Andrychowski v. Astrue

Filing 22

MEMORANDUM Opinion and Order. Signed by the Honorable Harry D. Leinenweber on 12/1/2011.(psm, )

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

NATALIE ANN ANDRYCHOWSKI,
Plaintiff,
Case No. 11 C 0574
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,

Hon. Harry D. Leinenweber

Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff Natalie Andrychowski asks this Court to reverse or
remand the Commissioner of Social Security’s conclusion that she is
not disabled. For the reasons that follow, the Court will remand
the matter back to the Social Security Administration for further
consideration.
I.

STATEMENT OF FACTS

Before she had children, Natalie Andrychowski (“Andrychowski”)
worked as a phlebotomist, supervisor, and medical office assistant.
She left work when her daughter was born, and then injured her back
in November 2001 while lifting the baby.
diagnosed and/or treated for:

Since then, she has been

hypothyroidism, fibromyalgia, pain-

related insomnia and associated daytime fatigue, irritable bowel
syndrome, spastic bladder syndrome, lumbar radiculopathy (nerve
malfunction related to multiple herniated discs), degenerative disc

disease, and sacroiliitis (inflammation of the sacroiliac joints,
which connect the lower spine and pelvis).

The last date on which

she was insured for disability (her “DLI”) was December 31, 2006;
thus, the question here is whether she was legally disabled on or
before that date.
The Court summarizes Andrychowski’s treatment history only
briefly.
injury.

She had corrective back surgery following her 2001
However, she reports only incomplete relief, testifying

that she still suffered “lots of tightness, lots of achiness” and
could not function well.

In 2005, she re-herniated the same area

of her lower back and began seeing Dr. Lawrence Wilkin (“Wilkin”),
a neurologist.

She had a second back surgery in August 2005, and

showed some improvement.

Shortly thereafter, though, she began a

course of sacroiliac joint injections to treat her continuing lower
back pain; the injections continued until May 2006.
In his August 2006 and November 2006 reports, Dr. Wilkin
diagnosed Andrychowski with fibromyalgia and most of the other
ailments listed above.

Since his treatment began, Wilkin has

prescribed Plaintiff a variety of medications, including narcotic
painkillers.
Andrychowski filed for Social Security disability benefits on
October 17, 2006 claiming an onset date of November 1, 2001.

On

December 12, Illinois Department of Human Services consultant Dr.
Lynnelle Flores (“Flores”) examined Plaintiff.

She found that

Plaintiff suffered from chronic hip and low back pain (likely due
- 2 -

to

degenerative

disc

hypothyroidism.

disease),

Flores

did

fibromyalgia,

not

discuss

depression,

and

possible

work

any

limitations.
Based

largely

on

Flores’

report,

however,

non-examining

consultant Dr. Charles Kenny (“Kenny”) concluded in January 2007
that Plaintiff could perform light work on or before her DLI.
Plaintiff’s

benefit

reconsideration.

claim

She

was

requested

denied
an

initially

administrative

and

after

hearing

on

May 29, 2007 and received one on January 28, 2009.
In

March

2008,

Dr.

Wilkin

wrote

a

letter

explaining

Plaintiff’s symptoms and opining that due to their severity she had
been disabled from all gainful employment since he first treated
her in 2005.

He noted that she could not sit for more than twenty

to thirty minutes at a stretch (or two total hours per workday),
required a five to ten minute rest break per hour, and would
unpredictably

miss

four

to

six

work

days

per

month.

A

questionnaire accompanying this letter asked the earliest date that
the described symptoms and limitations applied; he filled in
September 9, 2001 (four years before he began treating her and two
months before her self-reported onset date).
On February 6, 2009 Administrative Law Judge John Kraybill
(“ALJ Kraybill” or the “ALJ”) ruled that Andrychowski was not
disabled because she could still perform her prior work as a
medical office assistant if she had the option to sit or stand as
needed.

He discussed evidence from four doctors:
- 3 -

Dr. Wilkin, Dr.

Flores, Dr. Stevens (a non-treating, non-examining medical expert),
and Dr. Chaudhary (who completed an assessment of Plaintiff in
2008).
ALJ Kraybill did not discuss the records of Dr. Kenney; Dr.
Nayak (a rheumatologist who examined Plaintiff in early 2005); Drs.
Montella and Kuesis (orthopedic surgeons who saw her in 2004); Dr.
Stadlan (the neurosurgeon who performed her second back surgery);
Dr. Yourek (a psychiatrist who examined her in 2008); or Dr.
Mangurten (who treated Plaintiff beginning in 2000 but whose
records are largely unintelligible).

The ALJ was familiar with

some of these records, however, as they featured in the hearing
testimony and questioning.
On December 3, 2010 the Appeals Council denied Plaintiff’s
request for review, making the ALJ’s decision the Social Security
Commissioner’s final word.

McKinzey v. Astrue, 641 F.3d 884, 889

(7th Cir. 2011).
II.

LEGAL STANDARD

The ALJ had to determine whether one or more determinable
mental or physical impairments (that can be expected to last for 12
or more months) prevented Plaintiff from engaging in substantial
gainful activity.

To do so, he followed the five-step analysis in

20 C.F.R. § 404.1520(a)(4).

If a claimant is found “not disabled”

at any step, the inquiry ends and the claim is denied.
•

At step one, a claimant is not disabled if she is
currently performing substantial gainful activity.

- 4 -

•

At step two, a claimant is not disabled unless
she has a “severe” medical impairment.

•

At step three, a claimant is disabled if her
impairments meet or equal the listings at 20
C.F.R. Part 404, Subpart P, App. 1. If they
do not, the analysis continues.

•

Before step four, the ALJ determines a
claimant’s
Residual
Functional
Capacity
(“RFC”); that is, what work she can do despite
her limits. 20 C.F.R. § 404.1545(a). At this
stage, the ALJ considers all record evidence
and all of the claimant’s impairments, severe
or not. Id.

•

At step four, a claimant is not disabled if
she has the RFC to perform her past work.

•

At step five, a claimant is not disabled if
she can do any work in the national economy
based on her RFC, age, education, work
experience. See 20 C.F.R. § 404.1512(g).

An

ALJ

must

consider all

relevant

evidence and

may

not

“cherry-pick” only facts that indicate non-disability; however, he
need not discuss every piece of evidence.

Goble v. Astrue, 385

Fed.Appx. 588, 593 (7th Cir. 2010).

That is, the ALJ must “build

an

from

accurate

and

logical

bridge

the

evidence

to

his

conclusion.” McKinzey, 641 F.3d at 889.
A treating physician’s opinion is entitled to controlling
weight “if it is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with
other substantial evidence.”
306 (7th Cir. 2010).

Campbell v. Astrue, 627 F.3d 299,

If an ALJ discounts a treating physician’s

opinion, he must offer good reasons why and specify how much weight
he gives it in light of certain factors. Id. at 306, 308.
- 5 -

Those

factors include “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.”

Id.

at

308.

See

also,

20

C.F.R.

§ 404.1527(d)(2).
On review, an ALJ’s decision controls if it applies the
correct legal standard and is supported by “such relevant evidence
as

a

reasonable

conclusion.”

mind

might

accept

as

adequate

Campbell, 627 F.3d at 306.

to

support

a

The Court critically

reviews the evidence, but does not reweigh it, resolve conflicts,
or substitute its own judgment for the Commissioner’s.
641 F.3d at 889.

Because the Court reviews only a cold record, an

ALJ’s credibility findings receive special deference.
Astrue,

617

McKinzey,

F.3d

923,

929

(7th

Cir.

2010).

boilerplate determinations cannot suffice.
F.3d 704, 709 (7th Cir. 2011).

However,

mere

Punzio v. Astrue, 630

Finally, review is limited to the

ALJ opinion’s stated rationale.
III.

Castile v.

Campbell, 627 F.3d at 306.

DISCUSSION

At step one of his decision, ALJ Kraybill concluded that
Andrychowski did not engage in any substantial gainful activity
between November 1, 2001 and December 31, 2006.
found three severe impairments:

At step two, he

degenerative disc disease of the

lumbar spine, sacroiliitis, and fibromyalgia.

He noted that these

conditions cause “more than minimal limitations” on her ability to

- 6 -

work. He then concluded that her impairments did not meet or equal
a listed impairment, and proceeded to determine her RFC.
The ALJ adopted Dr. Stevens’ RFC, which he claimed took into
consideration

Plaintiff’s

symptoms

insofar

as

they

could

“reasonably be accepted as consistent with the objective medical
evidence and other evidence.”

Thus, the ALJ determined that

Plaintiff could “perform sedentary work as defined in 20 CFR
404.1567(a) with a sit/stand option; occasional climbing of ramps
and

stairs,

balancing,

healing,

crouching,

and

crawling;

no

climbing ladders, ropes or scaffolds; working around dangerous
machinery or unprotected heights for commercial driving.”
To reach that determination, the ALJ purported to follow a
two-step process:
by

medically

first considering whether the impairments shown

acceptable

evidence

could

reasonably

produce

Plaintiff’s reported symptoms, and then determining the symptoms’
persistence, intensity, and limiting effects.

That second inquiry

required him to evaluate the Plaintiff’s credibility.

After

summarizing her testimony, the ALJ concluded that her “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 the symptoms are
not credible to the extent that they are inconsistent with the
above residual functional capacity assessment.”

The ALJ also

discounted the opinion of Plaintiff’s treating physician, Dr.

- 7 -

Wilkin, as inconsistent “with the objective medical evidence, prior
to the [DLI], including his own treatment notes.”
Plaintiff attacks the ruling on two points:

first, that the

ALJ failed to evaluate properly the Plaintiff’s credibility, and
second, that he failed to follow the regulations that govern how
ALJ’s weigh medical opinions.

The Court considers each issue in

turn.
A.

Adverse Credibility Finding

The vocational expert testified that a person with the above
RFC could resume work as a medical assistant.

He also conceded,

however, that if that person either missed work more than two days
per month or had to rest for 30 minutes after 90 minutes of
activity, they would not be employable. Those conditions generally
mirror Plaintiff’s account of her illness on or before December 31,
2006.

(Though she was not working at the time, she testified that

her husband had to stay home from work two to three times per month
because she could not care for their children on “bad days”;
presumably, she would not have gone to work on those days.)
Because the ALJ ultimately adopted Stevens’ RFC, his negative
credibility finding was clearly decisive.
at 890.

See McKinzey, 641 F.3d

Thus, if that finding is insupportable, this Court must

remand this case for further consideration.
The ALJ’s boilerplate credibility finding is troubling because
the RFC is supposed to be based on a credibility determination, not
the other way around; such circular logic precludes meaningful
- 8 -

review.

See Benford v. Astrue, No. 11 C 4, 2011 WL 4396921, at *5

(N.D.Ill. Sept. 20, 2011).

Indeed, several district courts have

rejected this exact language when unaccompanied by a more detailed
discussion of which claims are credible and supported, which are
not, and why.

See, e.g., Wragg v. Astrue, No. 10 CV 0049, 2011 WL

4349497, at *3 (S.D. Ind. Sept. 15, 2011)(rejecting identical
language offered without additional explanation or discussion).
In defending the ALJ’s decision, the Government reiterates his
summary of Plaintiff’s testimony, supplementing it with record
references that the ALJ himself never mentioned.
not

rely

on

particular

Campbell, 627 F.3d at 306.

information,

neither

If the ALJ did

can

this

Court.

However, the Government also seems to

contend that that summary paragraph in fact constitutes the ALJ’s
credibility evaluation.

That the ALJ’s summary downplays the

severity of Plaintiff’s complaints and may be consistent with his
skepticism, but a minimizing tone does not constitute a discussion
of her credibility.
The ALJ’s only sentence which appears to impugn Plaintiff’s
credibility is his parenthetical note that Plaintiff testified that
she could sit for only three to five minutes in 2006 (and still
followed that “guideline”), but sat for roughly 30 minutes before
asking to stand at the hearing.

(Interestingly, sitting for 20 to

30 minutes was entirely consistent with Dr. Wilkin’s assessment.)
However, this Court concludes that such a parenthetical (to which

- 9 -

the

ALJ

did

not

even

refer

in

discrediting

Plaintiff)

is

insufficient to support the boilerplate conclusion.
In defending the ALJ’s perfunctory analysis by likening it to
the section of the opinion laying out the applicable law, the
Government misses the point.
use

stock

language

to

While it is sensible for an ALJ to

explain

the

adjudication

process

and

governing law, the Seventh Circuit is clear that credibility
determinations must be sufficiently individualized and substantive
to allow for effective review.

See Punzio v. Astrue, 630 F.3d 704,

709 (7th Cir. 2011). Accordingly, this Court remands this decision
to the Agency for further consideration, and directs the ALJ to set
forth

a

Plaintiff.

fleshed-out

credibility

determination

specific

to

See Martinez v. Astrue, No. 10 CV 370, 2011 WL 4834252

at *10 (N.D. Ind. Oct. 11, 2011).
B.

Evaluation of Medical Opinions

Plaintiff also challenges the ALJ’s limited discussion of what
weight certain medical opinions received. The Court agrees that on
remand, the ALJ should address these opinions in accordance with
the regulations.
1.

Dr. Flores

As noted above, Dr. Flores examined Plaintiff on behalf of the
Illinois Department of Human Services.

ALJ Kraybill took note of

the

the

exam

and

referred

to

some

of

findings,

including

Plaintiff’s complaints of pain and fatigue and her ability to walk
50 feet, sit, and stand without difficulty.
- 10 -

He did not discuss

Flores’ findings of fibromyalgia, depression, and that Plaintiff’s
chronic hip and back pain was likely due to degenerative disc
disease.
When considering evidence from a state agency physician, an
ALJ must “not ignore these opinions and must explain the weight
given to the opinions in their decisions.”

McKinzey, 641 F.3d at

891 (citing S.S.R. 96–6p; 20 C.F.R. § 404.1527).

The ALJ did not

totally ignore Dr. Flores’ examination, but neglected to explain
what weight, if any, he gave her assessment.

For that reason, on

remand the ALJ is directed to provide the discussion required by 20
C.F.R. § 404.1527(d) with regard to Dr. Flores.
2.

Dr. Stevens

On the subject of medical experts, the ALJ also offered only
the briefest account of why he credited the opinion of nonexamining Dr. Stevens so heavily.

The ALJ stated merely that

Stevens’ opinion was “consistent with the objective evidence that
existed before the [DLI], and he is familiar with a disability
program.”

Given that the ALJ not only afforded Stevens’ views

greater weight than those of any treating or examining doctor, but
adopted them entirely, the ALJ is encouraged on remand to provide
a more thorough discussion of his reasoning to ensure an adequate
record for review.

Cf. 20 C.F.R. §404.1527(f).
3.

Dr. Wilkin

As noted above, and ALJ is to give a treating physician’s
opinion conclusive weight unless he finds that it is insufficiently
- 11 -

supported.

See 20 C.F.R. § 404.1527(d).

If he does not give it

conclusive weight, an ALJ must decide how much weight to give it
based on the following factors:
treatment

relationship,

the

the length and extent of the

frequency

of

examination,

the

physician’s specialty, any tests performed, and the opinion’s
consistency

and

support

in

the

record.

Here,

the

ALJ

gave

“reduced” weight to Dr. Wilkin’s opinion, but did not specify what
that reduction entailed.
The ALJ described Wilkin’s opinion as inconsistent “with the
objective medical evidence, prior to the [DLI], including his own
treatment notes.”

He specifically objected that: (1) Wilkin’s

letter inadequately distinguished Plaintiff’s current condition
from

her

state

on

or

before

her

DLI;

(2)

Wilkin

wrote

on

Plaintiff’s counsel’s questionnaire that she was disabled starting
September 9, 2001 (which predates both their treatment relationship
and

her

self-reported

onset

date);

and

(3)

the

absence

of

fibromyalgia from Wilkin’s October 13, 2005 treatment notes was
inconsistent with his later assessment for Plaintiff’s counsel.
(It is unclear whether the ALJ found the contradiction in the dates
of diagnosis or in the timing of Plaintiff’s reporting symptoms
consistent with fibromyalgia.)
It does appear that the ALJ considered at least some of the
§ 404.1527 factors in weighing Wilkin’s opinion.

The ALJ stated

that Wilkin had treated Plaintiff since 2005, but did not appear to
believe

that

the

18-month

treatment
- 12 -

relationship

prior

to

Plaintiff’s DLI weighed in favor of crediting Wilkin’s opinion.
The ALJ also noted that some of Dr. Wilkin’s tests predated
Plaintiff’s second surgery, but it is not clear how much weight he
gave to this objection.

The ALJ did not address Dr. Wilkin’s

specialty (neurology), or how often he treated Andrychowski (at
least 10 times prior to her DLI).
Although the ALJ hardly undertook an exhaustive discussion of
this checklist of factors, this Court concludes that reasonable
minds could differ as to how much weight Wilkin’s opinion should
have received.

Because the ALJ built at least a shaky bridge from

the evidence to his conclusion, this Court will not remand on these
grounds. Even so, however, it strongly encourages the ALJ to offer
a more precise accounting for the weight he accords Dr. Wilkin’s
opinions.

Furthermore, the ALJ may find it useful to solicit a

more temporally precise opinion from Dr. Wilkin on remand, rather
than simply discrediting his opinion on those grounds.
IV.

CONCLUSION

For the reasons stated herein, the Court remands this matter
to the Social Security Administration for further consideration.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
DATE:12/1/2011
- 13 -