Pulliam v. Astrue
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey T. Gilbert on 11/25/2013. Mailed notice(tlp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LAMON PULLIAM,
Plaintiff-Claimant,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant-Respondent.
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No. 11 C 8463
Jeffrey T. Gilbert
Magistrate Judge
MEMORANDUM OPINION AND ORDER
Claimant Lamon Pulliam (“Claimant”) brings this action under 42 U.S.C.§ 405(g)
seeking reversal or remand of the decision of Respondent Carolyn W. Colvin, Acting
Commissioner of Social Security (“Commissioner”), denying his applications for disability
insurance benefits and supplemental security income.1 Claimant argues that the decision of the
Administrative Law Judge (“ALJ”) denying his applications for disability insurance benefits and
supplemental security income should be reversed or, alternatively, should be vacated and
remanded to the Social Security Administration (“SSA”) for further proceedings. In support of
his motion for summary judgment, Claimant raises the following issues: (1) whether the ALJ
properly evaluated Claimant’s credibility; (2) whether the ALJ improperly relied on the opinion
of the State Agency Physician; and (3) whether the ALJ sufficiently considered Claimant’s
limitations when making his residual functional capacity (“RFC”) determination.
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On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of Social Security.
Pursuant to Rule 25 of the Federal Rules of Civil Procedure, Carolyn W. Colvin is automatically
substituted as the Defendant-Respondent in the case. No further action is necessary to continue this suit
by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
For the reasons discussed herein, Claimant’s motion for summary judgment is granted
[Dkt.#18], and the Commissioner’s cross-motion is denied [Dkt.#23]. This matter is remanded
to the SSA for further proceedings consistent with this Memorandum Opinion and Order.
I. BACKGROUND
A.
Procedural History
Claimant filed applications for disability insurance benefits and supplemental security
income on January 29, 2008, alleging a disability onset date beginning March 1, 2005. R.223-29.
The SSA initially denied the applications on July 16, 2007 and, upon reconsideration, on
December 17, 2007. R.80-83. Claimant requested a hearing and appeared with his attorney and
testified at a hearing before ALJ John Mondi on September 17, 2009. R.25-52. The ALJ issued a
written decision denying benefits on January 12, 2010. R.85-93.
Claimant requested review by the Appeals Council, which remanded the matter on
September 19, 2010 to the ALJ for further consideration. R.98-101. The ALJ held a second
hearing on April 12, 2011, in which Claimant amended his application for benefits, seeking a
closed period of disability from July 19, 2004 through December 31, 2008. R.57. The ALJ
issued another decision denying benefits on May 25, 2011. R. 13-28.
Claimant again requested review by the Appeals Council but review was denied on
September 28, 2011, making the ALJ’s determination the final decision of the Commissioner.
R.1-6. Claimant seeks review in this Court pursuant to 42 U.S.C.§ 405(g).
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B.
Hearing Testimony
1. Claimant Lamon Pulliam
At the time of the second hearing in 2011, Claimant was 34 years old. R.58. He is single
and has four children. R.37, 58. Claimant attended high school and has past relevant work as a
laborer, forklift driver, an order picker, and a self-employed contractor. R.37, 56. Claimant
testified that he was involved in a motorcycle accident in 1998 in which he broke his left tibia
and required the implantation of a rod and screws to hold the bone in place.R.40.
Claimant testified that he was a self-employed contractor from 2002 until January 2007.
R.38. Claimant testified that he did the paper work and hired someone to install cable wire but
that he didn’t make much money. R.38-39. Claimant testified that he had to stop working
because the implants became infected and caused Claimant pain and swelling that limited his
ability to bear weight on his left leg or stand and walk for an extended period of time. R.41.
Claimant testified that he underwent multiple surgeries to remove the infected implants and to
treat a bone infection. R.33-35. Claimant was shot in the arm and chest in 2004 and testified
that had problems gripping, holding and picking up objects with his left hand. R.41.
Claimant acknowledged that he worked for a three month period in 2008 and returned to
full time work sometime in 2009. R.58, 59.
C.
Medical Evidence
Claimant submitted some medical evidence but there are significant gaps in treatment in
the medical records submitted by Claimant.
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1. Methodist Medical Center
There are medical records dated September 26 - 27, 2004 from Methodist Medical Center
which document Claimant’s gunshot wound and subsequent treatment. R.341-346. The bullet
was removed (R.346), and x-rays of the elbow showed fractured of the ulna and radius. R.341,
343. Claimant was discharged to his local orthopedic surgeon and physician for follow-up
treatment and care. R.341, 345.
2. Stroger Hospital
There are various medical records from Stroger Hospital dated intermittently from May
31, 2004 through September 13, 2009. Claimant was admitted to the hospital on June 5, 2004,
diagnosed with tibial osteomyelitis and discharged June 10, 2004. R.354. He was discharged
with crutches and instructed to return to the clinic to schedule surgery. R.354.
Claimant was admitted to Stroger Hospital again March 6, 2007 for surgery and
discharged March 15, 2007. R. 393. Claimant was admitted due to an infection in his left tibia as
a result of the pin in his leg. R.393.2
3. Dr. Mahesh Shah M.D.
Dr. Shah is a consulting physician who reviewed the medical records provided by the
Bureau of Disability Determination Services and also examined Claimant. R. 494-498. Dr. Shah
noted in the examination that Claimant had discomfort with his left leg and knee and slight
weakness in the second and third fingers of his left hand.
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There are some additional minimal records from Oak Forest Hospital (R.3780384, 473 493) as
well as Loyola University Medical Center (R.550-559) not specifically discussed herein.
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4. State Agency Physicians
Dr. C.A. Gotway performed a Residual Functional Capacity Assessment and concluded
on July 11, 2011 that Claimant was restricted to light work with some limitations and would be
able to return to work by March 8, 2008 after recovering from his most recent surgery on his leg.
R.502-509.
D.
The ALJ’s Decision
Based on the applications for disability insurance benefits and supplemental security
income filed by Claimant on March 2, 2007, the ALJ concluded that Claimant is not disabled
under sections 216(i), 223(d) and 1614(a)(3)(A) of the Social Security Act. R.24.
At step one, the ALJ found that Claimant had engaged in substantial gainful activity after
the alleged onset of disability and is now seeking disability benefits only for the period from July
19, 2004 until December 31, 2008. R.19. At step two, the ALJ found that Claimant had severe
impairments: left tibia osteomyelitis, which is an infection of the bone, and residuals of a
gunshot wound to the left upper extremity. R.20. At step three, the ALJ concluded that Claimant
did not have an impairment or combination of impairments that for any 12-month period met or
medically equaled any of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20
C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). R.23.
Specifically, the ALJ concluded: “Although the claimant experienced subsequent infection of the
tibia and osteomyelitis that required removal of the hardware in March 2007 and a second
surgery in 2007 to ensure that the bone was clean and healing, he returned to effective
ambulation within 12 months of the subsequent exacerbation.” R.21. The ALJ also concluded
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that the medical evidence revealed that Claimant’s left elbow gunshot wound “was treated
conservatively and healed within 12 months.” R.21.
The ALJ then considered Claimant’s RFC and concluded that Claimant has “the residual
functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and
416.967(b), not requiring concentrated exposure to hazards; climbing ladders,, ropes or
scaffolds; more than occasional balancing, kneeling, stooping, crouching, crawling, climbing of
ramps and stairs, reaching, handling, feeling and fingering with the left hand.” R.21. The ALJ
further concluded that 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 fully credible to the extent
that are inconsistent with the above residual functional capacity assessment when compared
against the objective medical evidence and evaluated using the factors in Social Security ruling
96-7p.” R.22.
At step four, the ALJ concluded that, based on the opinion of the Vocational Expert
(“VE”), Claimant is unable to perform his past relevant work and had a RFC for light work
“which precluded climbing ladders, ropes or scaffolds; more than occasional balancing,
kneeling, stooping, crouching, crawling or climbing ramps and stairs; concentrated exposure to
hazards; and which limited use of the left-hand to no more than occasional reaching, handling,
feeling and fingering.” R.22-23.
At step five, the ALJ concluded, based on the VE’s opinion and considering Claimant’s
age, education, work experience and RFC, that “[d]uring the period at issue, ... jobs existed in
significant numbers in the economy that he could ave performed.” R.23.
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II. LEGAL STANDARD
A.
Standard of Review
A decision by an ALJ becomes the Commissioner’s final decision if the Appeals Council
denies a request for review. Sims v. Apfel, 530 U.S. 103, 106-07 (2000). Under such
circumstances, the district court reviews the decision of the ALJ. Id. Judicial review is limited
to determining whether the decision is supported by substantial evidence in the record and
whether the ALJ applied the correct legal standards in reaching his decision. Nelms v. Astrue,
553 F.3d 1093, 1097 (7th Cir. 2009).
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). A “mere
scintilla” of evidence is not enough. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). Even
when there is adequate evidence in the record to support the decision, however, the findings will
not be upheld if the ALJ does not “build an accurate and logical bridge from the evidence to the
conclusion.” Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008). If the Commissioner’s
decision lacks evidentiary support or adequate discussion of the issues, it cannot stand. Villano
v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009).
The “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). Though the standard of review is
deferential, a reviewing court must “conduct a critical review of the evidence” before affirming
the Commissioner’s decision. Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008). It may
not, however, “displace the ALJ’s judgment by reconsidering facts or evidence, or by making
independent credibility determinations.” Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
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Thus, judicial review is limited to determining whether the ALJ applied the correct legal
standards and whether there is substantial evidence to support the findings. Nelms, 553 F.3d at
1097. The reviewing court may enter a judgment “affirming, modifying, or reversing the
decision of the [Commissioner], with or without remanding the cause for a rehearing.” 42
U.S.C. § 405(g).
B.
Disability Standard
Disability insurance benefits are available to a claimant who can establish she is under a
“disability” as defined in the Social Security Act. Liskowitz v. Astrue, 559 F.3d 736, 739-40 (7th
Cir. 2009). “Disability” means an “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected . . .
to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). An
individual is under a disability if she is unable to do her previous work and cannot, considering
her age, education, and work experience, partake in any gainful employment that exists in the
national economy. 42 U.S.C. § 423(d)(2)(A).
A five-step sequential analysis is utilized in evaluating whether a claimant is disabled.
20 CFR. § 404.1520(a)(4)(i-v). Under this process, the ALJ must inquire, in the following order:
(1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a
severe impairment; (3) whether the claimant’s impairment meets or equals a listed impairment;
(4) whether the claimant can perform past relevant work; and (5) whether the claimant is capable
of performing other work. Id. Once the claimant has proven she cannot continue her past
relevant work due to physical limitations, the ALJ carries the burden to show that other jobs
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exist in the economy that the claimant can perform. Schmidt v. Astrue, 496 F.3d 833, 841 (7th
Cir. 2007).
III. DISCUSSION
Claimant raises the following issues in support of his motion for summary judgment: (1)
whether the ALJ properly evaluated Claimant’s credibility; (2) whether the ALJ improperly
relied on the opinion of the State Agency Physician; and (3) whether the ALJ sufficiently
considered Claimant’s limitations when making his RFC assessment.
A.
The ALJ Did Not Sufficiently Explain His Adverse Credibility Determination
An ALJ is in the best position to determine the credibility of witnesses, and this Court
reviews that determination deferentially. Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008)
(citing Sims v. Barnhart, 442 F.3d 536, 538 (7th Cir. 2006)). The ALJ has the discretion to
discount testimony on the basis of evidence in the record. Johnson v. Barnhart, 449 F.3d 804,
806-807 (7th Cir. 2006). However, the basis for the ALJ’s credibility determination must be
articulated and “sufficiently specific” to make clear to a claimant and subsequent reviewers the
weight given to a claimant’s statements and the reasons for the weight given. SSR 96-7p.
The ALJ held that the “claimant’s statements are not credible to the extent they are
inconsistent with” his RFC assessment. R.21. Such language, however, without more of a
rationale in the record, has been deemed “meaningless boilerplate” and criticized for providing
“no clue” as to the weight the ALJ gave a claimant’s testimony. Martinez et. al. v. Astrue, 630
F.3d 693 (7th Cir. 2011) (rejecting boilerplate credibility determinations); Parker et. al. v.
Astrue, 597 F.3d 920, 922 (7th Cir. 2010) (“It is not only boilerplate; it is meaningless
boilerplate. The statement by a trier of fact that a witness’ testimony is “not entirely credible”
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yields no clue to what weight the trier of fact gave the testimony.”); Mendez v. Barnhart, 439
F.3d 360, 363 (7th Cir. 2006) (indicating that a partially credible determination that the person is
credible, but not to the extent alleged, is an odd finding and unclear in meaning).
The criticisms identified in Parker are particularly true in this case when the ALJ offers
no specific reasons for discounting Claimant’s credibility. Because the ALJ did not explain
specifically what was credible or not credible about Claimant’s testimony regarding his alleged
work activity and subsequent inability to work and the limiting effects of his impairments, the
ALJ’s credibility assessment lacks sufficient explanation. The ALJ’s conclusory assessment of
Claimant’s alleged limitations is not sufficient to build a logical bridge from the evidence to the
ALJ’s conclusions.
It is not clear from the ALJ’s opinion that he ever specifically addressed and analyzed the
factors listed in SSR 96-7p. The ALJ simply stated that the RFC assessment “is supported by
objective medical evidence and expert opinion.” R.22. That is not sufficient. The Court
recognizes that the longitudinal record shows that Claimant pursued medical treatment for his
impairments, worked intermittently and that his limitations resolved as Claimant now is engaged
in substantial gainful activity. The ALJ, however, cannot use an unsuccessful attempt at work to
discredit the severity of a claimant’s symptoms or deduce that a claimant was capable of working
and is not disabled. See 20 C.F.R. § 404.1574(c); Kangail v. Barnhart, 454 F.3d 627, 629-30
(7th Cir. 2006). Claimant’s attempt to work cannot discredit his credibility. This case should be
remanded for the ALJ to consider Claimant’s testimony in light of his symptoms consistent with
the medical records, and the ALJ in making a credibility assessment must consider all of these
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factors and not cherry pick one or two facts that supports his decision and reject or not consider
the facts that militate against a finding of disability.
Thus, for all of these reasons, it is necessary to remand the case to allow the ALJ further
opportunity to explain the basis for his adverse credibility determination and, possibly, to further
develop the record.
B.
The ALJ Improperly Relied On Outdated Opinion Evidence To Support His RFC
Assessment
An ALJ must explain how he reached his conclusions about a claimant’s physical
capabilities. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005). The ALJ must
build an “accurate and logical bridge from the evidence to the conclusion.” Berger, 516 F.3d at
544. The ALJ must identify some record basis to support the RFC finding. Scott v. Astrue, 647
F.3d 734, 740 (7th Cir. 2011). The ALJ relied upon the opinion of the State Agency physician in
formulating his RFC. Claimant argues that the ALJ’s reliance on the State Agency physician’s
opinion was misplaced. The Court agrees.
The State Agency physician opined that Claimant would be able to sit, stand and walk for
six hours in an eight hour work day and otherwise work at the light exertional level based on an
inference that Claimant would have recovered and healed from surgery by March 2008. R.509.
The ALJ held a hearing in this case in April 2011 and relied on the State Agency physician’s
opinion based on a projected recovery date that was outdated by several years. Since so much
time had passed, the ALJ should have ordered another consultative exam to determine if the
projected recovery had indeed occurred as predicted or to assess Claimant’s actual abilities based
on an updated medical record. Smith v. Apfel, 231 F.3d 433, 437-38 (7th Cir. 2000). In Smith,
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the ALJ’s decision was reversed, in part, because the ALJ relied on outdated x-rays as evidence
of the severity of the claimant’s impairment. Id.
Although a claimant has the burden to prove disability, the ALJ has a duty to develop a
full and fair record. Thompson v. Sullivan, 933 F.2d 581, 585 (7th Cir. 1991). Failure to fulfill
this obligation is “good cause” to remand for gathering of additional evidence. Id. at 586. The
Court fails to see how the ALJ properly assessed the extent of Claimant’s limitations, as testified
to by Claimant, without an updated medical assessment of his impairments.
Claimant testified that because of his limitations, he was unable to get out of bed some
days, and records demonstrated that he could not put weight on his left leg and that, at times, he
used crutched or a cane to ambulate. R.42, 48-49, 369, 373, 407, 488, 490. Some medical
records corroborate Claimant’s testimony that when he attempted to return to work and had to
stand all day, he developed osteomyelitis and the drainage in his left leg increased. R. 535. This
is consistent with Claimant’s testimony about his difficulty working at several jobs he identified
at both hearing such as not being able to work at a competitive pace, being let go after his
employer learned of the drainage from his leg, and that he was not able to stand or use tools he
was required to use for his job. R. 37-38, 44-45, 61-63.
Based on Claimant’s testimony and additional medical evidence available at the time of
the hearing, the ALJ should have obtained an updated medical opinion. Remand, therefore, is
the appropriate result in this case. Nothing in this Court’s decision today, however, is intended
to say that the result the ALJ reached here is wrong on the merits. But the Court cannot affirm
the result reached by the ALJ on this record. The ALJ must better explain his conclusions.
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C.
The ALJ Failed To Take Claimant’s Limitations Into Consideration When Making
His RFC Determination
Social Security Ruling 96–8p requires that a determination of a claimant’s RFC must
“include a discussion of why reported symptom-related functional limitations and restrictions
can or cannot reasonably be accepted as consistent with the medical and other evidence.” SSR
96–8p. Claimant also argues that the ALJ’s RFC assessment legally was deficient because the
ALJ failed to consider evidence of Claimant’s limitation in determining that he was able to work
at the light exertional level. The Court agrees.
The ALJ failed to discuss favorable evidence of Claimant’s leg problems such as the
reported pain, swelling, the drainage from his subcutaneous abscesses, and his inability to use his
left leg to ambulate or bear weight. See R.275, 352-353, 364, 367, 379, 430, 433, 556-558.
Claimant testified that he was not able to stand and move quickly enough at a job to stay
competitive, that he experienced pain, swelling and cramps in his leg and was not able to walk a
block. R.37-38, 41, 65, 67. Claimant also testified about limitations with his left hand and that
he had difficulty gripping, holding or picking up objects and that he had no feeling in two fingers
of his left hand. R. 42, 47, 50, 63. The ALJ failed to address these ambulatory, manipulative and
dexterity limitations. See Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004) (“[The ALJ]
must confront the evidence that does not support his conclusion and explain why it was
rejected.”); Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005) (failure to
follow Social Security Ruling 96-8p constitutes reversible error),
The entirety of the ALJ’s RFC analysis and conclusion that Claimant is not disabled is a
notation of two alleged inconsistencies (which are neither specifically identified nor discussed)
and a recitation of the State Agency physician’s outdated opinion with no further discussion of
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the remainder of the medical evidence in the record or Claimant’s testimony. R.22. This is
woefully insufficient, and this case must for remanded for further development of the record and
a more fulsome and comprehensive discussion explaining the ALJ’s conclusions.
Reading between the lines, it is clear that the ALJ did not believe Claimant’s testimony
about his limitations and rejected the notion that Claimant was unable to work for a consecutive
12-month period. However, as discussed herein, the ALJ did not sufficiently explain his
credibility assessment and it is not clear to the Court what specific testimony the ALJ discounted
or rejected. The Court recognizes that upon remand the ALJ may reach the same conclusions.
The Court, however, cannot say on this record that the failure to discuss the medical evidence
after the State Agency physician rendered his opinion or Claimant’s testimony on his alleged
limitations is harmless. Remand, therefore, is appropriate.
IV. CONCLUSION
For the reasons set forth in the Court’s Memorandum Opinion and Order, Claimant’s
motion for summary judgment is granted [Dkt.#18], and the Commissioner’s motion is denied
[Dkt.#23]. This matter is remanded to the Social Security Administration for further proceedings
consistent with this Memorandum Opinion and Order.
It is so ordered.
_____________________________
Jeffrey T. Gilbert
United States Magistrate Judge
Dated: November 25, 2013
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