Lakes v. Astrue
Filing
23
MEMORANDUM Opinion and Order Entered by the Honorable Maria Valdez on 2/19/2013:(gcy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WILLIE LAKES,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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No. 11 C 3592
Magistrate Judge Maria Valdez
MEMORANDUM OPINION AND ORDER
This is an action brought under 42 U.S.C. § 405(g) to review the final decision
of the Commissioner of Social Security denying plaintiff Willie Lakes’s claim for
Social Security Disability and Supplemental Security Income 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, Lakes’s motion for summary
judgment [Doc. No. 14] is granted in part and denied in part. The Court finds that
this matter should be remanded to the Commissioner for further proceedings.
BACKGROUND
I.
PROCEDURAL HISTORY
Lakes originally applied for Social Security Disability and Supplemental
Security Income benefits on April 10, 2003, alleging disability due to depression and
pain since May 3, 2002. (R. 207-09.) The application was denied on June 18, 2003
and upon reconsideration on November 10, 2003. (R. 164-75.) Lakes filed a timely
request for a hearing by an Administrative Law Judge (“ALJ”), which was held on
November 30, 2005. (R. 177, 132-63.) Lakes personally appeared and testified at
the hearing and was represented by counsel. (R. 135.) A vocational expert also
testified at the hearing. (Id.)
On March 31, 2005, the ALJ denied Lakes’s claim for benefits and found him
not disabled under the Social Security Act. (R. 132-63.) After Lakes requested
review of the ALJ’s decision, the Social Security Administration Appeals Council
remanded his claim to give further consideration to the claimant’s maximum
Residual Functional Capacity (“RFC”) on a function-by-function basis; obtain
evidence from a medical expert to clarify the nature and severity of his
impairments; and obtain supplemental evidence from a vocational expert, if
warranted by the expanded record. (R. 126-28.) A second hearing before the same
ALJ occurred on December 2, 2008, and the ALJ again found Lakes not disabled.
(R. 35-82, 1402-83.) The Appeals Council denied Lakes’s request for review of the
second decision on July 22, 2011, (R. 10-14), leaving the ALJ’s decision as the final
decision of the Commissioner and therefore reviewable by the District Court under
42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).
II.
FACTUAL BACKGROUND
A.
Testimony and Medical Evidence
1.
Lakes’s Testimony
At the time of the second ALJ hearing, Lakes had recently turned fifty years
old. (R.1414.) He had been divorced for three or four years and had one biological
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child. (R. 1412.) He completed school through the ninth grade; he began the tenth
grade but did not finish and did not obtain a GED. (R. 1414.) In the past, Lakes had
been employed as a forklift driver, a machine operator, heavy equipment operator,
warehouse worker, school bus driver, and a day laborer. (R. 1417-22.) Lakes had
received worker’s compensation for a period of time following an on-the-job accident,
and at the time of the hearing, he was on public aid. (R. 1413-14.)
Plaintiff stated that he can read and write some, but not well. (R. 1414-15.)
He claimed to suffer from anxiety and depression, as well as headaches and pain in
his back, shoulders, and neck. (R. 1427, 1449-51.) He stated that his ability to read
is negatively affected by the anxiety and depression, which make him unable to
concentrate and focus. (R. 1415.) He was hospitalized in 2004 for a suicide attempt
but had not been admitted since that time. (R. 1427.)
Lakes testified that he cannot sit or stand for long periods of time, and he
cannot bend over, reach, or push or pull anything. (R. 1426.) He cannot lift his left
arm above his head, and the most he can lift is approximately twelve pounds; he
can stand in place three to five minutes at a time, walk one block without stopping
and resting, and sit comfortably for about five or ten minutes. (R. 1439-40, 1447.)
He stated that he has trouble putting on shirts by himself, and he cannot wash his
back or feet without the assistance of his fiancee or sister. (R. 1441, 1447-48.)
Lakes claimed that he had once been an alcoholic and drug addict, but he had
not used any alcohol or hard drugs in eight or nine years prior to the hearing. (R.
1442-43.)
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Plaintiff does not usually sleep through the night, and he had been awake
since 2:30 or 2:45 the morning of the hearing. (R. 1443.) When he cannot sleep, he
will watch television, listen to the radio, or read the Bible or a magazine. (R. 1443,
1445.) He is usually in bed by 8:00 or 8:30 at night. (R. 1443.) He does not prepare
his own meals; his fiancee, sister, or parents cook for him. (R. 1443-44.) He does no
housework but sometimes exercises during the day. (R. 1444.) He can no longer
engage in any hobbies such as bowling, golfing, and going to the movies, but he
remains active in his church. (R. 1444-45.)
2.
Medical Evidence
a.
Treating Physician Reports1
Dr. Odeh
Dr. Odeh, an internal medicine specialist, completed a state welfare form in
July 2003 after examining Lakes twice, in April and July 2003. (R. 455-58.) He
noted that Lakes had back and knee pain which caused moderate limitations in his
ability to stand and sit, as well as marked limitations in his ability to walk, bend,
stoop, turn, push, and pull. (R. 458.) Dr. Odeh also diagnosed Plaintiff with asthma,
hypertension, and depression. (R. 455.)
In another state form completed on January 27, 2004, Dr. Odeh diagnosed
him with schizophrenia, depression, asthma, hypertension, and back and knee pain.
(R. 1124.) Dr. Odeh found that Lakes is significantly restricted in his ability to
Lakes’s medical history is voluminous. The Court has summarized only those reports that
were considered by the parties and/or the ALJ to have particular significance.
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walk, bend, stand, stoop, sit, turn, climb, push, or pull; and mildly restricted in
gross and fine manipulations and dexterity. (R. 1127.) He can lift no more than
twenty pounds, with frequent lifting of up to ten pounds. (Id.) He has marked
limitations in his activities of daily living and concentration, persistence, and pace;
and extreme limitations in social functioning. (Id.)
Dr. Lee
Dr. Lee, a psychiatrist, completed a welfare form on August 4, 2003, after his
second visit with Lakes. (R. 576-77.) He concluded that Plaintiff had moderate
functional limitations in daily and social function and the ability to sustain
concentration, caused by depression and substance dependence. (R. 577.)
Dr. Snyder
On October 7, 2003, Ms. Nora Guini (who has a master’s degree in
psychology) performed a psychological evaluation of Lakes under the supervision of
Dr. Snyder, a psychologist. (R. 517-22.) As part of the evaluation, Lakes was given
the Wechsler Adult Intelligence Scale - III test and obtained a Verbal IQ of 81,
Performance IQ of 70, and a Full Scale IQ of 74. (R. 520.) The evaluation noted that
the scores placed Lakes within the Borderline range of intelligence and rank him at
the fourth percentile. (Id.)
Based upon the results of evaluation, Ms. Guini and Dr. Snyder jointly
submitted a Psychiatric Review Technique Form (“PRTF”) and a mental RFC form.
(R. 523-41.) The PRTF concluded that Lakes’s impairments met Listing 12.04
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(Affective Disorders) and equaled Listings 12.08 (Personality Disorders) and 12.09
(Substance Addition Disorders). (R. 523.)
In the RFC, Dr. Snyder found that Lakes had marked limitations in his
ability to understand, remember, and carry out detailed or complex tasks or
instructions; his ability to interact with co-workers or supervisors; and in his ability
to sustain concentration and attention for complex tasks; and had moderate
limitations in his ability to interact with the general public; to adapt to changes; or
to sustain attention and concentration even for simple or repetitive tasks. (R. 53536.)
Dr. Doshi
Dr. Doshi was one of Lakes’s treating psychiatrists at Loretto Hospital. He
was the attending physician at the time Lakes was admitted to the hospital in
January 2004 for severe depressive disorder with suicidal ideation. (R. 698-99.)
Lakes was discharged in improved condition after several days, and he continued
treatment with Dr. Doshi thereafter at Loretto’s outpatient mental health clinic. (R.
699-708.) A November 25, 2005 note states that Lakes was being treated for “severe
and incapacitating depression with marked anxiety.” (R. 689.)
In a March 21, 2007 welfare form, Dr. Doshi opined that Lakes’s mental
impairments markedly limited his activities of daily living, social functioning, and
concentration, persistence and pace. (R. 1005.) Dr. Doshi noted that Plaintiff had
one episode of decompensation of extended duration during the preceding year. (Id.)
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Dr. Husain
Dr. Husain, Lakes’s primary care physician, began seeing him in February
2004. (R. 954, 923-38.) On November 5, 2005, Dr. Husain concluded that Lakes was
“unable to do any work” as a result of his chronic physical and mental impairments.
(R. 954.) In a November 25, 2008 impairment form, Dr. Husain opined that Plaintiff
can sit, stand, and or walk for less than one hour per work day; sit for no longer
than five minutes at a time; and needs five to ten minute breaks every five to ten
minutes throughout the work day. (R. 1132-33.) Lakes can lift five to ten pounds
occasionally and carry less than five pounds occasionally, and he has marked
limitations in using either upper extremity. (R. 1133.) He could not push, pull,
kneel, bend, or stoop, or work in environments that would expose him to moisture,
fumes, gases, extremes of temperature, dust, or heights. (R. 1136.) Dr. Husain
concluded that Plaintiff’s symptoms would likely increase if he were placed in a
competitive work environment and that he was incapable of even low-stress work
activity. (R. 1134-35.)
A May 29, 2007 note from Dr. Husain opines that Lakes “is totally disabled
without consideration of any past or present drug and/or alcohol use. Drug and/or
alcohol use is not a material cause of this individual’s disability.” (R. 949.)
Dr. Case
Beginning in April 2004, Lakes began regularly seeing Dr. Case, a
rheumatologist. (See generally R. 713-33, 738-56, 872-91.) Dr. Case diagnosed Lakes
with fibromyalgia. (R. 756.) In October 2004, Dr. Case repeated the fibromyalgia
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diagnosis but noted that Lakes was possibly malingering. (R. 750.) Dr. Case did not
complete any welfare or RFC forms.
Dr. Aniemeka
Dr. Aniemeka, a specialist in internal medicine, was asked to complete a
welfare form at the time he first examined Lakes, May 17, 2005. (R. 1120-23.) He
diagnosed Lakes with back pain, asthma, GERD, anxiety/depression, overactive
bladder, and schizophrenia. (R. 1120.) He concluded that Lakes has marked
limitations in every work related area of physical function with the exception of
using his hands for fine or gross manipulation, which is only slightly limited; and
Lakes can lift no more than ten pounds. (R. 1123.) Dr. Aniemeka also found that
Lakes has marked or extreme mental limitations, with marked limitations in his
ability to perform daily activities, extreme limitations in social function, four or
more episodes of decompensation in the preceding year, and marked limitations in
the ability to sustain concentration. (R. 70.)
After a November 28, 2005 visit by Lakes, Dr. Aniemeka completed another
form supplied by Plaintiff’s attorneys. (R. 690-97.) He noted that a June 2005 MRI
showed degenerative disc changes and concluded that Lakes has marked limitations
in his ability to sit, stand, and/or walk during the workday; can never lift more than
five pounds; and is minimally limited in using his hands and arms. (R. 692-94.) He
estimated Plaintiff’s pain level as a nine out of ten. (R. 692.) Dr. Aniemeka
estimated that Lakes would likely be absent from work more than three times per
month due to his impairments. (R. 696.)
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In a March 21, 2007 welfare form, Dr. Aniemeka concluded that Lakes can
lift no more than ten pounds; has moderate limitations in the ability to walk, bend,
stand, stoop, sit, turn, climb, push, pull, take public transportation, or perform daily
activities; and is only slightly limited in the ability to use his hands. (R. 1000.) He
did not discuss whether Plaintiff is limited by any mental impairments. (Id.) On
May 31, 2007, Dr. Aniemeka certified that in his medical opinion, drug and/or
alcohol use was not a material cause of Plaintiff’s disability. (R. 959.)
b.
DDS Consulting Physician Reports
A June 8, 2003 physical RFC report completed by DDS physicians concluded
that Lakes can perform a wide range of work at the light exertional level. They
opined that Lakes can lift, carry, push, and/or pull up to twenty pounds occasionally
and up to ten pounds frequently; he can stand and/or walk for a total of two hours
in a workday; he could sit throughout a normal workday; but he should not climb
ladders, ropes or scaffolds, and should only occasionally balance, stoop, kneel,
crouch, and/or crawl. (R. 447-54.) Lakes was found to have no manipulative, visual,
communicative, or environmental limitations. (R. 450-51.)
A mental RFC was completed by DDS psychologists September 2003. (R. 47679.) This RFC concluded that Lakes was only moderately limited in the ability to
understand, remember, and carry out detailed instructions; the ability to interact
appropriately with the general public; the ability to respond appropriately to
changes in the work setting; and the ability to set realistic goals or make plans
independently of others. (R. 476-77.) The reviewer noted that Lakes is angry and
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frustrated with his plight, but his depression symptoms have diminished somewhat
with treatment. (R. 478.) The same reviewer also noted that Plaintiff’s depressive
syndrome is characterized by psychomotor agitation or retardation, feelings of guilt
or worthlessness, difficulty concentrating or thinking, and hallucinations, delusions,
or paranoid thinking. (R. 483.) He was noted as having mild functional limitations
in the activities of daily living; moderate difficulties in maintaining social
functioning, concentration, persistence, or pace; and one or two episodes of
decompensation, each of extended duration. (R. 490.)
c.
Medical Expert’s Testimony
Dr. William Newman, an orthopedic surgeon, testified at the second hearing
as a medical expert. He described a number of medical reports and tests from
Lakes’s medical file and concluded that the medical evidence did not support a
finding that any of his physical impairments met or equaled a Listing, alone or in
combination. (R. 1456-58.) Dr. Newman opined that Lakes retained the RFC to
perform light work, with a restriction on carrying significant weight above the
shoulder level with his left (non-dominant) arm, and that the RFC was unchanged
since his onset date of 2002. (R. 1459-60.) Dr. Newman testified that he did not
agree with the more restrictive RFC opinions from Lakes’s treating physicians
because he did not believe they were based upon objective findings. (R. 1460.) He
did agree with Plaintiff’s attorney that fibromyalgia pain would not be objectively
demonstrated by an x-ray or MRI. (R. 1463-64.)
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3.
Vocational Expert’s Testimony
Edward Pagella testified at the second hearing as a vocational expert (“VE”).
The ALJ asked the VE to identify occupations that could be performed by a
hypothetical claimant, aged 43-50 years of age, with a tenth-grade education, past
relevant work consistent with that of Plaintiff, with the RFC to perform the full
range of light work with the following limitations: no climbing and working on
unstable surfaces; no repetitive pushing or pulling with the non-dominant upper
extremity; no extremes of respiratory irritants, unprotected heights, or unguarded
hazardous equipment. (R. 1470-71.) The VE responded that the person would not be
capable of performing his past relevant work or using any transferable skills, but he
could perform a number of jobs at the light level of exertion, including assembler
(5,800 positions in the Chicago metropolitan area), hand packer (3,600 positions), or
hand sorter (1,800 positions). (R. 1471-73.) Including additional restrictions on
climbing ramps or stairs, with only occasional stooping, crouching, or crawling did
not change his answer. (R. 1472.) At the sedentary level, there would be 3,400 hand
assembler positions; 2,200 hand packer positions; and 940 hand sorter positions
available. (Id.) If the person were frequently distracted by pain, fatigue, or any
other distraction, there would be no work available in the local economy. (R. 147475.)
While being questioned by Plaintiff’s attorney, the VE stated that there
would be no jobs available at the light or sedentary level if the person had the
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additional restrictions of only occasional reaching with the non-dominant hand in
all directions and shifting from sitting to standing throughout the day. (R. 1475-76.)
B.
ALJ Decision
The ALJ determined that Lakes met the insured status requirements of the
Social Security Act through December 31, 2007 and at step 1, she found that Lakes
had not engaged in disqualifying substantial gainful activity since his August 1,
2002 onset date. (R. 41.) At step 2, the ALJ found that Lakes suffered from severe
impairments of back and shoulder pain, fibromyalgia, and depression and/or
anxiety. (Id.) The ALJ found at step 3 that none of Plaintiff’s physical or mental
impairments, alone or in combination, met or medically equaled a Listing. (R. 4247.) The ALJ concluded that Lakes retained the physical RFC to perform a wide
range of light and sedentary work, subject to the following limitations: lifting,
carrying, pushing and/or pulling up to twenty pounds occasionally and up to ten
pounds frequently; never climbing ladders, ropes, or scaffolds or working on moving
or unstable surfaces; and never working around unprotected heights; only
occasionally climbing ramps or stairs, stooping, kneeling, crouching, or crawling;
avoiding constant repetitive overhead reaching or lifting with the left arm; and
avoiding exposure to extremes of temperature, humidity, or concentrated
respiratory irritants. (R. 47.) At step 5, the ALJ found that there are significant
numbers of jobs in the national economy that Lakes can perform, and thus he is not
under a disability as defined in the Social Security Act. (R. 80-82.)
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III.
DISCUSSION
A.
ALJ Legal Standard
Under the Social Security Act, a person is disabled if he 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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B.
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).
C.
Analysis
Lakes argues that the ALJ erred by: (1) improperly evaluating his credibility;
(2) failing to properly determine whether his impairment met Listings 12.05(C)
and/or 12.04; and (3) discounting the opinions of his treating physicians with regard
to the severity of his impairments.
1.
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.
Schmidt v. Astrue, 496 F.3d 833, 843 (7th Cir. 2007); Powers v. Apfel, 207 F.3d 431,
435 (7th Cir. 2000). 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,
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539-40 (7th Cir. 2003) (quoting Zurawski, 245 F.3d at 887-88). When assessing the
credibility of an individual’s statements about symptoms and their functional
effects, an ALJ must consider all of the evidence in the case record. See SSR 96-7p.2
“This includes . . . the individual’s own statements about the symptoms, any
statements and other information provided by treating or examining physicians or
psychologists . . . and any other relevant evidence in the case record.” Id. at *1. In
instances where the individual attends an administrative proceeding conducted by
the adjudicator, the adjudicator may also consider his or her own observations of
the individual as part of the overall evaluation of the credibility of the individual’s
statements. Id. at *5. Moreover, the absence of objective medical evidence
supporting a claimant’s subjective complaints is only one factor to be considered in
the credibility determination. Scheck v. Barnhart, 357 F.3d 697, 703 (7th Cir. 2004).
The ALJ must also consider: “(1) the claimant’s daily activity; (2) the duration,
frequency, and intensity of pain; (3) the precipitating and aggravating factors; (4)
dosage, effectiveness, and side effects of medication; and (5) functional restrictions.”
Id.
The ALJ concluded that Lakes’s testimony cannot be given credit because
“the objective medical evidence establishes relatively minor anatomical
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).
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abnormalities, out of proportion to claimant’s complaints.”3 (R. 77.) The ALJ noted
that despite his claims that he cannot use his upper body, Lakes has normal muscle
tone and no significant muscle atrophy. (R. 78.)
She further commented that Plaintiff’s descriptions of his physical and
mental limitations have varied; the timing of his treatment visits often coincided
with developments in his disability and/or worker compensation claims; his efforts
to seek treatment increased significantly after the first unfavorable ALJ decision,
including visiting with multiple providers, sometimes on the same day; doctors have
noted that he is quite focused on receiving benefits; and Dr. Case had a concern that
Lakes might be malingering. (R. 77-78.) The ALJ also mentioned that Plaintiff’s
testimony about his substance use, especially at the first hearing, was not credible.
The ALJ acknowledged that Lakes may in fact be unable to remember making some
of the reports involving treatment and evaluation, but he also admitted that
sometimes he did not tell the truth in seeking treatment; according to the ALJ, that
statement alone casts doubt on his credibility. (R. 77-78.)
As for his daily activities, the ALJ found his testimony at the first hearing
incredible, where he stated that he was separated from his wife but needed her
assistance to bathe on a daily basis. (R. 78.) The ALJ also found Lakes’s
explanations for why he left several of his places of employment not to be credible.
The ALJ also described Lakes’s credibility by repeating the boilerplate template that has
been strongly criticized by the Seventh Circuit. See Bjornson v. Astrue, 671 F.3d 640, 645
(7th Cir. 2012).
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(Id.) Finally, the ALJ stated that Lakes’s ability to reside in a family-owned
building as well as his maintaining a long-term relationship with a fiancee
“suggests that he functions better than he described to his doctors or at the second
hearing.” (Id.)
The Court finds that the ALJ’s credibility determination was not sufficiently
reasoned. First, the ALJ did not adequately explain why Lakes’s increased efforts to
seek treatment and obtain medical reports documenting his impairments after the
first hearing is relevant to his credibility. The Appeals Council expressly remanded
the claim after the first unfavorable decision to allow the ALJ to clarify the nature
and severity of Plaintiff’s impairments and to consider their effect on his RFC.
Similarly, it is unclear how a focused, even “obsessive,” desire to obtain benefits
makes a claimant’s disability claim more or less likely to be true.
Second, the ALJ did not fully discuss how Plaintiff’s activities of daily living
are inconsistent with a disability finding. As the Seventh Circuit has held:
We have cautioned the Social Security Administration against placing
undue weight on a claimant’s household activities in assessing the
claimant’s ability to hold a job outside the home. . . . The pressures, the
nature of the work, flexibility in the use of time, and other aspects of
the working environment as well, often differ dramatically between
home and office or factory or other place of paid work.
Mendez v. Barnhart, 439 F.3d 360, 362 (7th Cir. 2006); see also Craft v. Astrue, 539
F.3d 668, 677 (7th Cir. 2008) (“‘[T]he skill level of a position is not necessarily
related to the difficulty an individual will have in meeting the demands of the job.
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A claimant’s [mental] condition may make performance of an unskilled job as
difficult as an objectively more demanding job.’”) (quoting SSR 85-15).
Finally, when concluding that the objective medical evidence did not support
Plaintiff’s claims of pain and impairment, the ALJ did not mention the potentially
limiting effects of fibromyalgia, which, according to Dr. Newman’s testimony, would
not be objectively demonstrated by an x-ray or MRI. And although Dr. Case, Lakes’s
rheumatologist, did not complete an RFC report, the ALJ could have sought one in
order to make a more full and fair record of his impairments. While Plaintiff bears
the burden of proving his disability, “the ALJ in a Social Security hearing has a
duty to develop a full and fair record.” Nelms v. Astrue, 553 F.3d 1093, 1098 (7th
Cir. 2009); see Smith v. Apfel, 231 F.3d 433, 437 (7th Cir. 2000) (“Failure to fulfill
this obligation is good cause to remand for gathering of additional evidence.”).
Moreover, the ALJ did mention Dr. Case’s October 2004 concern about possible
malingering, but she did not expressly note that Dr. Case continued to treat Lakes
for fibromyalgia long after that notation was made.
2.
Step 3 - Listing 12.05(C) and 12.04
a.
Listing 12.05(C)
Listing 12.05 provides that the following criteria must be established for a
finding of mental retardation:
Mental retardation refers to significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially
manifested during the developmental period; i.e., the evidence
demonstrates or supports onset of the impairment before age 22. The
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required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.
....
C.
A valid verbal, performance, or full scale IQ of 60 through 70
and a physical or other mental impairment imposing an
additional and significant work-related limitation of function; Or
D.
A valid verbal, performance, or full scale IQ of 60 through 70,
resulting in at least two of the following:
1.
2.
3.
4.
Marked restriction of activities of daily living; or
Marked difficulties in maintaining social functioning; or
Marked difficulties in maintaining concentration, persistence, or
pace; or
Repeated episodes of decompensation, each of extended
duration.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05.
“[I]n order to meet all the requirements of Listing 12.05(C), a claimant must
satisfy a three-part test: (1) the claimant must have a valid verbal, performance, or
full scale IQ of 60 through 70, (2) the claimant must demonstrate physical or mental
impairments imposing additional and significant work-related limitations of
function, and (3) the claimant must meet the diagnostic description of mental
retardation set out in the capsule.” Witt v. Barnhart, 446 F. Supp. 2d 886, 893-94
(N.D. Ill. 2006).
Lakes argues that the ALJ improperly failed to indicate whether she
considered Listing 12.05(C) despite his performance IQ of 70, in conjunction with
the significant work-related limitations of back and shoulder pain, fibromyalgia,
20
and depression and/or anxiety.4 See Thomas v. Astrue, No. 09 C 7851, 2011 WL
5052049, at *7 (N.D. Ill. Oct. 19, 2011) (“[I]n addition to [a] 70 IQ score, Plaintiff
has presented evidence of severe physical impairments and an onset of mental
illness prior to age 22, together which strongly suggests that he meets the
requirements for Listing 12.05(C).”).
The Commissioner responds that Dr. Snyder found only that Plaintiff’s IQ
was “borderline,” which is a different diagnosis than “mental retardation,” and thus
the report demonstrates that Plaintiff did not meet the Listing. Furthermore, “Ms.
Guini did not opine specifically that Plaintiff’s IQ scores were ‘valid’ as required by
12.05C.” (Def.’s Resp. at 5.) According to the Commissioner, the ALJ was not
required to discuss Listing 12.05 “because the evidence does not suggest that
Plaintiff’s impairments satisfied the listing.” (Id. at 5-6.)
First, “borderline” is a descriptive term for a 70 IQ and not necessarily
dispositive of the issue whether Plaintiff suffers from mental retardation. See
Mendez v. Barnhart, 439 F.3d 360, 361 (7th Cir. 2006) (“[A]n IQ of 70, which figures
prominently in the criteria for disability based on mental retardation, is at the
borderline between retardation and normal, if low, mental ability.”). Second, the
regulations direct an ALJ to “‘include a discussion of whether or not obtained IQ
Lakes argues, and the Commissioner does not dispute, that his significant subaverage
general intellectual functioning must be assumed to have manifested during the
developmental period. He completed school through the ninth grade; he has difficulties with
reading, writing, and math; and there is no evidence of any injury that would have
diminished his IQ after he turned twenty-two. See Guzman v. Bowen, 801 F.2d 273, 275
(7th Cir. 1986).
4
21
scores are considered valid and consistent with the individual’s developmental
history and degree of functional restriction.’” Maggard v. Apfel, 167 F.3d 376, 380
(7th Cir. 1999) (upholding ALJ’s finding of invalidity of IQ test where ALJ discussed
reasons for the finding, including that claimant had not eaten for two days before
the test; had been drinking until two in the morning the day of the test; was not
diagnosed with mental retardation but rather borderline functioning; and another
psychiatric evaluation found no evidence of mental retardation); see Thomas, 2011
WL 5052049, at *6 (noting the ALJ’s detailed analysis of the IQ test in Maggard);
see also Tarbush v. Astrue, No. 09 C 3400, 2010 WL 438155, at *3 (N.D. Ill. Feb. 2,
2010) (finding ALJ inadequately discussed validity of IQ tests where the court
would be required to speculate as to why certain scores were disregarded).
The ALJ in this case noted that the test scores were not expressly described
as valid by the examiner but did not engage in any independent analysis of their
validity as required by the regulations. Moreover, to the extent that the ALJ needed
to confirm the examiner’s belief about the validity of the test, she could have asked
for the information or requested that another test be given. See Winfield v.
Barnhart, 269 F. Supp. 2d 995, 1007 (N.D. Ill. 2003) (finding ALJ’s decision of
invalidity of IQ tests was supported by substantial evidence where “[i]n order to
create a full and fair record of the Claimant’s cognitive functioning, the ALJ ordered
multiple psychological evaluations and heard the testimony of expert witnesses”).
Finally, the Commissioner’s proffered reasons why Listing 12.05(C) was not
met in this case were not given by the ALJ, who did not mention the listing at all.
22
See Thomas, 2011 WL 5052049, at *7 (“In any event, the issue is not whether
Plaintiff meets the requirements of Listing 12.05C, but rather the ALJ’s failure to
discuss the listing in any meaningful way.”). “‘[I]n arguing that the ALJ was not
required to discuss [a Listing] due to the insufficiency of the evidence, the
Commissioner puts the cart before the horse. It is only after reviewing the evidence
that the ALJ could have made an informed determination as to whether the
Listing’s requirements had been met.’” Id. at *7 (citation omitted); see also Tarbush,
2010 WL 438155, at *3 (“From the ALJ’s decision, it is unclear whether he
considered [the additional impairment requirement of Listing 12.05(C)] or chose not
to perform the analysis because he had determined there was no valid IQ score
between 60 and 70. In either case, analysis as to why the requirement is not met is
lacking, amounting to error by the ALJ.”).
The Commissioner’s latter-day speculation as to the reason the ALJ did not
discuss Listing 12.05(C) also violates the Chenery doctrine, “‘which forbids an
agency’s lawyers to defend the agency’s decision on grounds that the agency itself
had not embraced.’” Thomas, 2011 WL 5052049, at *7 (quoting Parker v. Astrue, 597
F.3d 920, 922 (7th Cir. 2010)); see SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943).
“On appeal, the Commissioner may not generate a novel basis for the ALJ’s
determination. To permit meaningful review, the ALJ was obligated to explain
sufficiently what she meant . . . .” Kastner v. Astrue, 697 F.3d 642, 648 (7th Cir.
2012); see Hughes v. Astrue, — F.3d —, No. 12-1873, 2013 WL 1634777, at *3 (7th
23
Cir. Jan. 16, 2013) (noting that the government’s brief “[c]haracteristically, and
sanctionably . . . violates the Chenery doctrine”).
b.
Listing 12.04
Lakes also argues that the ALJ improperly considered the medical evidence
in relation to her analysis of Listing 12.04, which governs affective disorders.
Listing 12.04 provides that the required level of severity is met when the
requirements of both the A and B criteria are met:
A.
Medically documented persistence, either continuous or
intermittent of one of the following:
1.
Depressive syndrome characterized by at least four of the
following:
a.
b.
c.
d.
e.
f.
g.
h.
i.
B.
Anhedonia or pervasive loss of interest in almost
all activities;
Appetite disturbance with change in weight;
Sleep disturbance;
Psychomotor agitation or retardation;
Decreased energy;
Feelings of guilt or worthlessness;
Difficulty thinking or concentrating;
Thoughts of suicide; and
Hallucinations, delusions, or paranoid thinking.
Resulting in at least two of the following:
1.
2.
3.
4.
Marked restriction of activities of daily living;
Marked difficulties in maintaining social functioning;
Marked difficulties in maintaining concentration,
persistence, or pace;
Repeated episodes of decompensation, each of extended
duration.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04.
24
The ALJ agreed that the medical evidence was sufficient to satisfy the A
criteria of the listing. (R. 43.) The ALJ further noted that the reports of Drs. Lee,
Odeh, and Aniemeka, and Dr. Snyder supported a finding that the B criteria were
also met. However, the ALJ rejected their conclusions, stating that the physicians
lacked a significant treating relationship with Lakes when they gave their opinions,
and they did not consider the possible impact of Lakes’s substance abuse on their
conclusions. The ALJ also rejected the opinion of Dr. Doshi, the treating
psychiatrist, because a progress note showed that Lakes had been “stable” since his
2004 psychiatric admission. (R. 45.)
First, Lakes argues that Drs. Lee, Odeh, Aniemeka, and Snyder were not
asked whether his history of drug and alcohol abuse was material to their
conclusions, and the medical sources who gave an opinion on the issue concluded
that his substance use was not material to the finding of disability. The ALJ thus
created a backdoor method of denying Lakes’s claim based on substance use without
analyzing the effects of any substance use under the materiality standards required
by the regulations. See Smith v. Massanari, No. 00 C 7652, 2002 WL 480955, at *8
(N.D. Ill. Mar. 25, 2002) (explaining that an ALJ must articulate his reasons for
finding that drug use is material to a disability finding); see also Kangail v.
Barnhart, 454 F.3d 627, 629 (7th Cir. 2006) (“[T]he fact that substance abuse
aggravated [the claimant’s] mental illness does not prove that the mental illness
itself is not disabling.”).
25
The Commissioner responds that the materiality analysis was not necessary
due to the ALJ’s finding that Lakes had achieved sobriety for an extended time
since 2004. But the ALJ obviously considered Plaintiff’s prior substance use to be
material in relation to the medical reports issued in 2003. Otherwise, one is left to
wonder why the ALJ faulted Lakes’s treating physicians for failing to comment
explicitly on the possible effect any substance use had on his functioning. The Court
agrees with Plaintiff that the ALJ improperly discounted the 2003 reports on the
basis of substance abuse without engaging in the materiality analysis.
Lakes also argues that the ALJ erred in concluding that Dr. Doshi’s
description of him as “stable” is not evidence that the B criteria are not satisfied.
The Court agrees that “stable” does not necessarily mean that none of the criteria
are satisfied, particularly where the psychiatrist is describing a patient who had
been previously admitted to the hospital for psychiatric care. The ALJ’s assumption
that “stable” means that Lakes does not suffer from disabling impairments is also
inconsistent with her statement that “Dr. Doshi . . . opined that claimant suffers
from listing-level mental limitations.” (R. 72.) The ALJ could have requested a
mental RFC evaluation from Dr. Doshi, who was Plaintiff’s longtime psychiatric
treating physician and thus an important source by the ALJ’s own definition.
3.
Treating Physician Rule
Lakes contends that the ALJ’s disregard of the opinions of his treating
physicians in favor of the non-examining physician, Dr. Newman, was improper. A
treating physician’s opinion is to be given “controlling weight if it is ‘well-supported’
26
and ‘not inconsistent with the other substantial evidence’ in the record. . . . An ALJ
must offer ‘good reasons’ for discounting the opinion of a treating physician.” Scott
v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011) (citations omitted). Furthermore, even if
the decision included “sound reasons for refusing to give [the treater’s] assessment
controlling weight, the ALJ still would have been required to determine what value
the assessment did merit.” Id. (explaining that if a treating physician’s opinion is
not given controlling weight, the regulations require consideration of “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”).
In weighing the various opinions in the record, the ALJ first noted correctly
that any opinions purporting to make the ultimate conclusion that Lakes was
disabled or unable to work should not be given controlling weight, as that is an
ultimate issue to be decided by the Commissioner. The ALJ also stated that
opinions about Lakes’s emotional limitations that were given by his treating
internists were given less weight, and she also gave little weight to any opinions
offered after only one or two treatment visits. (R. 71.)
The ALJ stated that she gives the greatest weight to the opinions of
specialists in their area of expertise, rendered after significant treatment
relationship with the claimant, and which are consistent with and supported by
contemporaneous progress notes and diagnostic studies. (R. 72.) She noted that few
27
of the many opinions in the record satisfied those criteria.5 Dr. Case is a
rheumatologist with a lengthy treatment relationship with Lakes, but he declined
to prepare an RFC report. Dr. Husain has a lengthy treatment relationship with
Lakes, but she has often referred him to specialists for treatment outside her areas
of expertise, and her contemporaneous progress notes do not support the extreme
limitations listed in her November 2008 report. In addition, the opinions of Lakes’s
other treating sources were based upon only brief periods of treatment. (R. 71.) The
ALJ thus concluded that she gave the greatest weight to Dr. Newman’s opinion
because he had access to all of Lakes’s medical records. (R. 72.)
First, the ALJ’s statement that Dr. Newman’s opinion would be preferred
because he had access to all of Plaintiff’s records “is so general as to be
unreviewable by this Court and does not alone support a preference for [the
examiner’s] opinions over those of Plaintiff’s treating [physicians].” Tarbush, 2010
WL 438155, at *4.
Second, Dr. Newman expressly admitted that he did not consider the impact
of fibromyalgia or psychiatric impairments in forming an opinion about Lakes’s
limitations. But the ALJ failed to seek additional information on those conditions
The ALJ also stated that Lakes did not accurately disclose his history of alcohol and drug
use to some of his doctors, and those who were aware of his current substance use “did not
discuss the likely effect of sustained sobriety on claimant’s mental RFC when they prepared
physical or mental RFC opinions prior to the first decision.” (R. 71.) This issue was discussed
5
supra.
28
from Drs. Case or Doshi, who were Plaintiff’s long-term treating physicians and
were specialists in their area of expertise.
CONCLUSION
For the foregoing reasons, Lakes’s motion for summary judgment [Doc. No.
14] is granted in part and denied in part. The Court finds that this matter should be
remanded to the Commissioner for further proceedings consistent with this opinion.
SO ORDERED.
ENTERED:
DATE: ___February 19, 2012___
___________________________
HON. MARIA VALDEZ
United States Magistrate Judge
29
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