Jackson vs. Astrue

Filing 42

WRITTEN Opinion Signed by the Honorable Sheila Finnegan on 4/11/2013: Plaintiff's Motion for Summary Judgment 23 is granted, Defendant's Motion for Summary Judgment is denied. Pursuant to sentence four of 42 U.S.C. § 405(g), the ALJ's decision is reversed, and this case is remanded to the Social Security Administration for further proceedings consistent with this opinion. Civil Case Terminated. [For further details see written opinion]. Mailed notice. (is, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THOMAS JACKSON,
Plaintiff,
v.
CAROLYN W. COLVIN, 1 Acting
Commissioner of Social Security,
Defendant.

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No. 12 C 1324
Magistrate Judge Finnegan

ORDER
Plaintiff Thomas Jackson seeks to overturn the final decision of the
Commissioner of Social Security (“Commissioner” or “Defendant”) denying his
application for Disability Insurance Benefits (“DIB”) under Title II of the Social
Security Act. 42 U.S.C. §§ 416, 423(d). The parties consented to the jurisdiction
of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and filed
cross-motions for summary judgment. For reasons discussed below, the Court
now grants Plaintiff’s motion, denies the Commissioner’s motion, and remands
the case for further proceedings.
BACKGROUND
Plaintiff was born on August 4, 1957, and has a high school diploma. (R.
115, 794). His past relevant work dates to 1993 and includes customer service

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Ms. Colvin became Acting Commissioner of Social Security on February 14,
2013, and is substituted in as Defendant pursuant to Federal Rule of Civil Procedure
25(d)(1).

manager and driver for an armored truck company.

Most recently, Plaintiff

worked as a stationary engineer for a commercial building, but he quit that job on
March 10, 2006 due to his medical conditions. (R. 135, 797). In that regard,
Plaintiff applied for DIB on March 11, 2008, alleging that he became disabled on
March 10, 2006 due to neck, shoulder and back problems. (R. 115, 134). The
Social Security Administration denied the application initially on June 18, 2008,
and again upon reconsideration on September 11, 2008. (R. 43-44). Plaintiff
filed a timely request for hearing and appeared before Administrative Law Judge
Robert T. Karmgard (the “ALJ”) on May 19, 2009. (R. 791). The ALJ heard
testimony from Plaintiff, who was represented by counsel, as well as from
vocational expert William Newman (the “VE”).
Several months later, on January 29, 2010, the ALJ found that Plaintiff’s
degenerative disease of the cervical spine, asthma, hypertension, sinusitis and
obesity are severe impairments, but that they do not meet or equal any of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 50). After
discussing the medical and testimonial evidence in detail, the ALJ determined
that Plaintiff has the capacity to perform sedentary work with the following
restrictions: he can occasionally lift/carry up to 10 pounds and frequently lift/carry
lighter items such as hand tools; he can occasionally push/pull up to 10 pounds
and frequently push/pull lighter items; he cannot perform overhead work; he can
frequently perform fine manipulative tasks such as fingering/pinching; he can
stand/walk, with normal breaks, for 2 hours in an 8-hour workday, but he cannot
stand or walk for more than one hour continuously; he can sit, with normal
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breaks, for 6 hours a day, but not more than one hour continuously; he cannot
climb ladders, ropes or scaffolds; he can occasionally climb ramps/stairs,
balance, stoop, kneel, crouch and crawl; he must avoid concentrated exposure to
fumes/odors, dusts, gasses and other pulmonary irritants; and he must avoid
exposure to hazards, such as unprotected heights and dangerous, moving
machinery. (R. 51).
Based on this stated residual functional capacity (“RFC”), the ALJ
accepted the VE’s testimony that Plaintiff remains capable of performing his past
work as a customer service manager, as well as some 62,500 customer
complaint clerk jobs available in the regional economy. (R. 25-56). The ALJ thus
concluded that Plaintiff is not disabled within the meaning of the Social Security
Act, and is not entitled to benefits. The Appeals Council denied Plaintiff’s request
for review on October 14, 2011, (R. 3-5), and Plaintiff now seeks judicial review
of the ALJ’s decision, which stands as the final decision of the Commissioner.
DISCUSSION
A.

Standard of Review
Judicial review of the Commissioner’s final decision is authorized by §

405(g) of the Social Security Act. See 42 U.S.C. § 405(g). In reviewing this
decision, the Court may not engage in its own analysis of whether Plaintiff is
severely impaired as defined by the Social Security Regulations.
Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004) (citation omitted).

Young v.
Nor may it

“displace the ALJ’s judgment by reconsidering facts or evidence or making
credibility determinations.” Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010)
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(quoting Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007)). The court’s task
is to determine whether the ALJ’s decision is supported by substantial evidence,
which is “‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” McKinzey v. Astrue, 641 F.3d 884, 889 (7th
Cir. 2011) (quoting Skinner, 478 F.3d at 841).
In making this determination, the court must “look to whether the ALJ built
an ‘accurate and logical bridge’ from the evidence to [his] conclusion that the
claimant is not disabled.” Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009)
(quoting Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008)).

Where the

Commissioner’s decision “‘lacks evidentiary support or is so poorly articulated as
to prevent meaningful review,’ a remand is required.” Hopgood ex rel. L.G. v.
Astrue, 578 F.3d 696, 698 (7th Cir. 2009) (quoting Steele v. Barnhart, 290 F.3d
936, 940 (7th Cir. 2002)).
B.

Five-Step Inquiry
To recover DIB under Title II of the Social Security Act, a claimant must

establish that he is disabled within the meaning of the Act. Crawford v. Astrue,
633 F. Supp. 2d 618, 630 (N.D. Ill. 2009). A person is disabled if he is unable to
perform “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.” 42 U.S.C. § 423(d)(1)(A); Crawford, 633 F. Supp. 2d at 630; Strocchia
v. Astrue, No. 08 C 2017, 2009 WL 2992549, at *14 (N.D. Ill. Sept. 16, 2009). In
determining whether a claimant suffers from a disability, the ALJ conducts a
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standard five-step inquiry: (1) Is the claimant presently unemployed? (2) Is the
claimant’s impairment severe? (3) Does the impairment meet or 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? See 20 C.F.R. §§ 404.1520, 416.920; Clifford v. Apfel,
227 F.3d 863, 868 (7th Cir. 2000).
C.

Analysis
Plaintiff has identified a variety of alleged errors in this case, two of which

support a remand: (1) the ALJ failed to consider Plaintiff’s obesity in determining
his RFC; and (2) the ALJ made a flawed credibility assessment.
1.

Obesity

The Seventh Circuit has made it clear that “[a]n ALJ must factor in obesity
when determining the aggregate impact of an applicant’s impairments.” Arnett v.
Astrue, 676 F.3d 586, 593 (7th Cir. 2012). Here, the ALJ found Plaintiff’s obesity
to be a severe impairment at step two of the analysis, (R. 50), but failed to
indicate whether that impairment has any impact on his ability to work.
Defendant concedes that the ALJ “could have done a better job by explaining the
impact of Plaintiff’s obesity,” but cites Dornseif v. Astrue, No. 12-2408, 2013 WL
150121 (7th Cir. Jan. 15, 2013), for the proposition that the failure to do so was
harmless. (Doc. 35, at 19). The plaintiff in Dornseif “did not mention her obesity
at any juncture of her application process,” and then raised the issue for the first
time in her appeal to the district court. Id. at *2; Dornseif v. Astrue, No. 11 C
4335, 2012 WL 1441770, at *9 (N.D. Ill. Apr. 26, 2012). The Seventh Circuit held
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that the “ALJ’s failure to explicitly consider an applicant’s obesity” in such
circumstances was harmless.

Id.

Given that Plaintiff was diagnosed with

obesity, which the ALJ found to be a severe impairment, Dornseif is wholly
inapposite. There is no question that the ALJ needed to consider the effects of
obesity in determining Plaintiff’s RFC, and he neglected to do so.
Defendant attempts to avoid this result by arguing that the record contains
“only two notations that arguably suggest that Plaintiff’s obesity could [a]ffect [his]
functioning.” (Doc. 35, at 20). The first is a May 24, 2008, Internal Medicine
Consultative Examination report, in which Mahesh Shah, M.D., diagnosed
Plaintiff with a history of cervical disc disease and asthma, and noted that
“[o]besity . . . can make the[se] problems worse.” (R. 444). The second record is
a December 2009 note from treating physician Daniel O’Malley, D.O., stating that
Plaintiff complained of obesity and had symptoms “associated with depression,
joint pains and knee problems.” (Doc. 699). Defendant discounts both records,
noting first that Dr. Shah “was not in a position to document the functional impact
of Plaintiff’s obesity, which he could only briefly observe,” and did not
“affirmatively” conclude that obesity exacerbates Plaintiff’s symptoms. (Doc. 35,
at 20). Defendant also maintains that the symptoms identified by Dr. O’Malley
“do not apparently show up elsewhere in the record with any prevalence.” (Id.).
In Defendant’s view, since neither record indicates that obesity actually has
impacted Plaintiff’s functioning, “no harm or prejudice result[ed] from the ALJ’s
minimal reference to obesity.” (Id.).

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The problem for Defendant is that the ALJ did not mention either piece of
evidence in his decision, or offer any explanation as to why he disregarded these
findings in determining Plaintiff’s RFC. See Phillips v. Astrue, 413 Fed. Appx.
878, 883 (7th Cir. 2010) (“We confine our review to the reasons offered by the
ALJ and will not consider post-hoc rationalizations that the Commissioner
provides to supplement the ALJ’s assessment of the evidence.”). As the Arnett
court observed, “[i]f the ALJ thought that [Plaintiff’s] obesity has not resulted in
limitations on h[is] ability to work, he should have explained how he reached that
conclusion.” 676 F.3d at 593. Indeed, the ALJ’s duty in this regard exists even
where Plaintiff “failed to provide evidence of limitations” relating to his obesity.
Id. The ALJ’s failure to indicate whether and how Plaintiff’s obesity impacts his
ability to function is reversible error. See Martinez v. Astrue, 630 F.3d 693, 698
(7th Cir. 2011) (“The gravest error . . . is the failure to consider the bearing of
Rider’s extreme obesity. The administrative law judge mentioned in passing that
it is a severe impairment but did not consider its significance in relation to Rider’s
knee.”).
Though Defendant admitted that the ALJ’s discussion of this issue was
lacking, the Court scheduled a hearing to allow additional argument.

In

anticipation of that hearing, Defendant asked the Court to consider a new
Seventh Circuit case, Pepper v. Colvin, __ F.3d __, 2013 WL 1338123 (7th Cir.
2013). There, the court reaffirmed the principle that an ALJ’s failure to discuss a
claimant’s functional limitations resulting from obesity may be a harmless error
“when the RFC is based on limitations identified by doctors who specifically
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noted obesity as a contributing factor to the exacerbation of other impairments.”
Id. at *11.
Notably, Defendant has not directed the Court to any specific limitations
that were identified by doctors who considered Plaintiff’s obesity, and which the
ALJ then incorporated into his RFC finding.

The ALJ expressly rejected Dr.

O’Malley’s opinion, finding that his observations were “not consistent with the
overall record, and cannot be given persuasive [authority].”

(R. 54).

With

respect to Dr. Shah, the ALJ did not assign his opinion any specific weight at all,
or indicate how he factored the doctor’s findings into the RFC. The same is true
of the June 10, 2008 RFC completed by Francis Vincent, M.D. Significantly, Dr.
Vincent could not have considered Dr. O’Malley’s December 2009 assessment
that Plaintiff’s obesity has resulted in symptoms “associated with depression,
joint pains and knee problems.” (Doc. 699).
On the record presented, the Court finds that the ALJ failed to properly
evaluate the aggregate effect of Plaintiff’s obesity along with his other
impairments in determining his RFC. The case must therefore be remanded for
further consideration of this issue.
2.

Credibility Assessment

On remand, the ALJ should also revisit his credibility determination. In
assessing a claimant’s credibility, an ALJ must first determine whether the
symptoms are supported by medical evidence. See SSR 96-7p, at 2; Arnold v.
Barnhart, 473 F.3d 816, 822 (7th Cir. 2007). If not, SSR 96-7p requires the ALJ
to consider “the entire case record, including the objective medical evidence, the
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individual’s own statements about symptoms, statements and other information
provided by treating or examining physicians or psychologists and other persons
about the symptoms and how they affect the individual, and other relevant
evidence in the case record.” Id. See also 20 C.F.R. § 404.1529; Carradine v.
Barnhart, 360 F.3d 751, 775 (7th Cir. 2004). Because hearing officers are in the
best position to evaluate a witness’s credibility, their assessment should be
reversed only if “patently wrong.” Castile, 617 F.3d at 929; Elder v. Astrue, 529
F.3d 408, 413-14 (7th Cir. 2008).
After discussing in detail Plaintiff’s testimony and the medical evidence,
the ALJ stated that Plaintiff’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 to the extent they are inconsistent with the above
residual functional capacity assessment.”

(R. 55).

The Seventh Circuit has

repeatedly criticized this template as “unhelpful” and “meaningless boilerplate,”
which “adds nothing” to a credibility analysis. Shauger v. Astrue, 675 F.3d 690,
696 (7th Cir. 2012). This language “implies that ability to work is determined first
and is then used to determine the claimant’s credibility.

That gets things

backwards.” See Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012).
Defendant concedes that “the ALJ could have done a better job of
explaining the basis for his credibility findings,” but argues that “the ALJ’s
discussion of the evidence shows that he considered relevant factors in reaching
the credibility determination.” (Doc. 35, at 17, 18). To be sure, the use of the
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boilerplate template does not alone provide a basis for remand as long as the
ALJ provides a detailed discussion of the plaintiff’s symptoms and testimony, and
the reasons he did not find the plaintiff’s statements fully credible. See, e.g.,
Richison v. Astrue, 462 Fed. App. 622, 625 (7th Cir. 2012) (the boilerplate
language is “inadequate, by itself, to support a credibility finding,” but decision
affirmed where “the ALJ said more.”). Here, however, the ALJ did not give any
reasons, aside from the boilerplate, for finding Plaintiff’s statements less than
fully credible.
This fact distinguishes the case from Pepper, where “[i]mmediately
following the use of boilerplate, the ALJ provided a paragraph discussing [the
plaintiff’s] testimony in conjunction with the RFC statement.” 2013 WL 1338123,
at *14. As part of that discussion, the ALJ acknowledged the plaintiff’s testimony
that she cannot sit/stand for extended periods of time or engage in excessive
bending, and “noted that [the] RFC did not require either.” Id. After reviewing the
testimony and medical evidence, “[t]he ALJ concluded that, taken together, the
amount of daily activities [the plaintiff] performed, the level of exertion necessary
to engage in those types of activities, and the numerous notations in [the
plaintiff’s] medical records regarding her ability to engage in activities of daily
living undermined [the plaintiff’s] credibility when describing her subjective
complaints of pain and disability.” Id. at *15.
Defendant argues that as in Pepper, the ALJ in this case discussed all of
the relevant testimonial and medical evidence, which suffices to allow the Court
to trace his reasoning as to Plaintiff’s credibility. The Court disagrees. The ALJ
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provided no explanation whatsoever as to which portions of Plaintiff’s testimony
he found not credible, even in a broad or general sense.

He drew no

connections between that testimony, the medical evidence and the RFC, and the
decision is not “sufficiently specific to make clear to [Plaintiff] and to any
subsequent reviewers the weight the ALJ gave to [Plaintiff’s] statements and the
reasons for that weight.” Sopear Chan Som v. Astrue, No. 10 C 1808, 2012 WL
1409509, at *15 (N.D. Ill. Apr. 19, 2012).
Given that the ALJ’s credibility determination consists entirely of the
“hackneyed” boilerplate language, that determination is not supported by
substantial evidence and must be reversed. Shauger, 675 F.3d at 696.
CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Summary Judgment
(Doc. 23) is granted, and Defendant’s Motion for Summary Judgment is denied.
Pursuant to sentence four of 42 U.S.C. § 405(g), the ALJ’s decision is reversed,
and this case is remanded to the Social Security Administration for further
proceedings consistent with this opinion.
ENTER:

Dated: April 11, 2013

_____________________________
SHEILA FINNEGAN
United States Magistrate Judge

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