Dugan v. Astrue

Filing 35

MEMORANDUM Opinion Signed by the Honorable Samuel Der-Yeghiayan on December 5, 2013. Mailed notice(mgh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN R. DUGAN.

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Plaintiff,
v.
CAROLYN COLVIN, Acting
Commissioner of Social Security,
Defendant.

No. 12 C 9685

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on the parties’ cross motions for summary
judgment. For the reasons stated below, Plaintiff John R. Dugan’s (Dugan) motion
for summary judgment is granted, and Defendant Social Security Administration’s
(SSA) motion for summary judgment is denied. This matter is remanded to the SSA
for further proceedings consistent with this opinion.

BACKGROUND
In August 2009, John R. Dugan (Dugan) applied for Disability Insurance
Benefits and Supplemental Security Income, contending that he has mental
impairments and a combination of physical impairments, including arthritis of the
knees and obesity. Dugan was denied benefits initially, and his request for
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reconsideration was denied. In November 2011, after a hearing (Hearing) before an
Administrative Law Judge (ALJ), the ALJ found Dugan had certain severe
impairments but had the residual functional capacity (RFC) to perform light work
with certain limitations, and the ALJ denied benefits. Dugan’s request for review by
the Appeals Council was denied in October 2012. On December 5, 2012, Dugan
brought the instant appeal from the ALJ’s decision. Dugan has filed a motion for
summary judgment seeking to have the ALJ’s decision reversed, or in the alternative,
seeking to have the case remanded for additional proceedings, (P SJ Mem. 20), and
the SSA has filed a motion for summary judgment seeking to have the ALJ’s
decision affirmed.

LEGAL STANDARD
Pursuant to 42 U.S.C. § 405(g), a party can seek judicial review of
administrative decisions made under the Social Security Act. When an ALJ’s
decision is deemed to be “the final action of the Social Security Administration, the
reviewing district court examines the ALJ’s decision to determine whether
substantial evidence supports it and whether the ALJ applied the proper legal
criteria.” Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011).

DISCUSSION
An ALJ examines a claim of disability under a five-step process. Craft v.
Astrue, 539 F.3d 668, 673-74 (7th Cir. 2008). In step one, the ALJ “considers
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whether the applicant is engaging in substantial gainful activity.” Id. In step two,
the ALJ “evaluates whether an alleged physical or mental impairment is severe,
medically determinable, and meets a durational requirement.” Id. In step three, the
ALJ “compares the impairment to a list of impairments that are considered
conclusively disabling.” Id. If the applicant’s impairment satisfies “or equals one of
the listed impairments, then the applicant is considered disabled” and the inquiry
ends. Id. If the inquiry continues, in step four, the ALJ “assesses an applicant’s
residual functional capacity (RFC) and ability to engage in past relevant work.” Id.
In step five, the ALJ “assesses the applicant’s RFC, as well as his age, education, and
work experience to determine whether the applicant can engage in other work” and
“[i]f the applicant can engage in other work, he is not disabled.” Id.
In the instant appeal, Dugan argues: (1) that the ALJ failed to make a
credibility determination regarding Dugan’s allegations, and (2) that the ALJ erred in
evaluating Dugan’s physical and mental limitations when making an RFC
determination.

I. Credibility Determination
Dugan contends that the ALJ erred by failing to make a credibility finding,
relating to Dugan’s claim of knee pain and depression. In determining the weight to
assign a claimant’s allegations, an ALJ must give “‘specific reasons’ for a credibility
finding,” and statements “that ‘the individual’s allegations have been considered’ or
that the allegations are (or are not) credible” are insufficient. Golembiewski v.
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Barnhart, 322 F.3d 912, 915 (7th Cir. 2003)(quoting SSR 96-7p). When reviewing
the ALJ’s credibility determination, the court examines “‘whether the ALJ’s
determination was reasoned and supported.’” Shielder v. Astrue, 688 F.3d 306, 311
(7th Cir. 2012)(quoting Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008)).
In the instant action, the ALJ failed to provide an adequate credibility
determination regarding Dugan’s allegations of pain. The ALJ concluded that Dugan
“has described daily activities which are not limited to the extent one would expect,
given the complaints of disabling symptoms and limitations,” and that Dugan’s
“allegations regarding knee pain are out of proportion to the treatment records and
lack of treatment for knee pain after 2009.” (AR 35). However, the ALJ failed to
adequately address the evidence in the record or explain her conclusions in this
regard. See Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011)(indicating that an ALJ
must “build the requisite ‘logical bridge’ between the evidence and her
conclusion”)(quoting Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009).
The ALJ noted that in an April 18, 2011 medical report (April 2011 Report),
Dugan was reported to have full range of motion of bilateral knees and no swelling.
(AR 34, 734-35). However, the April 2011 Report referenced by the ALJ also noted
that Dugan complained of having knee pain “at times . . . so severe” that Dugan was
“significantly limited in [his] ability to walk.” (AR 734-35). The ALJ failed to
adequately explain why she accepted certain information in the Report as true and
yet dismissed the April 2011 Report’s reference to Dugan’s claimed pain.
The ALJ also referenced Dugan’s ability to do chores such as raking leaves in
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concluding that Dugan’s claimed physical symptoms were not credible. However, a
review of Dugan’s testimony indicates that Dugan indicated only in general terms
that he had to do certain chores at times at his place of residence. (AR 61-62). As to
raking, which was identified by the ALJ as a determinative factor, Dugan merely
stated that he will “rake the leaves sometimes. . . .” (AR 35, 62). Dugan testified
that no one supervised him and made him complete the raking in a certain amount of
time. (AR 62). Dugan explained he did not need to complete the raking in one day
and might take as many as four days to complete the chore. (AR 62). The record
does not contain information identifying the area of land that needed to be raked by
Dugan within that four-day period. Dugan also admitted that he sometimes assists in
cooking meals as a chore. (AR 62). However, again Dugan was not asked to
provide specific details to explain the frequency and amount of work involved in the
cooking chore. The ALJ, in concluding that Dugan’s chores were physically
demanding, engaged in speculation outside the record and failed to explain her
conclusions.
Dugan also testified regarding his knee pain at the Hearing. Dugan stated that
he had significant pain in his knees and that they were swollen. (AR 56). Dugan
further testified that his knee pain had worsened after his stroke and that Dugan was
using a variety of drugs to deal with the pain. (AR 56, 59). The ALJ failed to
address such claims made by Dugan in making a credibility determination. Although
the ALJ is not required to address every piece of evidence in her decision, the ALJ
must at least reference some pertinent evidence in the record to adequately justify her
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conclusions and cannot merely provide conclusory statements. See Roddy v. Astrue,
705 F.3d 631, 636 (7th Cir. 2013)(stating that the ALJ “was required to provide an
accurate and logical bridge between the evidence and his conclusions”)(internal
quotations omitted).
The ALJ also failed to provide a credibility determination regarding Dugan’s
allegations of depression. The ALJ discussed Dugan’s hospitalizations for
depression and suicidal ideation and Dugan’s treatment with medications and
occasional mental health visits. (AR 32, 33, 35, 559, 656, 678). The ALJ also
discussed the medical interrogatory completed by Dr. Larry Kravitz (Kravitz) on
May 13, 2011 and noted that she gave his opinion great weight. (AR 36). However,
the ALJ failed to discuss Dugan’s testimony regarding his depression. Dugan
testified that he is on Prozac for depression but it is still a problem for him, and that
for the last four or five years he has battled extreme depression. (AR 61, 67). It is
not clear from the ALJ’s decision whether Dugan’s testimony was considered. On
remand, the ALJ should develop the record concerning Dugan’s claims of physical
and mental limitations and provide a proper credibility determination with enough
clarity to permit meaningful review.

II. RFC Determination
Dugan argues that the ALJ erred in her RFC determination, finding Dugan
capable of performing light work. In determining an applicant’s RFC, the ALJ “must
evaluate all relevant evidence . . . including evidence of impairments that are not
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severe.” Arnett v. Astrue, 676 F.3d 586, 591 (7th Cir. 2012). An ALJ’s decision
should be upheld “if the evidence supports the decision and the ALJ explains his
analysis of the evidence with enough detail and clarity to permit meaningful review.”
Id. at 591-92.

A. Physical Therapist’s Notes
Dugan contends that the ALJ erred by failing to mention or evaluate Dugan’s
physical therapist’s notes from 2009. Dugan contends that the ALJ relied on the
opinions of the state agency physicians in evaluating Dugan’s RFC although their
opinions allegedly were entitled to less weight because the state agency physicians
were not examining physicians, and that the physical therapist’s notes show Dugan
was incapable of sustaining light work. The ALJ’s duty is to build an “accurate,
logical bridge” to her conclusions. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir.
2003). The ALJ concluded that Dugan was capable of light work with certain
limitations. The ALJ supported that conclusion by addressing, for example, Dugan’s
knee operations in early 2009, his release to return to work in June 2009, his “acute
cerebrovascular accident and myocardial infarction in July 2009,” and his significant
recovery and release by his neurologist and cardiologist to return to work in
November 2009. (AR 31, 34, 485, 489). However, the ALJ failed to “minimally
articulate[] [her] reasons for crediting or rejecting evidence of disability” with regard
to the physical therapist’s notes. Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir.
2007)(quoting Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004). For example,
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in August 2009 the physical therapist noted Dugan had difficulty walking and that
his left knee gave way three times while walking 130 feet, and in September 2009
the physical therapist noted that Dugan was able to lift twenty pounds but was unsafe
while lifting and that Dugan was unable to crouch or do deep knee bends. (AR 358,
627). The ALJ failed to make clear in her decision whether she considered this
evidence in the record, given that the RFC included the limitation that Dugan “can
occasionally climb ramps/stairs, balance, stoop, kneel, crouch, and crawl . . . .” (AR
28). Defendant argues that the physical therapist is not a doctor and cannot render a
medical opinion. Even if that is true, that does not preclude the ALJ from
considering the evidence presented relating to the physical therapist’s treatment of
Dugan. The ALJ cannot ignore evidence in the record simply because it was not
presented by a medical doctor. See Arnett, 676 F.3d at 591 (stating that an ALJ “may
not ignore entire lines of contrary evidence”). On remand, the ALJ should consider
Dugan’s physical therapist’s notes from 2009.

B. Physical Limitations from Combination of Impairments
Dugan contends that the ALJ failed to explain why Dugan’s combination of
impairments, including arthritis and obesity, would not limit him to sedentary as
opposed to light work. As previously discussed, evidence of Dugan’s alleged
limitations from knee pain should be analyzed on remand. However, substantial
evidence in the record indicates the ALJ properly accounted for Dugan’s obesity.
The ALJ stated she considered “the cumulative effects the claimant’s obesity has on
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his other impairments.” (AR 27). The ALJ also stated that Dugan “is an obese
male,” that “[w]hen analyzing the claimant’s severe impairments, I considered the
effects of the claimant’s obesity in assessing his residual functional capacity for
work-related activity,” and that “[b]ased on the claimant’s heart condition, chronic
obstructive pulmonary disease, diabetes mellitus, knee problems, and obesity, I have
reasonably accommodated him with a light residual functional capacity.” (AR 3435). The ALJ noted that Dr. M.S. Patil assessed Dugan as “moderately obese and in
no acute distress” during a consultative examination in January 2010 and that Dr.
Lambert noted Dugan was obese during a follow-up in June 2010. (AR 32, 33).
Thus, the ALJ properly considered Dugan’s combination of impairments.

C. Mental Limitations
Dugan contends that the ALJ erred in evaluating Dugan’s episodes of
decompensation and limitations in social functioning. The ALJ discussed the May
2011 opinion by Kravitz, and stated that she gave his opinion great weight. (AR 36).
Kravitz reviewed Dugan’s medical history and daily activity reports and concluded
that Dugan had “generally intact mental status functioning.” (AR 36). The ALJ also
noted that “a consultative examiner found in February 2010 that the claimant had
only mild limitations in understanding and memory.” (AR 36, 731). The ALJ also
concluded that Dugan has mild limitations in social functioning. (AR 27). However,
the record is filled with evidence indicating the contrary, such as an argument with

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an individual at his recovery home, and reports indicating that he was excessively
irritable and angry. (AR 748, 750).
The ALJ also concluded that although “[m]entally, [Dugan] was hospitalized 3
times in 2010, . . . a close look at the records reveal that those hospitalizations were
related to heroin abuse.” (AR 35). However, as Dugan correctly points out the mere
fact that he was hospitalized relating to heroin use does not preclude the fact that
Dugan was also treated for other mental issues as well. For example, the record
shows that during one such hospitalization, Dugan was treated for mental health
issues such as severe depression and suicide attempts. (AR 461). Thus, on remand,
the ALJ should properly explain her conclusions relating to Dugan’s mental
limitations.
Based on the above, Dugan has not shown that he is entitled as a matter of law
to an award of benefits, but Dugan has shown that the ALJ erred in certain areas and
that a remand is appropriate. Therefore, Dugan’s motion for summary judgment is
granted and the SSA’s motion for summary judgment is denied

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CONCLUSION
Based on the foregoing analysis, Dugan’s motion for summary judgment is
granted and the SSA’s motion for summary judgment is denied. This matter is
remanded to the SSA for further proceedings consistent with this opinion.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: December 5, 2013

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