Dante v. Asture
Filing
25
MEMORANDUM Opinion and Order. Signed by the Honorable Arlander Keys on 8/16/2013. (ac, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THOMAS DANTE,
Plaintiff,
v.
CAROLYN W. COLVIN,
,
Commissioner of
Social Security,
)
)
)
)
)
)
)
)
)
)
)
)
No. 12 C 4381
Magistrate Judge Arlander Keys
Defendant.
MEMORANDUM OPINION AND ORDER
This case is before the Court on Thomas Dante’s motion
for summary judgment.
He seeks judicial review of the final
decision of the Commissioner of Social Security finding him
not disabled and denying his claim for Social Security
Benefits under Title II of the Social Security Act, 42
U.S.C. §§416 and 423.
Mr. Dante raises several issues for review, including:
1) whether the Administrative Law Judge (“ALJ”) erred when
she rejected Dr. Hallman’s opinion that Mr. Dante needed to
elevate his legs to prevent swelling, 2) whether the ALJ
improperly determined that Mr. Dante experienced no side
effects from his medication because of his failure to report
the side effects to his physicians, 3) whether the ALJ
failed to explain the support behind her conclusion that a
one-minute break to stand was an appropriate accommodation,
4) whether the ALJ failed to resolve conflicts in the
evidence presented by the vocational expert, 5) whether the
ALJ erred when she failed to order a consultative
psychiatric examination upon her determination that Mr.
Dante suffered from a severe mental impairment, and 6)
whether the ALJ improperly evaluated Mr. Dante’s
credibility.
For the reasons set forth below, Plaintiff’s
motion for summary judgment is granted, and the
Commissioner’s motion for summary judgment is denied.
BACKGROUND FACTS
PRE-DECISION PROCEDURAL HISTORY
On January 26, 2009, Plaintiff, Thomas Dante, applied
for Disability Insurance Benefits (DIB), and Supplemental
Security Income (SSI), alleging that he became disabled on
June 4, 2007 because of ankle injuries, arthritic knees, and
dyslexia.
In February 2009, his application for SSI was
denied because he and his wife owned $180,000 in resources
by the date of his January 2009 application, exceeding the
$3,000 SSI resource limit.
His application for DIB was soon
after denied on April 30, 2009, because it was determined
that, based on the medical evidence, although he could not
perform his previous job, he had the ability to perform
sedentary work.
On May 18, 2009, Mr. Dante filed a request
2
for reconsideration, which was also denied based on medical
evidence that he could still perform sedentary work.
On August 6, 2009, Mr. Dante filed a request for a
hearing before an Administrative Law Judge (ALJ), which was
conducted on December 13, 2010.
ALJ Roxanne Kelsey issued a
ruling denying benefits on December 23, 2010, finding that
Mr. Dante was not disabled under sections 216 (i) and 223
(d) of the Social Security Act.
POST-DECISION PREOCEDURAL HISTORY
Mr. Dante requested review by the Appeals Council, but
was denied on May 7, 2012.
Thus, the ALJ’s decision became
the final decision of the Commissioner.
Mr. Dante filed a
complaint with this court on May 30, 2012, seeking a review
of the decision.
The parties consented to exercise of
jurisdiction by a magistrate judge on August 14, 2012.
Thereafter, cross-motions for summary judgment were filed.
This Court has jurisdiction pursuant to 42 U.S.C. §405(g).
HEARING TESTIMONY
I. Claimant’s Hearing Testimony
At the December 13, 2010 hearing before the ALJ, Mr.
Dante, who was born on April 4, 1968, appeared and was
represented by counsel.
high school diploma.
Mr. Dante testified that he has a
[R. at 34.]
During high school, he
took regular classes as well as supplemental classes to
3
assist students with learning disabilities.
[R. at 35.]
He
testified that he did not pursue any formal education or
vocational courses after graduating from high school.
[R.
at 36.]
Mr. Dante testified that he had not worked since June
of 2007.
[R. at 36.]
He also testified that he was injured
while at work at Kraft, but that he was able to continue
working for a while after the injury occurred.
Id.
Mr.
Dante testified to seeking medical attention for his injury.
[R. at 37.]
He also testified to having surgery for the
injury, which he stated was very painful and long-lasting.
Id.
Mr. Dante testified that the surgery was to address
problems with his ankle, but that he is also experiencing
problems with his right knee.
Id.
He testified to needing
a full-knee replacement at some point in the future.
[R. at
38.]
After the ALJ noted Mr. Dante’s use of a cane, Mr.
Dante testified that sometimes he requires a cane to walk
around.
[R.
at 38.]
He testified that during inclement
weather he uses a cane to prevent from falling, but that
during warmer weather he usually does not need one.
Id.
Mr. Dante also testified that he was 6’1’’ tall, and weighed
255 pounds.
[R.
at 40.]
4
Mr. Dante testified that he could sit for fifteen
minutes at a time before needing a standing break, as his
ankle and knee start to stiffen.
[R. at 40.]
He also
testified that his Attention Deficit Hyperactivity Disorder
(ADHD) caused him to become jumpy after sitting for fifteen
minutes.
Id.
Mr. Dante testified that, although he took Ritalin as a
child for his ADHD, he was not currently on Ritalin, and
instead wanted to control it without medication because he
feared its side effects, namely having mood swings.
41.]
[R. at
Mr. Dante testified that his ADHD did not interfere
with his job at Kraft, and, in fact, his job was helpful for
dealing with his ADHD.
Id.
He testified that his job with
Kraft entailed performing different tasks throughout the
workday and that he interacted with others, which made him
feel more flexible.
about his ADHD.
Id.
He testified to seeing a doctor
[R. at 43.]
The ALJ questioned him about
whether or not the doctor that evaluated him for his ADHD
was a pediatrician or not.
Id.
Mr. Dante testified that
the doctor treated infants, adolescents, and adults.
Id.
After the ALJ asked why he chose this particular doctor, he
testified that an associate, who had a good experience with
the doctor, referred him.
Id.
5
With regard to his living situation, Mr. Dante
testified that he lives with his wife and his daughter, who
turned fifteen the day of the hearing.
[R. at 44.]
He
testified that he drives, but that it can be problematic at
times due to the loading brace he wears on his right knee,
which irritates him while driving.
drives short distances.
Id.
As a result, he only
Mr. Dante testified that,
after about twenty to twenty-five minutes of driving, his
knee will begin to hurt.
[R. at 45.]
He testified that the
time it takes for his knee to become irritated depends on
the driving conditions, such as stop and go traffic.
Id.
Mr. Dante testified that his medication causes him to
feel drowsy, forcing him to take daily naps.
[R. at 45.]
He also testified that Dr. Hallman increased his dosage
during the winter months because that is when his pain is
worse.
Id.
Mr. Dante testified that he experienced an
increase in drowsiness along with the increase in his
dosage.
Id.
Mr. Dante testified that his typical day begins with
him waking up and having breakfast with his wife; after
breakfast, he performs exercises for his knee and ankle in
order to loosen them up.
[R. at 46.]
He testified that he
and his wife take turns taking their daughter to school; on
his designated days he drops her off, grabs coffee, and then
6
goes to Chicago Ridge Mall to perform his exercise program.
Id.
He testified that Dr. Hallman created his exercise
program, and it consists of walking increments which help
him to maintain mobility and keep his cholesterol level
down.
Id.
He testified that, after performing his exercise
program at the mall, he usually visits the local library.
[R. at 47.]
While at the library, he testified that he
visits with some of the employees and reads.
Id.
Mr. Dante
testified that, upon leaving the library, he returns home,
takes his pain medication, and takes a nap.
Id.
On the
days he transports his daughter, he testified that, after he
picks her up from school, he returns home.
Id.
Mr. Dante testified that he takes pain medication four
times a day; taking a nap afterwards each time.
[R. at 47.]
He also testified that during his naps he must elevate his
knee, in order to make sure he does not suffer from edema
swelling at his ankle.
Id.
He testified that he elevates
his knee three to four times a day for thirty to forty
minutes, using a special pillow that he purchased.
[R. at
48.]
Mr. Dante testified that the only chore he performs is
occasional light dusting around the house.
[R.
at 48.]
testified that he collects antique toys as a hobby.
Id.
He
He
testified that he enjoys reading books on antique toys, his
7
daughter searches eBay for toys for him to purchase, and his
friends bring him items from toy shows.
[R. at 48-49.]
Mr. Dante testified that he was in pain during the
hearing, which he rated as seven and a half to eight out of
ten.
[R. at 49.]
He testified that the pain felt like a
shooting pain in his ankle and a sharp pain in his knee.
[R. at 49-50.]
He testified that he experienced pain every
day, but that his medication did offer some assistance.
at 50.]
[R.
Mr. Dante testified to being able to carry and lift
an item weighing from ten to twenty pounds.
Id.
He
testified that he can sit for fifteen minutes before needing
to stretch, which he stated takes five minutes.
walk distances measuring no more than one block.
Id.
Id.
He can
He
also testified to being able to stand for only fifteen
minutes.
[R. at 51.]
Mr. Dante testified that he struggles with his memory,
often times forgetting things because his mind is racing.
[R. at 51.]
He testified to struggling with memory issues
his entire life, which he believes he inherited from his
mother.
Id.
In addition to ADHD, he testified to having
organization compulsions. [R.
at 53.]
During Mr. Dante’s examination by his counsel, he
testified that he has trouble sleeping through the night;
waking up twice a night because of the pounding pain in his
8
ankle and knee.
[R. at 55.]
The ALJ asked counsel if the
doctor’s recommendation that Mr. Dante elevate his knee and
ankle appeared in the medical record.
Id.
Mr. Dante’s
counsel responded that he did not recall where it appeared
in the record.
[R. at 56.]
Mr. Dante also provided testimony on a finger injury he
sustained when he tripped down the stairs after his knee
began causing him problems.
[R. at 56.]
He also testified
to having difficulties using stairs and lacking the ability
to bend or stoop down.
[R. at 58.]
Mr. Dante testified to
taking Mobic, 15mg an anti-inflammatory, and Tramadol, 15mg,
four times a day.
Id.
II. Vocational Expert’s Hearing Testimony
The ALJ also heard testimony from Lee Knutsen, a
Vocational Expert (“VE”) who reviewed Mr. Dante’s workrecord and heard Mr. Dante’s testimony before the ALJ.
The
VE testified that Mr. Dante’s previous job was heavy and
semi-skilled with a SVP of 3.
[R. at 59.]
The ALJ then
proceeded to pose different hypotheticals to the VE based on
an individual with the same age, education, and vocational
experience as Mr. Dante.
[R. at 60.]
The ALJ asked the VE
whether such an individual could work jobs requiring light
exertion with the following non-exertion limitations: they
cannot climb ladders, rope, or scaffolds; and can
9
occasionally climb ramps, stairs, stoop, kneel, crouch, or
crawl, would still be able to perform Mr. Dante’s previous
job.
Id.
The VE testified that such an individual would
not be able to perform Mr. Dante’s previous job.
Id.
However, the VE testified that this individual could work as
a light, unskilled assembler, adding that there are over
19,000 positions of this type of work in the Chicago area.
[R. at 61.]
The VE testified that this particular
individual could also work as a machine tender and that
there are 15,700 machine tender jobs in the Chicago area.
Id.
The ALJ continued with the first hypothetical, adding
the necessity that the individual would need to be able to
stand and stretch approximately every 15 minutes, for a
period of one minute or less.
[R. at 61.]
The VE testified
that an individual with these limitations would be able to
perform some sedentary jobs, including that of a sedentary
cashier.
[R. at 62.]
The ALJ then asked if an individual,
who can sit for eight hours, stand for five hours, and walk
for four hours, walking occasionally for moderate distances,
with the following limitations: the individual can
occasionally bend, stoop, crawl, or climb stairs, maintain
minimal balance, and the individual cannot squat, crouch, or
kneel, nor operate foot controls with his left foot, would
10
be able to perform Mr. Dante’s previous job.
[R. at 62-63.]
The VE testified that this individual would not be able to
perform Mr. Dante’s previous job, but that he would be able
to perform the light level jobs, which he mentioned
previously.
[R. at 63.]
The last hypothetical posed by the ALJ considered
whether an individual with the previously mentioned
limitations, requiring sedentary work, along with the
following requirements: the ability to perform a variety of
tasks and minimal writing, would be able to perform any job.
[R. at 63.]
The VE testified that this individual could
perform a sedentary job as an order clerk, a sedentary
cashier, or a surveillance system monitor, although these
jobs contain a lot of repetition.
[R. at 64.]
The VE then
testified that there is some variety within the cashier job,
such as interacting with various people and handling
different forms of payment.
[R. at
65.]
The VE testified that he did not think there were any
jobs that would allow a person to be off task for thirty
minutes at a time, twice a day.
[R. at 66.]
If a person
completely lacked the ability to stoop at all, the VE
compared this inflexibility to being in a body cast, and
testified that this individual would also not be employable
in any job.
Id.
11
III. MEDICAL RECORDS
In addition to the testimony of Mr. Dante and the VE,
the ALJ also considered Mr. Dante’s relevant medical records
from his treating doctors.
Knee and Ankle Issues
Dr. Hallman, an orthopedic surgeon, first
evaluated Mr. Dante on March 6, 2003 for problems associated
with his right knee.
[R. at 339.]
Dr. Hallman diagnosed
him with a torn medial meniscus, and changes consistent with
chondromalacia of the right knee.
Id.
Mr. Dante had
arthroscopic surgery and an excision of a synovial cyst at
his right knee on April 28, 2003.
Id.
After the surgery,
he began receiving medical and injection therapy for
arthritis in his right knee.
Id.
Mr. Dante later returned
to work without complications from his knee disorders.
Id.
On April 26, 2004, Plaintiff visited Dr. Hallman for
pain in his feet.
[R.
at 339.]
He was diagnosed with
calcaneal spurs in both of his feet, with the condition
being more severe in his left foot.
Id.
He was provided
with heel pads and an injection for the fasciitis and spur
on his left foot.
Id.
Mr. Dante was also taking Bextra
for inflammatory joint disorders.
Id.
His follow-up
examination on May 4th, 2004 revealed complete improvement
12
of his right foot and about 80% improvement of his left.
Id.
On November 12, 2004, Mr. Dante visited Dr. Hallman for
increasing pain in his right foot and ankle area.
340.]
[R.
at
He was prescribed an anti-inflammatory medication and
the doctor provided him with activity recommendations.
Id.
Mr. Dante allegedly tripped over a pallet at work on
January 26, 2005, causing him to strike the pallet and the
concrete floor with his right knee.
[R.
at 340.]
On
January 27, 2005, he visited Dr. Hallman, who identified
changes suggesting a contusion and a probable hairline
fracture of the right knee.
Id.
analgesics to control the pain.
Dr. Hallman prescribed
Id.
Mr. Dante suffered
articular cartilage loss along the mediofemoral condyle of
the right knee.
Id.
On February 16, 2005, his cast therapy
was discontinued and physical therapy was prescribed.
Id.
On March 3, 2005, during his visit with Dr. Hallman,
Mr. Dante reported that he could no longer perform his
regular work activities.
[R. at 340.]
The exam revealed
changes consistent with resolution of a contusion type
injury to his right knee.
Id.
hardening and physical therapy.
Dr. Hallman prescribed workId.
Mr. Dante’s right knee
disorder healed satisfactorily, and he returned to work on
April 4, 2005.
Id.
13
On May 6, 2005, Mr. Dante returned to Dr. Hallman,
complaining of pain, redness and swelling of his left ankle.
[R. at 340.]
He had been on a weight management program and
he was working out regularly.
Id.
The active ranges of
both ankles were determined regular, but he was diagnosed as
having a possible gout-type disorder and prescribed Indocin.
Id.
When he returned on May 20, 2005, he reported that his
symptoms had improved and he was prescribed orthotic
supports only.
Id.
On June 3, 2005, Mr. Dante visited Dr. Hallman,
complaining that he was experiencing persistent pain in his
left ankle, and that the pain grew worse with walking and
standing activities.
[R. at 341.]
He also reported that he
had stumbled over some pallets while working two weeks prior
to the appointment, and he believed that he had turned or
twisted his ankle.
Id.
small calcaneal spur.
The exam revealed that he had a
Id.
Due to the increased symptoms,
Dr. Hallman felt that additional support for his ankle was
appropriate.
Id.
Mr. Dante was fitted with an elastic
support and an ankle stirrup brace was applied.
Id.
Two weeks after the June 3rd appointment, Mr. Dante
complained of pounding pain in his left ankle and foot area,
despite the fact that he had been on vacation.
[R. at 341.]
He was given injection therapy at a trigger point in his
14
left ankle near the posterior tibialis region.
Id.
He had
a follow-up appointment on July 1, 2005, which revealed that
the injection did help him substantially, and the orthotic
was working, as well.
Id.
On September 29, 2005, Mr. Dante reported to Dr.
Hallman that he had twisted his left ankle again two weeks
before his appointment, and that his left foot and ankle
pained him.
[R. at 341.]
Dr. Hallman felt that he had
post-traumatic synovitis at his left ankle as a result of a
sprain injury, and he advised Mr. Dante to moderate his
activities.
Id.
Mr. Dante was also prescribed a non-
steroid anti-inflammatory drug, Mobic.
Id.
Mobic did not
provide him with much symptom relief, so during his followup appointment he was prescribed a Medrol Dose Pak.
Id.
The Medrol provided him with symptom relief, but the
symptoms returned after the medication was completed.
Id.
On November 18, 2005, Mr. Dante’s exam revealed
swelling at the posteromedial aspect of his left ankle,
though the mobility of his left ankle remained favorable.
[R. at 342.]
He returned to Dr. Hallman on December 12,
2005, and despite rest, orthotic supports, ankle braces,
analgesics, non-steroidal medications, as well as a steroid
anti-inflammatory medication, the symptoms in his left ankle
only improved briefly before they reoccurred.
15
Id.
An MR
scan revealed a tear involving the mid-portion of the
posterior tibial tendon, as well as a tear of the tibial
talar ligament.
Id.
Mr. Dante decided to move forward with
a surgical treatment for his left ankle condition.
Id.
On January 20, 2006, Mr. Dante underwent reconstruction
of the posterior tibialis tendon, using a flexor tendon
transfer, at his left ankle region.
[R.
at 342.]
He was
placed in a non-weight bearing short leg cast for
approximately six weeks, which facilitated favorable wound
healing.
Id.
He then began walking cast therapy, which was
continued for two weeks.
Id.
Soon after, the cast was
discontinued and he was prescribed physical therapy.
Id.
At this time, Mr. Dante was using a cane or a walker for
support, and he was supposed to use orthotic supports with
his shoes.
Id.
As Mr. Dante’s physical therapy progressed, he required
narcotic analgesics for pain control.
[R. at 342.]
He was
advised to take non-steroidal, anti-inflammatory drugs to
control the pain in his left foot and ankle during the
recovery process.
Id.
Additionally, Dr. Hallman provided
Mr. Dante with an acid inhibitor to minimize any potential
stomach disturbances while he was taking the medications.
Id.
16
Five months post-surgical treatment, on June 16, 2006,
Mr. Dante continued with outpatient and home physical
therapy exercises.
[R. at 342.]
He continued using a cane
when walking around outside of his home.
support hose and orthotics regularly.
Id.
Id.
He also used
During his visit
he complained of spasms in his left leg while being active.
Id.
The exam revealed a substantial antalgic gait.
Id.
Mr. Dante did not believe that he was ready to
transition to sedentary work duties at his job, and he
continued with physical therapy.
[R.
at 342.]
From August
16, 2006 through October 30, 2006, Mr. Dante completed a
work-hardening program.
[R.
at 343.]
He then began
gradual progression with work activities.
Id.
Upon his
completion of the work-hardening program, his therapist
believed that he had significantly improved, though he was
still functionally impaired and experienced pain.
Id.
In
the therapist’s discharge summary it was reported that Mr.
Dante’s gait remained altered somewhat and that there were
limitations in his active range of motion in his left ankle.
Id.
He also reported that Mr. Dante’s pain was still a
factor, with him reporting his pain as 4-6 out of 10.
Id.
The discharge summary stated that Mr. Dante had the basic
abilities to return to work, and with determination he
should be able to refine his skills on the job.
17
Id.
During a visit with Dr. Hallman on December 15, 2006,
Mr. Dante requested a note releasing him to full work
duties.
[R.
at 343.]
He continued to use an ankle support
for his left lower extremity, and he still needed a
prescription for the pain medication, Ultram.
Id.
The
range of motion in his left ankle was also diminished.
Id.
During the visit, Mr. Dante received a release for full work
duties, with an 8-hour restriction.
Id.
After returning to full work duties, Mr. Dante
continued to require analgesic and anti-inflammatory
medications.
[R.
at 343.]
He also required the
replacement of a fractured and failed orthotic device.
Id.
He had been progressing in a weight loss program, and by
March of 2007 he had lost 40 pounds.
Id.
It was around
that time that he began to report that, by the end of his
workday, he experienced significant pain in his left foot.
Id.
In spite of his diligent rehab efforts, it was
determined that he could not tolerate the normal demands of
his job.
Id.
evaluation.
Dr. Hallman recommended a functional capacity
Id.
On April 17, 2007, Mr. Dante had a functional capacity
evaluation.
[R. at 343.]
According to the job analysis
profile, his current job fell into the medium-heavy to heavy
18
physical demand level, though his abilities were found to
fall below that level of functional capacity.
Dr. Hallman saw Mr. Dante on June 4, 2007.
344.]
Id.
[R. at
During the appointment, the doctor advised him not to
return to his job at Kraft.
Id.
Dr. Hallman believed his
impairments and limitations were permanent, and suggested
vocational retraining consistent with his functional
capacity evaluation.
Id.
During the December 1, 2010 visit, Dr. Hallman noted
that Mr. Dante continued to have weakness in his left ankle,
and that he had advanced osteoarthritis in his right knee.
[R. at 433.]
On December 13, 2010, Dr. Hallman also noted
that he believed it was medically necessary for Mr. Dante to
elevate his left ankle and right knee at least three times
periodically throughout the day, in order to prevent
swelling.
[R. at 434.]
On April 15, 2009, Mr. Dante had a consultative visit
with Dr. Patil, for the purpose of providing information to
the Bureau of Disability Determination Service.
381.]
[R. at
The X-rays taken of Mr. Dante’s left ankle during
his appointment revealed no evidence of fracture or
dislocation.
[R. at 384.]
Mr. Dante’s ankle motion was
normal, however, the X-ray revealed a small plantar
calcaneal spur.
Id.
Dr. Patil noted that Mr. Dante’s
19
speech was moderately pressured and loud, and that he
demonstrated flight of ideas.
[R. at 382.]
He also
observed that Mr. Dante seemed mildly anxious and that he
provided circumferential answers to his questions.
Id.
ADHD Disorder
On July 6, 2010, Mr. Dante saw Dr. Delach.
254.]
[R. at
Dr. Delach diagnosed him with attention hyperactivity
deficit disorder (ADHD), as well as chronic lateness,
forgetfulness, and difficulty in following directions.
Id.
IV. THE ALJ’S DECISION
The ALJ issued her decision on December 23, 2010,
finding that Mr. Dante had not been under a disability
within the meaning of the Social Security Act from June 4,
2007, through the date of her decision
[R. at 24.]
The ALJ
applied the five-step sequential analysis as required by the
Act, under 20 C.F.R.
404.1520(a).
At step one, the ALJ determined that Mr. Dante had not
engaged in substantial gainful activity since June 4, 2007,
the alleged onset date.
[R. at 16.]
At step two, the ALJ determined that Mr. Dante had the
following severe impairments: residual weakness of his right
ankle following an injury, arthritis in his knee, obesity,
and attention deficit hyperactivity disorder.
20
[R. at 16.]
At step three, the ALJ found that Mr. Dante did not
have an impairment or combination of impairments that met or
medically equaled one of the listed impairments from 20
C.F.R.
Part 404, Subpart P, Appendix 1 (20 C.F.R.
404.1520(d), 404.1525 and 404.1526).
[R. at 16.]
The ALJ
explained that Mr. Dante’s severe impairments, considered
individually or amalgamated, do not meet the requirements of
any listing, because there is no evidence of an inability to
ambulate effectively as defined by the listing, as a result
of these impairments.
[R. at 16-17.]
The ALJ further
explained that Mr. Dante’s mental impairment does not
satisfy either the “paragraph B” criteria nor the “paragraph
C” criteria, meaning it does not meet or medically equal the
criteria of listing 12.02.
[R. at 17.]
At step four, the ALJ concluded that Mr. Dante’s
residual functional capacity would allow him to successfully
adjust to performing sedentary work as defined in 20 C.F.R.
404.1567(a).
[R. at 18.]
The ALJ found that Mr. Dante
required a position in which he would not have to climb
ladders, ropes, or scaffolds; would only have to
occasionally climb ramps or stairs, stoop, kneel, crouch, or
crawl; allow him to stand and stretch approximately every 15
minutes for a period of 1 minute or less; provide him with a
21
variety of tasks; and require him to perform no more than
occasional writing.
[R. at 18.]
In making her decision, the ALJ noted that she
considered all of Mr. Dante’s symptoms and the extent to
which these symptoms could reasonably be accepted as
consistent with objective medical evidence and other
evidence, as is required under 20 C.F.R.
96-4p and 96-7p.
[R. at 18.]
404.1529 and SSR’s
Additionally, the ALJ
considered opinion evidence in accordance with the
requirements of 20 C.F.R. 404. 1527 and SSR’s 96-2p, 96-5p,
96-6p and 06-3p.
Id.
The ALJ then summarized Mr. Dante’s
testimony and stated:
After careful consideration of the evidence, I find
that the claimant’s medically determinable impairments
could reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements concerning
the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are
inconsistent with the above residual functional
capacity assessment.
[R. at 19.]
Next, the ALJ summarized all of Mr. Dante’s medical records.
[R. at 19-20.]
The ALJ concluded his review with the
following statement:
In sum, the above residual functional capacity
assessment is supported by the claimant’s treatment
records, which indicate that the claimant experiences
some weakness and limitation of motion due to his
physical impairments; the claimant’s reported
activities; and the opinion of the state agency’s
medical consultants. [R. at 23.]
22
The ALJ concluded by finding that Mr. Dante had the residual
functional capacity to perform less than a full range of
sedentary work.
Id.
At step five, after considering the testimony of the VE
and the results of his residual functional capacity
evaluation, the ALJ found that Mr. Dante was unable to
perform past relevant work, under 20 C.F.R.
at 23.]
404.1565.
[R.
The ALJ then determined that the transferability of
job skills was not material to the determination of
disability, because the use of the Medical-Vocational Rules
(SSR 82-41 and 20 C.F.R.
Part 404, Subpart P, Appendix 2)
supported the conclusion that the claimant is “not
disabled,” despite his transferable job skills.
Id.
Lastly, after reviewing the testimony of the VE, the
ALJ found that, based on Mr. Dante’s age, education, work
experience, and residual functional capacity, he is capable
of making a successful adjustment to work that exists in
significant numbers in the national economy.
[R. at 24.]
Therefore, the ALJ determined a finding of “not disabled”
appropriate under the framework of the above-cited rules,
and that Mr. Dante was not entitled to benefits.
24.]
STANDARD OF DISABILITY ADJUDICATION
23
[R. at
In order to be entitled to benefits under the Social
Security Act, a claimant must be evaluated under a five-step
inquiry and found to be “disabled.”
20 C.F.R. § 404.1520.
Step one requires the ALJ to determine whether the claimant
is employed.
Under step two, the ALJ must determine whether
the claimant has a severe impairment as defined by the
Social Security Administration.
At step three, the ALJ
determines whether the impairment meets or is medically
equal to one of the listed impairments in 20 C.F.R.
Part
404, Subpart P, Appendix 1. During step four, the ALJ
evaluates the claimant’s “Residual Functional Capacity”
(“RFC”) and determines whether he can perform his past
relevant work. Finally, during step five, the ALJ determines
whether the claimant has the ability to perform any other
work that exists in the national economy.
STANDARD OF REVIEW
When addressing an appeal of an ALJ’s decision, a
district court must affirm the decision if it is supported
by substantial evidence and free from legal error.
42
U.S.C. § 405(g); Steele v. Barnhart, 290 F.3d 936, 940 (7th
Cir. 2002).
When determining whether the evidence is
substantial, it must be “more than a mere scintilla.”
Richardson v. Perales, 402 U.S. 389, 401 (1971).
It is
“such relevant evidence as a reasonable mind might accept as
24
adequate to support a conclusion.”
Id.
When reviewing the
ALJ’s decision for substantial evidence, the court cannot
“displace the ALJ’s judgment by reconsidering facts or
evidence or making [a] credibility determination.”
v. Astrue, 478 F.3d 835 (7th Cir. 2007).
Skinner
Should there be
conflicting evidence that leads reasonable minds to differ
in opinion, it is solely the ALJ’s responsibility to
determine whether the claimant is disabled, not the district
court.
Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990).
Even though an ALJ is not required to address every piece of
evidence in the record, she must furnish her analysis
through building a logical and accurate bridge between the
evidence and her conclusions, thus allowing a reviewing
court to conduct a meaningful review of the ultimate
findings of the Social Security Administration.
Sims v.
Barnhart, 309 F.3d 424, 429 (7th Cir. 2002); Dixon v.
Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001).
A court
must affirm the ALJ’s decision if there is substantial
evidence supporting her decision, unless the ALJ does not
articulate the grounds for her decision in such a way that
allows a meaningful review.
Sims, 309 F.3d at 429.
ANALYSIS
Mr. Dante raises several objections to the ALJ’s
decision; the Court will discuss each in turn. The claimant
25
argues that: 1) the Administrative Law Judge erred when she
rejected Dr. Hallman’s medical opinion that Mr. Dante needed
to elevate his legs to prevent ankle and knee swelling, 2)
the ALJ improperly determined that Mr. Dante experienced no
side effects from his medication because of his failure to
report them to his physicians, 3) the ALJ failed to explain
the support behind her conclusion that a one minute break to
stand was an appropriate accommodation, 4) the ALJ failed to
resolve conflicts in the evidence presented by the
vocational expert, 5) the ALJ erred when she failed to order
a consultative psychiatric examination upon determining that
Mr. Dante suffered from a severe mental impairment, and 6)
the ALJ improperly evaluated Mr. Dante’s credibility.
A. WHETHER THE ALJ ERRED WHEN SHE REJECTED DR.
HALLMAN’S MEDICAL OPINION ON MR. DANTE’S NEED TO
ELEVATE HIS LEGS TO PREVENT SWELLING.
Mr. Dante first argues that the ALJ erred by rejecting
his treating physician, Dr. Bruce W. Hallman’s, opinion on
Mr. Dante’s need to elevate his legs.
Pl.’s brief at 7.
Mr. Dante cites several Seventh Circuit cases to support his
argument that ALJs cannot ignore evidence that supports the
existence of a limitation, and that any medical judgments
made by the ALJ must be substantiated by evidence.
brief at 8.
26
Pl.’s
The Commissioner argues that the ALJ reasonably
rejected Dr. Hallman’s opinion because the medical records
made no mention of Mr. Dante’s need to elevate his legs.
Commissioner’s Motion for Summary Judgment, p. 7.
Defendant
asserts that, since no mention of Dr. Hallman’s opinion on
elevation was made in his own treatment notes,
inconsistencies exist without such evidentiary support.
Id.
In order for the ALJ to reach a medical conclusion
which contradicts that of Dr. Hallman’s opinion, she must
use medical evidence, rather than her own opinion, to
support her conclusion.
872 (7th Cir. 2000).
Clifford v. Apfel, 227 F.3d 863,
The medical evidence the ALJ used to
support her conclusion is the absence of Dr. Hallman’s
recommendation anywhere else in Mr. Dante’s medical records,
as well as his most recent medical records, which state that
he presented with no swelling.
[R. at 21.]
Mr. Dante’s medical records contain no recommendation
for him to elevate his legs three times a day, other than
the letter written by Dr. Hallman in December 2010.
brief at 7.
Pl.’s
Although no other physicians recorded this
recommendation in their notes, and even Dr. Hallman failed
to include the recommendation in his treatment notes, the
absence of the statement in the medical records is only
substantial proof of the fact that the recommendation was
27
never recorded.
The only written document regarding Mr.
Dante’s need to elevate his legs is the letter written by
Dr. Hallman, and without medical evidence that contradicts
this finding, the ALJ cannot conclude that this opinion is
incorrect.
Lastly, the ALJ used Mr. Dante’s most recent medical
records, which state that he had no swelling, as further
evidence that the elevation recommendation is unnecessary.
The fact that Mr. Dante presented with no swelling during
this appointment could be attributed to many different
factors.
The ALJ fails to articulate how this incident is
proof of him not needing to elevate his legs, as Dr. Hallman
had advised.
Because Mr. Dante did not experience swelling
during the appointment does not mean that he does not
experience any swelling at all, or further, that elevating
his legs does not mitigate the swelling.
The ALJ failed to provide a bridge from the medical
evidence to her conclusion.
Therefore, the Court cannot
conduct a meaningful review of the ALJ’s finding that the
Plaintiff does not need to elevate his legs.
B. WHETHER THE ALJ IMPROPERLY DETERMINED THAT MR.DANTE
EXPERIENCED NO SIDE EFFECTS FROM HIS MEDICATION BECAUSE
OF HIS FAILURE TO REPORT THEM TO HIS PHYSICIANS.
Although there was no evidence that Mr. Dante reported
any side effects to his physicians, he contends that the ALJ
28
improperly determined that he did not experience drowsiness
as a side effect of his medications.
Pl.’s brief at 9.
The
Commissioner argues that the ALJ rejected Mr. Dante’s
allegation that his pain medication causes drowsiness
because his medical records indicated that he had not
reported this to his physicians, and, conversely, he
actually tolerated his medications quite well.
Commissioner’s Motion for Summary Judgment, p.
4.
An ALJ cannot conclude that a claimant’s medication
produces no side effects based on a claimant’s failure to
report the side effects to their physician.
Terry v.
Astrue, 580 F. 3d 471, 477 (7th Cir. 2009).
Mr. Dante
failed to inform his physicians that his medication was
causing drowsiness.
As a result of his failure to report
the side effect, there is no medical record to substantiate
his allegation.
Although there is no medical record that
Mr. Dante reported any side effects, the medical records do
not prove that he never experienced any side effects, only
that he failed to report them.
The ALJ’s conclusion that
Mr. Dante did not experience drowsiness must be based on
medical evidence that proves he did not, or testimony from
the claimant that contradicts his assertion that he did
experience drowsiness.
The Court finds that the record
contains neither.
29
The ALJ also used the statement from Mr. Dante’s
medical records that he tolerated his medications well, to
support her conclusion.
Judgment, p.
4.
Commissioner’s Motion for Summary
It is reasonable to assume that Mr.
Dante’s physicians were aware that he no longer worked and
spent most of his time at home.
Because Mr. Dante spent
most of his time at home, it is likely that his physicians
did not perceive drowsiness to be a hindrance to his daily
activities.
Based on his situation, it is possible that his
physicians did determine that he tolerated his medication
well, even while he experienced drowsiness.
There is not enough evidence supporting the ALJ’s
determination that Mr. Dante experienced no side effects,
therefore, the Court is unable to provide meaningful review
of this issue.
C. WHETHER THE ALJ FAILED TO EXPLAIN THE SUPPORT
BEHIND HER CONCLUSION THAT A ONE-MINUTE BREAK TO STAND
WAS AN APPROPRIATE ACCOMODATION.
Mr. Dante claims that the ALJ failed to provide an
explanation for her conclusion that he needed only a oneminute or less break to stand.
Pl.’s brief at 10.
Mr.
Dante relies on a Seventh Circuit case, which asserts that
when an ALJ assesses a claimant’s residual functional
capacity (RFC), she must explain how the evidence supports
30
her conclusions.
Briscoe ex rel. Taylor v. Barnhart, 425
F.3d 345, 352 (7th Cir. 2005).
Id.
The Commissioner argues that the ALJ found that there
was minimal objective evidence for his limitation on
sitting, but she accommodated Mr. Dante’s request by
including the recommendation that he needs one minute to
stand after sitting for 15 minutes.
for Summary Judgment, p.
5.
Commissioner’s Motion
The Court agrees.
The ALJ considered Mr. Dante’s request for a one-minute
break to stand during the hearing as an example of the kind
of break he would need after sitting for extended periods of
time during his daily life.
The ALJ determined that Mr.
Dante’s medical record contained enough information to
warrant a one minute standing break and that such a request
was credible.
Therefore, the ALJ’s conclusion that a one-
minute break to stand was an adequate accommodation was
based on Mr. Dante’s credibility, the ALJ’s perception of
him during the hearing, and by the support found in the
medical records.
The Court finds that the ALJ did not err in including
the recommendation that he needs one minute to stand after
sitting for 15 minutes, and that there is enough evidence
supporting the ALJ’s conclusion to substantiate such an
accommodation.
31
D. WHETHER THE ALJ FAILED TO RESOLVE CONFLICTS IN THE
EVIDENCE PRESENTED BY THE VOCATIONAL EXPERT.
Mr. Dante argues that the ALJ failed to resolve
conflicts in the VE’s testimony.
Pl.’s brief at 11.
On the
contrary, the Commissioner argues that the ALJ resolved any
possible conflicts in the VE’s testimony by conducting
further examination and obtaining further explanation.
Commissioner’s Motion for Summary Judgment, p.
5.
During Mr. Dante’s hearing, the following exchange
occurred between the VE and the judge, while the VE
testified:
ALJ: I’m going to go with the hypothetical number two,
that was the sedentary hypothetical with the – and all
of the non-exertionals of the first – second
hypothetical with the following addition: The
individual would need to have a job that enables [them]
to perform a variety of tasks or requires a variety of
tasks, let’s say. And also would require minimal
writing by him. No problems with the reading, but
minimal writing, say no more than occasional to clarify
that a little bit better. Do you need any
clarification on that hypothetical?
VE: No, I don’t –
ALJ: Okay. So such an individual would still be unable
to perform past work, would there be any other work?
VE: Let’s see. I think per the sedentary job, I think
he could still perform as order clerk, the sedentary
cashier, and the surveillance system monitor . . . I
need to note that these are all unskilled jobs.
Simple, unskilled jobs so they’re not known for
variety.
ALJ: Okay.
VE: There’s a lot of repetition involved. I think for
more variety of tasks, you probably would have to go
for some sort of skilled or semi-skilled.
ALJ: But the cashiers and the food and beverage are
still working with different people –
32
VE: There is.
ALJ: Different problem that are going on with different
– making different kinds of change, using different
credit cards, there’s some –
VE: There’s still variety, it’s –ALJ: Right.
VE: It’s a routine, but probably the cashier and the
order clerk – I think I’ll throw out the surveillance
system monitor. I think –
ALJ: Okay.
VE: Maybe – well, maybe a sedentary packer.
ALJ: Okay.
VE: Might – well, I guess all of them. You can leave
the surveillance system monitor in, they’re all going
to have a routine to ‘em, but there are still different
things to do in the job. [R. at 65]
The VE originally testified that all of the sedentary
jobs that were a fit for an individual with Mr. Dante’s RFC,
were unskilled, therefore they were not known for variety.
The ALJ then proceeded to ask the VE a series of questions,
which allowed him to further explain the variety of duties
one would engage in as it pertains to each job.
The ALJ’s line of questioning clarified and resolved
any possible inconsistencies or initial conflicts the VE’s
testimony provided.
Therefore, the Court finds that no
conflict was left unresolved by the vocational expert’s
testimony.
E. WHETHER THE ALJ ERRED WHEN SHE FAILED TO ORDER A
CONSULTATIVE PSYCHTRIATIC EXAMINATION AFTER DETERMINING
THAT MR. DANTE SUFFERED FROM A SEVERE MENTAL
IMPAIRMENT.
Mr. Dante argues that the ALJ erred when she assessed
his mental impairment without a medical opinion.
33
Pl.’s
brief at 14.
Mr. Dante asserts that, although the State
agency physiatrist, who acted on behalf of the
administration, concluded that his ADD and Dyslexia were not
severe, the ALJ erred by not ordering further mental
examination.
Pl.’s brief at 14.
The Commissioner contends that the ALJ relied on the
assessment provided by the state agency reviewer, Dr. Glen
Pittman, Mr. Dante’s work history, and his testimony to
determine that a limitation should be included in his RFC,
for his mental impairments.
Commissioner’s Motion for
Summary Judgment, p. 8.
An ALJ must build a logical bridge from the evidence to
her conclusion.
Cir. 2004).
Young v. Barnhart, 362 F.3d 995, 1002 (7th
When Dr. Pitman concluded that Mr. Dante’s
history of attention-deficit disorder and alleged dyslexia
were non-severe impairments, there was nothing further in
the medical records to suggest that the existence of these
impairments was anything more.
[R. at 22.]
After Mr.
Dante’s consultation with Dr. Pitman, he was diagnosed with
ADHD.
Id.
Upon considering Dr. Pitman’s conclusion, Mr. Dante’s
ADHD diagnosis, his work history, and his testimony, the ALJ
reached the conclusion that his ADHD was indeed a severe
34
impairment.
The ALJ used substantial evidence to reach her
conclusion on the severity of Mr. Dante’s ADHD.
The Court agrees that the ALJ’s analysis leads to a
reasonable conclusion on the diagnoses and inclusion of ADHD
in Mr. Dante’s RFC.
The Court also agrees that this
inclusion does not necessitate further mental examination.
F. WHETHER THE ALJ IMPROPERLY EVALUATED MR. DANTE’S
CREDIBILITY.
Lastly, Mr. Dante claims that the ALJ’s use of
boilerplate language to assess his credibility, without
further explanation, is inconsistent with Seventh Circuit
decisions.
Pl.’s brief at 17.
The Commissioner argues that
the Seventh Circuit never held that the mere use of
boilerplate language was grounds for reversal; rather it is
the use of boilerplate language without any further
explanation.
Commissioner’s Motion for Summary Judgment, p.
8.
In reference to Mr. Dante’s credibility, the ALJ states
in her decision that she finds his “… 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
35
inconsistent with the above residual functional capacity
assessment.”
[R. at 19.]
Although the ALJ may have used boilerplate language,
the Court finds that she, nonetheless, provided explanation
and sufficiently articulated the reasoning leading to her
credibility findings.
Therefore, the Court finds that the
ALJ did not err in her evaluation of the Plaintiff’s
credibility.
Because it is apparent that the ALJ discounted
Plaintiff’s drowsiness, however, on remand the ALJ should
attempt to further develop Mr. Dante’s testimony concerning
the side effects his mandatory medications create, and reassess whether those statements are consistent or not with
other evidence in the record.
Additionally, the ALJ should
also reconsider whether Dr. Hallman’s recommendation for
Plaintiff to elevate his legs materially affects his ability
to perform.
Conclusion
For the reasons set forth above, the Court grants Mr.
Dante’s motion for summary judgment [#14] and denies the
Commissioner’s motion for summary judgment.
The case is
remanded to the Commissioner for further proceedings
consistent with this Memorandum Opinion and Order.
Date: August 16, 2013
36
E N T E R
E D:
______________________________
MAGISTRATE JUDGE ARLANDER KEYS
UNITED STATES DISTRICT COURT
37
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?