Miller v. Astrue

Filing 36

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 9/27/2011:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ALVIN MILLER,

)
)
Plaintiff,
)
)
v.
)
)
MICHAEL J. ASTRUE,
)
Commissioner of Social Security,)
)
Defendant.
)

No.

10 C 8057

MEMORANDUM OPINION AND ORDER
Alvin Miller (“Miller”) seeks judicial review, pursuant to
Social Security Act (“Act”) §§405(g) and 1383(c),1 of the final
decision of Commissioner of Social Security Michael Astrue
(“Commissioner”) that denied Miller’s claims for disability
insurance benefits (“Benefits”) and supplemental security income
(“SSI”) disability benefits.

Miller has moved for summary

judgment under Fed. R. Civ. P. (“Rule”) 56 or alternatively for a
remand to Commissioner, while Commissioner seeks affirmance of
his decision.

For the reasons stated here, the Rule 56 motion is

denied and the case is remanded for further consideration.
Procedural Background2
Miller filed an application for Benefits and SSI on

1

All further statutory references will take the form
“Section --,” using the Title 42 numbering rather than the Act’s
internal numbering. All 20 C.F.R. references are cited
“Reg. § --.” Miller’s memorandum is cited “M. Mem. --.”
2

What follows in the next sections of text is drawn from
the administrative record (cited “R. --”).

October 29, 2007, asserting onset dates of April 12, 2002 for his
SSI application and January 1, 2007 for his Benefits application
(R. 185-90).3

On January 9, 2008 Miller’s application was

initially denied, and it was again denied on reconsideration on
May 22, 2008 (id. 91-103).

After filing a timely request for

hearing, on November 4, 2009 Miller appeared before ALJ Harmon
for that purpose (id. 26).
Testifying at the November 4 hearing (“Hearing”) were
Miller, medical expert Dr. Bernard Stevens and vocational expert
Dr. Richard Hamersma (R. 13).

ALJ Harmon’s February 11, 2010

decision concluded that Miller had become disabled on August 25,
2008, having been capable of performing light work before that
date (id. 13, 17).

Because Miller retained disability insurance

coverage only through December 31, 2007, ALJ Harmon rejected
Miller’s Benefits application (id. 13).
On March 15, 2010 Miller filed a request with the Appeals
Council seeking review of the unfavorable portion of the ALJ’s
decision pertaining to the January 1, 2007 to August 24, 2008
time period. (R. 6).

After reviewing the ALJ’s decision, the

Appeals Council declined to reverse or remand on September 22,

3

Peculiarly, both Miller and Administrative Law Judge
(“ALJ”) Percival Harmon state that both applications list
January 1, 2007 as the onset date (M. Mem. 1; R. 13).
Accordingly this opinion will also ignore the April 2002
reference, treating January 1, 2007 as the earliest claimed date
of disability.
2

2010 (id. 1-5).

On December 20, 2010 Miller filed a complaint

for judicial review.4
Factual Background
Miller was born on August 26, 1953 (and was thus 56 years
old at the time of the ALJ’s decision), stands between 5 feet 7
inches and 5 feet 8 inches tall and weighs approximately 240
pounds (R. 36-38).

After having completed just two years of high

school, he later received his GED (id. 36).

Miller’s previous

work experience includes employment as a storekeeper for United
Airlines, which is ordinarily considered medium work but would be
heavy, semiskilled work based on Miller’s description of his job
duties (id. 38, 76).
Miller has not performed any substantial gainful activity
since January 1, 2007, but as stated earlier he retained
disability insurance coverage through December 31, 2007 (R. 17480, 183).

Miller’s medical complaints have included chronic pain

and numbness (or paresthesia) in his extremities, hypertension,
degenerative joint and disc disease, sciatica, chest pain,
shortness of breath, heart palpitations, obesity, hyperlipidemia,
coronary artery disease, cocaine-induced ischemia, arthritis,
Type II diabetes mellitus, and frequent urination (M. Mem. 2-5).
4

Miller’s complaint is untimely under Section 405(g)
because it was filed more than 60 days after the September 22,
2010 notice of the Appeals Council’s decision. Fortunately for
Miller, Commissioner failed to raise the subject of untimeliness
and therefore waives any objection on that score.
3

On January 2, 2007 Miller was seen at Stroger Hospital
(“Stroger”) for complaints of chronic pain in both legs and hands
that he had experienced on and off for four to five months (R.
305).

There he was noted to have a history of hypertension,

degenerative joint disease of the spine and sciatica, but he did
not present with any leg weakness (id. 306).

He was given

refills of Hydrochlorothiazide, Lovastatin, Gnalafel, aspirin and
Naproxene and discharged (id. 307).
On September 3, 2007 Miller was hospitalized overnight at
Stroger for chest pain, shortness of breath and heart
palpitations (R. 282).

Doctors noted he was obese and

hypertensive and had used cocaine and heroin two days before
(id.).

Miller’s exercise tolerance was not quantitative due to

bilateral leg numbness (id.).

Findings from an EKG showed ST

depression in lateral leads with elevation of cardiac enzymes
(id. 278).

Miller was treated with Nitrodrip, which decreased

his blood pressure and chest pain (id.).

He was discharged with

a primary diagnosis of cocaine-induced ischemia and secondary
diagnoses of hypertension, obesity, hyperlipidemia and substance
abuse (id.).

He was referred for substance abuse counseling and

prescribed Enalapril, Lovastatin, aspirin and Hydrochlorothiazide
(id. 278-79).
On October 26, 2007 Miller was seen at Stroger for a followup appointment.

He then stated he “feels well” but said he was
4

experiencing occasional leg pain rated at 6 on a 1 to 10 pain
scale (R. 290).

On November 14, 2007 Miller also underwent x-

rays of his cervical and lumbar spine at Stroger that showed
moderate multilevel degenerative disc disease in the cervical
spine (most severe at the C4-C5, C5-C6 and C6-C7 vertebrae) and
mild degenerative disc disease of the lumbar spine with vacuum
phenomenon (id. 301-02).
Dr. Rochelle Hawkins performed a 35-minute consultative
examination on December 7, 2007 (R. 271-77).

During that

examination Miller reported numbness and tingling in his hands
that had lasted for some years (id. 271).

Although Miller also

complained of difficulty walking, standing and bending (id.), the
examination showed Miller had full range of motion in his
extremities, spine and all joints, walked with a normal gait and
did not require any device to assist him in walking (id. 272-73).
Straight leg raises were negative bilaterally (id.).

Miller’s

muscle strength was rated at a 5 out of 5 in all limbs, and he
had no difficulty lifting, holding or turning objects with either
hand (id.).
hands (id.).

His gross and fine manipulation was normal in both
Dr. Hawkins’ diagnostic impressions were

paresthesia in the upper and lower extremities, obesity,
hypertension, high cholesterol and smoking (id.).
On December 26, 2007 Dr. Richard Bilinski, a non-examining
state agency physician, reviewed the medical evidence of record

5

and opined that Miller could lift 50 pounds occasionally and 25
pounds frequently, could stand or walk for six hours in an eight
hour workday and could sit for six hours in an eight hour workday
(R. 292-99).

Dr. Bilinski noted that Miller has full range of

motion in his spine and joints, walks with a normal gait and has
no limitations on manipulating objects with his hands (id.).
Dr. M. S. Patil examined Miller on May 7, 2008 (R. 312-15).
She noted Miller had used marijuana, cocaine and heroin for
approximately 20 years and had last used heroin one week before
the examination (id. 312).

Miller complained of mild to moderate

pain in his back and neck, mild numbness and tingling in his
hands, and difficulty walking more than a few blocks, carrying
more than a gallon of milk, tying his shoelaces, climbing stairs
or standing for more than 30 minutes (id.).

He denied any gait

imbalance, and Dr. Patil observed normal gait (id. 312-13).
Miller also denied any bladder dysfunction (id. 312).

Miller’s

range of motion in his joints and spine was normal, there were no
signs of muscle atrophy and grip strength was rated at 5 out of 5
(id. 314).

Miller was able to perform various manipulations with

his hands normally (including tying his shoelaces), and his motor
strength was rated at 5 out of 5 in both upper and lower
extremities (id.).

Dr. Patil further observed that Miller was

able to walk on his heels and toes, get on and off the
examination table without assistance, squat and perform tandem

6

walking (id. 315).

Blood pressure was normal, and there was no

evidence of cardiopulmonary distress, arrhythmia or tachycardia
(id. 313-15).

Dr. Patil’s diagnostic impressions were mild to

moderate osteoarthritis and Class II obesity (i.e. with a BMI of
over 35) (id. 315).
Miller was diagnosed with Type II diabetes mellitus in May
2008 (R. 19, 324).

One year later (in May 2009) Miller’s

diabetic status report revealed that his average blood glucose
level, blood pressure, LDL cholesterol and triglycerides were
within target ranges (id. 323).
than the target (id.).

His HDL cholesterol was lower

On December 8, 2008 Miller had undergone

an echocardiogram test that revealed normal systolic function and
normal size and structure of the ventricles, aorta, mitral valve,
atriums, pulmonic and tricuspid valve, systemic veins and
pulmonary artery (id. 320-21).

Miller’s aortic valve exhibited

mild calcification and mildly increased thickness (id.).
At the November 4, 2009 Hearing Dr. Stevens testified as an
impartial medical expert.

He opined that (1) there was no

medical evidence in the record to support Miller’s claims of hand
numbness or shortness of breath, (2) there was no evidence of leg
weakness in either of Miller’s consultative examinations, (3)
although Miller suffers from degenerative disc disease in his
neck and lumbar spine, no impairment listing (“Listing”)
established by the Social Security Administration (“SSA”) was met

7

or equaled, (4) there was insufficient neurological diagnostic
evidence to diagnose paresthesia, (5) Miller is obese though not
significantly so and (6) Miller could perform medium work based
on Dr. Patil’s 2008 assessment (R. 67-74).
Vocational expert Dr. Hamersma testified that Miller’s past
work was heavy and semi-skilled and that Miller has no skills
that would be transferable to work at a light or sedentary level
(R. 76).

ALJ Harmon propounded a hypothetical question as to an

individual with the same educational background, work history and
age as Miller who could perform only unskilled work, occasionally
lift and carry 50 pounds, frequently lift and carry 25 pounds,
sit, stand or walk for six hours in an eight hour work day and
who was obese but not morbidly so (id. 77).

ALJ Harmon

specifically noted that Miller’s obesity could be an aggravating
factor with regard to pain and that he gave some credibility and
weight to Miller’s claims of pain and possible medication side
effects (id.).

Dr. Hamersma replied that such a person could

work as a hand packager, kitchen helper or general laborer (id.).
Within the Chicago metropolitan area, there are 7,500, 12,000 and
15,000 jobs respectively in those categories (id. 77-78).
ALJ Harmon posed a second hypothetical question in which the
individual could occasionally lift and carry 25 pounds,
frequently lift and carry 10 pounds, could sit for six hours in
an eight hour work day but could stand and walk a total of only

8

four hours and not more than 30 minutes continuously, would
require a 10 minute break after every 15 minutes of activity,
would require a five minute bathroom break every hour and could
perform only unskilled work (R. 78).

Dr. Hamersma responded that

such an individual would be considered disabled at age 55 but not
disabled under age 55 (id.).

He further stated that no jobs

exist at either the light or sedentary levels for an individual
with those restrictions (id. 79).
After reviewing the submitted evidence, ALJ Harmon made
these findings as to Miller:
1.

He retained disability insurance coverage through

December 31, 2007 (R. 15).
2.

He has engaged in no substantial gainful activity

since January 1, 2007, the alleged disability onset date
(id.).
3.

He has the severe impairments of hypertension,

paresthesia in his extremities, degenerative disc disease,
obesity, diabetes mellitus and a history of drug abuse
(id.).
4.

He did not suffer from any impairment or any

combination of impairments that met or medically equaled any
Listing before August 25, 2008 (id. 17).
5.

He was capable of performing light work before

August 25, 2008 (the day before his 55th birthday) but

9

became disabled upon turning 55 (id.).
6.

His testimony regarding the intensity, persistence

and limiting effects of his symptoms was not credible as to
the period before August 25, 2008 but was credible as to the
period thereafter (id. 18-19).
With those determinations having become Commissioner’s final
decision, they are now before this Court for consideration.
Standard of Review and Applicable Law
In reviewing that final decision, this Court considers its
legal conclusions de novo (Haynes v. Barnhart, 416 F.3d 621, 626
(7th Cir. 2005)).

But because by contrast factual determinations

receive deferential review, courts may not “reweigh the evidence
or substitute [their] own judgment for that of the ALJ” and will
affirm Commissioner’s decision “if it is supported by substantial
evidence” (id.).

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)(internal quotation marks and citations omitted)).
As cases such as Haynes, 416 F.3d at 626 (internal quotation
marks and citations omitted) teach:
In rendering a decision, the ALJ must build a logical
bridge from the evidence to his conclusion [but] need
not...provide a complete written evaluation of every
piece of testimony and evidence.
Hence “[i]f the Commissioner’s decision lacks adequate discussion
of the issues, it will be remanded” (Villano v. Astrue, 556 F.3d
10

558, 562 (7th Cir. 2009)).

Reversal is also required if the ALJ

has committed a legal error, regardless of how much evidence
supports his or her determination (Binion on behalf of Binion v.
Chater, 108 F.3d 780, 782 (7th Cir. 1997)).
To qualify for benefits a claimant must be “disabled” within
the meaning of the Act (Liskowitz v. Astrue, 559 F.3d 736, 739
(7th Cir. 2009), citing Section 423(a)(1)(E)).

“Disability” is

defined in Section 423(d)(1)(A) as an “inability to engage in any
substantial gainful activity by reason of any 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.”

Claimants

must also demonstrate that the disability arose during the period
when they were insured (Section 423(a)(1)(A) and (c)(1)).
Social Security regulations set forth a sequential,
five-step inquiry that must be conducted to determine whether a
claimant satisfies this definition (Liskowitz, 559 F.3d at 740,
citing Reg. §§404.1520 and 416.920).

Specifically the ALJ must

determine (Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir.
2001), citing Reg. §404.1520):
(1) whether the claimant is currently employed, (2)
whether the claimant has a severe impairment, (3)
whether the claimant's impairment is one that the
Commissioner considers conclusively disabling, (4) if
the claimant does not have a conclusively disabling
impairment, whether she can perform her past relevant
work, and (5) whether the claimant is capable of
performing any work in the national economy.
11

At step five of the analysis, the ALJ may use Medical
Vocational Guidelines to determine whether the claimant’s
exertional limitations prevent him or her from performing any
work (Fast v. Barnhart, 397 F.3d 468, 470 (7th Cir. 2005)).

If,

however, the claimant suffers from both exertional and
nonexertional impairments, the Medical Vocational Guidelines are
not determinative but rather “provide a framework for
consideration” (id. at 471, quoting Reg. Pt. 404, Subpt. P., App.
2 §200.00(e)(2)).
Failure To Discuss a Listing or Its Equivalent
Despite the ALJ’s finding that Miller suffered from the
severe impairment of paresthesia (R. 15), he inexplicably failed
to articulate any reason why that impairment does not meet or
medically equal any Listing, either independently or in
combination with one or more of Miller’s other impairments.
Indeed, the ALJ failed even to mention Miller’s paresthesia in
step three of the Dixon-specified analysis (id. 17).

Because it

would of course be inappropriate for this Court to reach its own
conclusions on the subject in the first instance, the ALJ’s
complete failure to consider the issue requires remand (Villano,
556 F.3d at 562).
It also appears that the ALJ failed to consider whether
Miller had a combination of impairments that met or equaled a
Listing.

Although the ALJ noted the language of Social Security
12

Ruling (“Ruling”) 02-1p that

“a listing is met if there is an

impairment that, in combination with obesity, meets the
requirements of a listing” (R. 17), the opinion is devoid of any
analysis on the point.

Nor does it consider whether any other

combination of Miller’s impairments meets or equals a Listing.
That too requires remand under Villano.
Credibility Finding
Although this opinion might well end on that note, it is
worth discussing as well the ALJ’s errors in determining the
credibility of Miller’s testimony.

In evaluating the credibility

of statements supporting a Social Security application, an ALJ
must comply with Ruling 96-7p, which requires consideration of
not only the objective medical evidence but also (1) the
claimant’s daily activities, (2) the location, duration,
frequency and intensity of symptoms, (3) factors that precipitate
and aggravate symptoms, (4) type, dosage, effectiveness and side
effects of any medications, (5) treatment other than medication
the claimant uses for symptom relief, (6) any other measures the
claimant uses to relieve symptoms and (7) any other factors
concerning the claimants functions limitations due to symptoms.
Ruling 96-7p also requires an articulation of the reasons
behind credibility evaluations, as confirmed by the quotation of
that Ruling in Brindisi on behalf of Brindisi v. Barnhart, 315
F.3d 783, 787 (7th Cir. 2003):

13

The reasons for the credibility finding must be
grounded in the evidence and articulated in the
determination or decision. It is not sufficient to
make a conclusory statement that “the individual’s
allegations have been considered” or that “the
allegations are (or are not) credible.”...The
determination or decision must contain specific reasons
for the finding on credibility, supported by the
evidence in the case record, 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.
But here is all ALJ Harmon said as to Miller’s credibility
(R. 18-19):
After careful consideration of the evidence, I find
that the claimant’s medically determinable 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 prior to August 25,
2008, to the extent they are inconsistent with the
residual functional capacity assessment derived from
weighing the full record herein.... Claimant is
generally credible but only as to a disabling level of
impairments on and after August 25, 2008.
It is of course totally circular to say that Miller’s
statements are not credible because they are inconsistent with
assessment of his residual functional capacity--an assessment
that is itself based on the rejection of Miller’s statements as
to his limitations.

That is exactly the type of “meaningless

boilerplate” that such cases as Parker v. Astrue, 597 F.3d 920,
921-22 (7th Cir. 2010) have criticized and that Ruling 96-7p
prohibits.
Nowhere does the ALJ explain why he found Miller’s

14

statements incredible before August 25, 2008 or how the seven
factors set forth in Ruling 96-7p affected the credibility
determination.

Instead the ALJ merely notes that Dr. Stevens

opined that there was “no basis in the medical records to support
[Miller’s] alleged sensory changes”--presumably Miller’s
paresthesia--and that Miller was capable of medium level work (R.
18).

But the ALJ disagreed with Dr. Stevens on both points

elsewhere in his opinion, finding that Miller did have the severe
impairment of paresthesia and was capable of only light work (id.
15, 17).

Moreover, that statement by Dr. Stevens cannot provide

the requisite support for the ALJ’s conclusion, for an ALJ “may
not discredit a claimant’s testimony about [his] pain and
limitations solely because there is no objective medical evidence
supporting it” (Villano, 556 F.3d at 562).
Equally unexplained is the ALJ’s positive credibility
determination as to Miller’s symptoms after August 25, 2008.
Aside from the diagnosis of Miller’s diabetes in May 2008, no
explanation is given.

That is particularly odd in light of the

ALJ’s earlier statement that “[Miller] doesn’t know of any
symptoms from diabetes” (R. 18).

Failure to comply with Ruling

96-7p, especially in light of established legal precedent
criticizing such cursory treatment of a credibility
determination, requires remand (Zurawski v. Halter, 245 F.3d 881,
888 (7th Cir. 2001)).

15

Conclusion
Due to ALJ Harmon’s complete failure to evaluate whether
Miller’s paresthesia or any combination of his impairments meets
or equals a Listing, the decision is remanded to SSA for further
proceedings.

Upon remand the ALJ should also address the

additional deficiencies discussed in this opinion.5

Accordingly,

this Court denies both Miller’s motion for summary judgment and
Commissioner’s request for affirmance, instead remanding the case
for further proceedings.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

September 27, 2011

5

Although none of Miller’s other complaints about the
decision warrant remand or summary judgment, the ALJ must of
course consider whether any of his prior determinations may call
for reconsideration in light of the deficiencies identified by
this opinion.
16