astrue, 615 F.3d
744, 749 (7th Cir. 2010) (quoting 20 C.F.R. § 404.1527(c)(2)); see also Roddy v. Astrue, 705
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F.3d 631, 636 (7th Cir. 2013); Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011); Punzio v.
Astrue, 630 F.3d 704, 710 (7th Cir. 2011). An ALJ must offer “good reasons” for discounting a
treating physician’s opinion. Larson, 615 F.3d at 749 (internal quotation marks omitted). Put
another way, “[e]ven though the ALJ was not required to give [the treating physician’s] opinion
controlling weight, [the ALJ] was required to provide a sound explanation for his decision to
reject it and instead adopt [the state agency physician’s] view.” Roddy, 705 F.3d at 636
(citations omitted).
In reaching its RFC conclusion, the ALJ did not give controlling weight to Dr. Vargas’s
opinion; the explanation given was that Dr. Vargas “had little documented contact with claimant
before he completed the impairment form and his assessment of claimant’s cardiac impairment
is less reliable than that of claimant’s treating cardiologist.” Doc. 11-4 at 23. As to Dr. Duggal,
the ALJ’s opinion determined that his contemporaneous progress notes and diagnostic studies
did not “well support” his RFC opinions. Ibid. In particular, the ALJ stated that Dr. Duggal’s
2008 diagnosis placed Murphy in NYHA Class II and that the classification was “apparently
consistent with claimant’s normal or near-normal ejection fraction reported on numerous
imaging studies.” Ibid. The ALJ also found it problematic that Murphy did not know how Dr.
Duggal reached his medical diagnosis. The ALJ explained that because the ALJ could not
identity in Dr. Duggal’s notes the basis for his sit-stand and leg-elevation opinions, his
communication of those opinions to Murphy, or his awareness of Murphy’s part-time
employment, controlling weight could not be given to Dr. Duggal’s opinions. The ALJ added:
“The State agency doctors, while not cardiologists, are more familiar with the process of
translating limitations caused by impairments into the type of functional RFC opinions
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contemplated by the regulations, and those opinions therefore are accorded weight to the extent
they are consistent with the RFC conclusion above.” Ibid.
Murphy does not challenge the ALJ’s findings regarding Dr. Vargas, and instead focuses
on Dr. Duggal. None of the ALJ’s explanations as to Dr. Duggal qualify as “good reasons” for
rejecting his opinion.
As an initial matter, if an ALJ is concerned that a treating physician “lack[s] backup
support” for his assessment, the ALJ “has a duty to solicit additional information to flesh out an
opinion for which the medical support is not readily discernable.” Barnett v. Barnhart, 381 F.3d
664, 669 (7th Cir. 2004) (citing 20 C.F.R. § 404.1527(c)(3)); see also SSR 96-2p, 1996 WL
374188, at *4 (July 2, 1996) (“[I]n some instances, additional development required by a
case—for example, to obtain more evidence or to clarify reported clinical signs or laboratory
findings—may provide the requisite support for a treating source’s medical opinion that at first
appeared to be lacking or may reconcile what at first appeared to be an inconsistency between a
treating source’s medical opinion and the other substantial evidence in the case record.”); Nelms
v. Astrue, 553 F.3d 1093, 1098 (7th Cir. 2009) (“the ALJ is required to supplement the record, as
necessary, by asking detailed questions, ordering additional examinations, and contacting
treating physicians and medical sources to request additional records and information”). At the
hearing, the ALJ noted that “I’m just not confident that we have all the records” from Dr. Duggal
and that it was possible that certain information was not written in Dr. Duggal’s notes. Doc. 114 at 65 (“He doesn’t write it down. It might be on your paper chart. Sometimes they have
separate [documents].”). Although the ALJ held the administrative record open for thirty days
after the hearing, the ALJ did so not to seek information regarding the basis for Dr. Duggal’s
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opinions, but only to determine if Murphy’s testimony could be corroborated by an April 2008
progress note from Dr. Duggal and to receive “cardiac rehab records” that did not involve Dr.
Duggal. Id. at 91-93 (“Especially since … [Murphy’s] testimony about the side effects [from the
medication], that those had been reported to the doctor. I mean … I’m not seeing that anywhere
else. So if that’s a recent thing I do need to … get some corroboration for that.”).
The ALJ indicated that “I cannot find in Dr. Duggal’s notes” the basis for his opinions,
that “I also do not see” whether Dr. Duggal was aware of certain information, and that
“apparently” certain evidence underpinned a particular conclusion. Id. at 23. This aspect of the
ALJ’s decision indicates that the ALJ concluded that the basis for Dr. Duggal’s medical opinions
was not readily discernable. See Simila v. Astrue, 573 F.3d 503, 517 (7th Cir. 2009) (holding
that ALJ’s statement that “it is unclear” what information underpinned the doctor’s opinion is
“tantamount to ‘not readily discernable’”). The ALJ therefore “should have contacted Dr.
[Duggal] for clarification of [his] medical opinions, asking for more detail regarding” his
knowledge of Murphy’s employment, the basis for his sit-stand and elevation opinions, and
whether he communicated those opinions to Murphy. Barnett, 381 F.3d at 669; see also
Richards v. Astrue, 370 F. App’x 727, 731 (7th Cir. 2010) (“an ALJ may not draw conclusions
based on an undeveloped record and has a duty to solicit additional information to flesh out an
opinion for which the medical support is not readily discernable”) (internal quotation marks
omitted); Simila, 573 F.3d at 517 (stating that the ALJ should have re-contacted the treating
physician where the ALJ indicated that the basis for the physician’s medical opinions was “not
readily discernable”).
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The ALJ’s decision also states that Dr. Duggal’s NYHA Class II classification was
“apparently consistent with claimant’s normal or near-normal ejection fraction.” Doc. 11-4 at
23. This statement does not give the reviewing court any indication as to why this fact is
relevant or why it undermines the reliability of Dr. Duggal’s opinions. Did the ALJ think that
Class II functional capacity could not support a claim for disability? Or did the ALJ believe that
all individuals with normal ejection fractions are free from fatigue, palpitation, dyspnea, or
anginal pain as a result of ordinary physical activity? It is impossible to tell from the ALJ’s
explanation, which prevents meaningful judicial review. See Martinez v. Astrue, 630 F.3d 693,
696 (7th Cir. 2011) (holding that the ALJ’s noncommittal explanation that the claimant’s
medical history was “not necessarily consistent with his allegations of disability” did not give
the court any way to review the opinion). The ALJ also placed weight on the fact that Murphy
“had ‘no idea’ how Dr. Duvall [sic] knew for how long claimant could sit, stand or walk.” Doc.
11-4 at 23. As discussed above, the ALJ had the duty “flesh out” the basis for Dr. Duggal’s
opinion to the extent it was not readily discernable. Barnett, 381 F.3d at 669.
Even if “an ALJ gives good reasons for not giving controlling weight to a treating
physician’s opinion, she has to decide what weight to give that opinion.” Campbell v. Astrue,
627 F.3d 299, 308 (7th Cir. 2010). “The applicable regulations guide that decision by
identifying several factors that an ALJ must consider: ‘the length, nature, and extent of the
treatment relationship; frequency of examination; the physician’s specialty; the types of tests
performed; and the consistency and support for the physician’s opinion.’” Ibid. (quoting Larson,
615 F.3d at 751); see also Roddy, 705 F.3d at 637 (noting that Social Security regulations
provide that “more weight should be given to the opinions of doctors who have (1) examined a
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claimant, (2) treated a claimant frequently and for an extended period of time, (3) specialized in
treating the claimant’s condition, (4) performed appropriate diagnostic tests on the claimant,
[and] (5) offered opinions that are consistent with the objective medical evidence and the record
as a whole”) (citing 20 C.F.R. § 404.1527(c)(2)(i), (ii)). The Seventh Circuit repeatedly has
criticized ALJ decisions that discount the treating physician’s opinion but say nothing regarding
this set of factors. See, e.g., Mueller v. Astrue, 493 F. App’x 772, 776-77 (7th Cir. 2012) (“If an
ALJ does not give a treating physician’s opinion controlling weight, the regulations require the
ALJ to consider the length, nature, and extent of the treatment relationship, frequency of
examination, the physician’s specialty, the types of tests performed, and the consistency and
supportability of the physician’s opinion.”) (internal quotation marks omitted); Campbell, 627
F.3d at 308; Larson, 615 F.3d at 751; Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008)
(holding that if the treating physician’s opinion is not given controlling weight, “the checklist
comes into play”).
Several of the factors support the conclusion that Dr. Duggal’s opinions, even if not
controlling, should be given substantial weight. Dr. Duggal had a relationship with Murphy
spanning more than twenty-four months; he treated Murphy every three to six months, Doc. 11-4
at 21-22; he is a cardiologist; and his opinions remained relatively consistent throughout the
course of his treatment. Doc. 11-11 at 66 (progress notes documenting shortness of breath and
fatigue); id. at 34-38, 57-58 (functional capacity assessments nearly identical). “Proper
consideration of these factors may have caused the ALJ to accord greater weight to Dr.
[Duggal’s] opinion[s]” even if the ALJ had trouble finding certain evidence in Dr. Duggal’s
notes. Campbell, 627 F.3d at 308 (where the treatment lasted fifteen months, the treating
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physician’s findings remained relatively consistent, and the treating physician practiced in the
relevant medical specialty, the physician’s opinion “should be given great weight”). Because the
ALJ did not explicitly address the above-referenced factors or indicate what weight the treating
physician’s opinions were given, remand is warranted. See Santoro v. Astrue, 2011 WL 528257,
at *9 (N.D. Ill. Feb. 7, 2011) (“To the extent the ALJ’s decision does not explicitly address the
checklist of factors as applied to the medical opinion evidence, it must be reversed for further
analysis.”) (internal quotation marks omitted); Smith v. Comm’r of Soc. Sec., 2010 WL 1838366,
at *10 (N.D. Ind. May 6, 2010) (same).
The ALJ’s reliance on the opinions of non-examining state agency doctors who reviewed
only part of Murphy’s records further undermines confidence in the ALJ’s decision. Dr. Kim
and Dr. Belnet, neither a cardiologist, reviewed Murphy’s health records as they existed in July
2006. As a result, they did not have the benefit of over two years of subsequent treatment
records. The Seventh Circuit has cautioned that where state agency doctors do not have the
opportunity to review subsequent treatment records, their opinions may be entitled to less weight
because the new information “would affect the state agency reviewers’ assessment of” the
claimant’s health. Campbell, 627 F.3d at 309; see also Jelinek v. Astrue, 662 F.3d 805, 812 (7th
Cir. 2011) (“[T]he ALJ would be hard-pressed to justify casting aside Dr. Radzeviciene’s
opinion in favor of these earlier state-agency opinions. By 2008, the state-agency opinions were
two years old. Dr. Radzeviciene’s opinion, on the other hand, was the most recent professional
word on Jelinek’s mental impairments, by a treating psychiatrist who had seen her repeatedly
over a two-year period with full access to her complete medical record to that point.”).
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The ALJ’s explanation for why greater weight was given to the state agency doctors’
opinions is unpersuasive. The ALJ stated that Dr. Kim and Dr. Belnet “are more familiar with
the process of translating limitations caused by impairments into the type of functional RFC
opinions contemplated by the regulations, and those opinions therefore are accorded weight to
the extent they are consistent with the RFC conclusion above.” Doc. 11-4 at 23. This
explanation puts the cart before the horse, giving weight to the particular medical opinions that
mesh with the ALJ’s RFC conclusion and discounting those that do not. Given this explanation,
it would appear that the ALJ did not assess the medical opinions before reaching an RFC
conclusion. See Brindisi ex rel. Brindisi v. Barnhart, 315 F.3d 783, 787-88 (7th Cir. 2003)
(where the ALJ rejected the claimant’s testimony “to the extent” it was inconsistent with the
RFC assessment, the court observed that the ALJ’s “post-hoc statement turn[ed] the credibility
determination process on its head by finding statements that support the ruling credible and
rejecting those statements that do not”).
Even assuming the ALJ weighed the consultative opinions before reaching an RFC
determination, the ALJ’s reasoning does not withstand scrutiny. The ALJ discounted Dr.
Vargas’s health assessments because he was not a cardiologist and because he treated Murphy
only three times before offering his opinion on June 22, 2006. This, the ALJ concluded,
rendered Dr. Vargas’s opinion unreliable. Less than a month later, Dr. Kim (one of the state
agency doctors) offered his assessment of Murphy’s health. Like Dr. Vargas, Dr. Kim is not a
cardiologist, but unlike Dr. Vargas, Dr. Kim had never met or personally treated Murphy. The
same is true of Dr. Belnet, who rendered his one-sentence opinion in October 2006. Both
opinions were accorded weight even though they were not accompanied by any supporting
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explanations. See 20 C.F.R. § 404.1527(d)(3) (“[B]ecause nonexamining sources have no
examining or treating relationship with you, the weight we will give their opinions will depend
on the degree to which they provide supporting explanations for their opinions.”); Santoro, 2011
WL 528257, at *9 (holding that reliance on the opinions of several state agency doctors who
never treated the claimant or only briefly treated him was inappropriate absent an explanation of
why the state doctors’ medical conclusions were “more reliable than the opinions proffered by”
the treating physician).
The ALJ justified this approach on the ground that the state agency doctors are more
familiar with the process of converting physical limitations into RFC opinions. This, however,
says nothing about the substance of Dr. Kim’s and Dr. Belnet’s opinions regarding whether
Murphy had physical limitations, and it does not explain why their conclusions are entitled to
weight. Whether Dr. Kim and Dr. Belnet can translate a claimant’s limitations into a coherent
and technically proficient RFC opinion means nothing if they do not provide reliable support at
the anterior step of assessing and determining the claimant’s limitations. Because the ALJ did
not adequately address why the state agency doctors’ opinions were entitled to greater weight on
this score, reliance upon their opinions was inappropriate. See Moss v. Astrue, 555 F.3d 556,
561 (7th Cir. 2009) (an ALJ cannot “accept one physician’s opinions but not the other’s …
without any consideration of the factors outlined in the regulations, such as the differing
specialties of the two doctors [and] the additional diagnostic testing conducted by [the treating
doctor]”); see also Collins v. Astrue, 324 F. App’x 516, 521 (7th Cir. 2009) (citing Moss for the
proposition that an “ALJ’s decision to accept one physician’s opinion over another’s without any
consideration of the factors outlined in the regulations is reason for reversal”).
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In an effort to buttress the ALJ’s determination, the Commissioner’s brief argues that the
ALJ rightly gave less weight to Dr. Duggal’s opinion because (1) Dr. Duggal’s 2007 and 2008
assessments noted increasingly serious physical limitations without showing corresponding
deteriorations in Murphy’s health, in contravention of Griffith v. Callahan, 138 F.3d 1150, 1155
(7th Cir. 1998); (2) ejection fractions measure the ability of the heart to pump blood, and the
more blood a heart can pump, the “slight[er]” the physical limitations; and (3) Murphy may have
had NYHA Class II symptoms like shortness of breath and fatigue, but those symptoms were not
severe because Dr. Duggal had cleared Murphy for light work in March 2006 without a sit-stand
option or the need to elevate his legs. The Commissioner’s brief adds that the ALJ gave the state
agency doctors’ opinions more weight for “multiple reasons,” including the reasons discussed
above and that Dr. Duggal’s opinion was inconsistent with a Class II finding.
These arguments may be good ones, but they were not offered in the ALJ’s decision.
The court’s review is limited to the reasons articulated in the ALJ’s decision, not the post-hoc
rationale submitted in the Commissioner’s brief. See SEC v. Chenery Corp., 318 U.S. 80, 87-88
(1943); Roddy, 705 F.3d at 637; Martinez, 630 F.3d at 694; Phillips v. Astrue, 413 F. App’x 878,
886 (7th Cir. 2010) (“These post-hoc rationalizations not only undermine our confidence in the
accuracy of the Commissioner’s representations of the record, but we have repeatedly warned
that attempts to supplement the ALJ’s decision are inappropriate. … [T]he government may not
provide the missing justification for an ALJ’s decision.”); Spiva v. Astrue, 628 F.3d 346, 353
(7th Cir. 2010) (holding that “a persuasive brief [cannot] substitute for” the ALJ’s deficient
opinion); Larson, 615 F.3d at 749. Accordingly, the ALJ’s decision cannot be sustained based
on the new rationales pressed by the Commissioner’s brief.
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For these reasons, the ALJ’s RFC determination cannot be sustained. Remand is
warranted on this ground alone. See Bjornson v. Astrue, 671 F.3d 640, 649 (7th Cir. 2012);
Scott, 647 F.3d at 740; Martinez, 630 F.3d at 697-99.
B.
Considering the Combined Effect of Murphy’s Obesity and His Other
Impairments
The ALJ’s RFC determination is also deficient in failing to sufficiently consider
Murphy’s extreme obesity. Murphy is 5 feet 6 inches tall and weighs between 250 and 255
pounds, which translates to a body mass index (“BMI”) between 40.4 and 41.2. A person with a
BMI of 30 is deemed obese, and a person with a BMI of 40 is deemed extremely obese. SSR 021p, 2002 WL 34686281, at *2 (Sept. 12, 2002). The Seventh Circuit has explained that “the
failure to consider the bearing of [the claimant’s] extreme obesity” is a “grave[] error.”
Martinez, 630 F.3d at 698. Indeed, even if the ALJ mentions obesity as a severe impairment, as
the ALJ did here, if the ALJ’s decision “did not consider its significance in relation to” other
medical ailments, remand is warranted. Ibid.; see also Arnett v. Astrue, 676 F.3d 586, 593 (7th
Cir. 2012) (faulting the ALJ for “fail[ing] to take into account [the claimant’s] obesity”).
Apart from noting that Murphy’s obesity is a severe impairment, the ALJ’s decision
mentioned Murphy’s obesity only one other time, stating that “[b]ecause of [Murphy’s] obesity
and history of heart disease, he should never climb ladders, ropes or scaffolds, work on moving
or unstable surfaces, crouch or crawl, and he should only occasionally climb ramps or stairs,
stoop or kneel.” Doc. 11-4 at 18. The Commissioner’s brief argues that because the ALJ
“considered all symptoms,” the ALJ adequately assessed the impact Murphy’s extreme obesity
had on his other ailments and employment options. Doc. 21-2 at 10. Yet the ALJ’s opinion does
not address how Murphy’s extreme obesity bears on his ability to sit or stand for at least six
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hours, or how his extreme obesity interacts with his Class II designation, the ejection fractions,
and the fatigue and shortness of breath that already arise from ordinary physical activity. This
“failure to consider the cumulative effect of impairments not totally disabling in themselves was
an elementary error” that warrants a remand. Parker, 597 F.3d at 923; see also Arnett, 676 F.3d
at 591-92; Denton v. Astrue, 596 F.3d 419, 423 (7th Cir. 2010); Terry v. Astrue, 580 F.3d 471,
477 (7th Cir. 2009); Green v. Apfel, 204 F.3d 780, 782 (7th Cir. 2000).
On remand, the ALJ should engage in a cumulative assessment of Murphy’s cardiac
impairments and obesity that the court can follow and assess. See 20 C.F.R. § 404.1523 (“In
determining whether your physical or mental impairment or impairments are of a sufficient
medical severity that such impairment or impairments could be the basis of eligibility under the
law, we will consider the combined effect of all of your impairments without regard to whether
any such impairment, if considered separately, would be of sufficient severity. If we do find a
medically severe combination of impairments, the combined impact of the impairments will be
considered throughout the disability determination process.”); Martinez, 630 F.3d at 698 (“It is
one thing to have [trouble standing and sitting because of a bad heart], it is another thing to have
a bad [heart] supporting a body mass index in excess of 40.”); Golembiewski v. Barnhart, 322
F.3d 912, 918 (7th Cir. 2003) (“Golembiewski has a host of significant medical conditions,
including the partially amputated leg, epilepsy, back pain, bowel and bladder dysfunction, and
grasping problems that we have discussed. Having found that one or more of Golembiewski’s
impairments was ‘severe,’ the ALJ needed to consider the aggregate effect of this entire
constellation of ailments—including those impairments that in isolation are not severe. On
remand the agency must remember that a competent evaluation of Golembiewski’s application
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depends on the total effect of all his medical problems.”) (citations omitted); Green, 204 F.3d at
782 (remanding because “[e]ven if the shortness of breath and the chest pain were not in
themselves enough to disable Green from doing medium work, the combination of these
conditions together with his arthritis and swollen leg may have been”).
C.
Murphy’s Two Other Arguments
Given the foregoing analysis, it is unnecessary to consider Murphy’s arguments
regarding the ALJ’s credibility determinations and the ALJ’s alleged failure to analyze all
relevant evidence. See Fox v. Astrue, 2010 WL 1381662, at *6 (S.D. Ind. Mar. 30, 2010)
(“[B]ecause on remand the ALJ will reconsider the mental health evidence and restrictions …
that process is likely to also [a]ffect the ALJ’s view of [the claimant’s] overall credibility. Under
these circumstances, the court cannot affirm the ALJ’s credibility analysis.”); Hudson v. Astrue,
2009 WL 2612528, at *14 n.6 (N.D. Ill. Aug. 24, 2009) (“In light of this remand order [to
reassess an RFC determination], we find it unnecessary to address the other arguments that
plaintiff has raised. On remand, the ALJ will be free to re-examine and reassess those points,
including … his credibility decisions in determining plaintiff’s RFC.”).
Conclusion
For the foregoing reasons, the court grants Murphy’s motion for summary judgment,
denies the Commissioner’s motion for summary judgment, and remands the case to the
Commissioner for further review consistent with this opinion.
June 11, 2013
United States District Judge
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