Turner v. Astrue

Filing 28

MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 7/22/2014. (ma,)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARTHA TURNER,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,1
Defendant.

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No. 12 CV 10229
Magistrate Judge Young B. Kim

July 22, 2014

MEMORANDUM OPINION and ORDER
Martha Turner seeks disability insurance benefits (“DIB”), see 42 U.S.C.
§§ 416(i), 423, and supplemental security income (“SSI”), id. §§ 1381, et seq.,
claiming that she is disabled as a result of degenerative disc disease. After the
Commissioner of the Social Security Administration denied her applications, Turner
filed this suit seeking judicial review. See 42 U.S.C. § 405(g). Before the court are
the parties’ cross-motions for summary judgment.

For the following reasons,

Turner’s motion is granted to the extent that the case is remanded for further
proceedings and the Commissioner’s motion is denied:
Procedural History
Turner first applied for DIB and SSI on December 12, 2007, claiming she was
disabled as of September 8, 2007, because of a back injury “resulting from being hit

Pursuant to Federal Rule of Civil Procedure 25(d), Carolyn W. Colvin—who
became the Acting Commissioner of Social Security on February 14, 2013—is
automatically substituted as the named defendant.

1

by a large object.”

(See Administrative Record (“A.R.”) 83, 86.)

After the

Commissioner denied her claims initially and upon reconsideration, Turner sought
and was granted a hearing before an administrative law judge (“ALJ”). (Id. at 83.)
On September 8, 2009, ALJ Mona Ahmed issued a decision concluding that Turner
was not disabled.2 (Id. at 83-91.)
Turner applied again for DIB and SSI three months later on December 7,
2009, claiming the same disability onset date of September 8, 2007. (Id. at 39, 41.)
This second application was also denied initially and upon reconsideration, (id. at
76, 78), and Turner sought and was granted a hearing before another ALJ, (id. at
126, 151). ALJ Curt Marceille held a hearing on May 9, 2011, at which Turner and
a vocational expert provided testimony.

(Id. at 55.)

On May 26, 2011, ALJ

Marceille issued a decision finding that Turner is not disabled within the meaning
of the Social Security Act and denying her DIB and SSI claims. (Id. at 39-49.)
When the Appeals Council denied Turner’s request for review on July 31, 2012, (id.
at 3-8), the ALJ’s denial of benefits became the final decision of the Commissioner,
see O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010). On December 21,
2012, Turner filed the current suit seeking judicial review of the Commissioner’s
second decision. See 42 U.S.C. § 405(g); (R. 1, Compl.). The parties have consented
to the jurisdiction of this court. See 28 U.S.C. § 636(c); (R. 9).

The Appeals Council denied Turner’s request for review on August 19, 2010. (A.R.
97-101).
2

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Facts
Turner, who is 51 years old, has had back pain since a September 2007
injury. Turner also suffers from chronic anemia. She has worked various retail
jobs, and her last job was as an assistant manager at her sister’s popcorn store from
May 2006 through July 2009. Despite this work record, she claims that her back
pain became disabling on September 8, 2007. Turner presented both documentary
and testimonial evidence in support of her claim.
A.

Medical Evidence
In September 2007, Turner sought emergency care after an accident

involving heavy juice cartons either falling on or striking her back while she stood
in line at a store (the specifics of the incident are not clearly described in the
record). (A.R. 544.) An MRI showed “degenerative disc disease at L5-S1” and “[l]oss
of normal lumbar lordosis.”

(Id.)

Shortly thereafter Turner began seeing

chiropractors at Chicago Heights Pain Center. (Id. at 308.) She went for weekly
visits from mid-September 2007 through January 2008. (See id. at 313-36.) During
that time Turner generally reported experiencing “a lot of pain,” mostly at night,
but with occasional improvement using moist heat therapy, electrical muscle
stimulation, and home exercises. (See, e.g., id. at 313, 315, 334.)
In January 2008, Turner was referred to Dr. Paul Madison, a pain
management specialist. (Id. at 339.) When Turner first saw Dr. Madison, she told
him that sharp pain caused her to sleep only two to three hours a night. (Id.)
Dr. Madison prescribed Norco and Flexeril, and also performed a lumbar spine MRI

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which confirmed L5-S1 disc herniation, disc bulging at L4-L5 and L3-L4, and
lumbar radiculopathy.

(Id. at 339, 341.)

Later that month Dr. Madison

administered a transforaminal epidural steroid injection and diagnosed Turner with
disc protrusion and lumbar neuralgia.

(Id. at 342.)

Turner reported that the

epidural injection reduced, but did not eliminate, her pain. (Id. at 336.)
In April 2008, Dr. Madison noted that while Turner experienced some
improvement in her symptoms, she continued to experience severe pain “despite
conservative treatment including medication, therapy, and steroid injections.” (Id.
at 348.)

A physical examination showed a positive straight leg test, and

Dr. Madison observed that Turner’s ambulation was slightly slowed and she had a
“crouched forward” posture. (Id.) He recommended a lumbar disc nucleoplasty3 of
L4-L5 and L5-S1. (Id. at 349.) He also noted that Turner was going to discontinue
taking Norco because of dizziness associated with the medication. (Id.)
During that April 2008 visit, Dr. Madison also completed a form for the
Illinois Bureau of Disability Determination Services (“DDS”). (Id. at 512-13.) He
diagnosed Turner with herniated discs at L4-L5 and L5-S1, lumbar neuralgia, and
bilateral lumbar radiculitis.

(Id. at 512.)

He wrote that Turner complained of

numbness in her legs and pain and weakness in both her low back and legs caused
by standing or sitting for more than 20 minutes, bending forward, and lifting more

Also called a “percutaneous discectomy,” this surgical procedure involves
removing herniated disc material that is pressing on a nerve root or spinal cord.
(See A.R. 349); Percutaneous Discectomy for a Lumbar Herniated Disc, WebMD.com,
http://www.webmd.com/back-pain/percutaneous-discectomy-for-a-herniated-disc
(last visited July 21, 2014).
3

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than 10 pounds. (Id.) He also reported that straight leg raise tests showed evidence
of nerve root compression. (Id.) Dr. Madison noted her lumbar spine range of
motion was 70 degrees forward and 20 degrees lateral, and described her gait as
“slowed” with no assistive device needed. (Id.) He opined that she can only sit or
stand for 20 to 30 minute stretches, and then must alternate positions. (Id. at 513.)
Later that April, Dr. Madison performed a nucleoplasty on Turner. (Id. at
379.) In a letter summarizing a follow-up visit, Dr. Madison wrote that Turner sits
and moves very slowly and has difficulty standing or walking for an extended period
of time. (Id. at 386.) He observed that after being seated for more than 20 minutes,
Turner appeared to have significant difficulty standing. (Id.) He added that she
exhibited “weakness of dorsiflexion and plantarflexion,” reported mild loss of
sensation in her thighs, and had stopped taking Norco due to itchiness. (Id.)
In May 2008, Dr. Madison completed a medical evaluation for the Illinois
Department of Human Services (“DHS”). (Id. at 362-63, 365, 374, 386.) He opined
that she had “more than 50% reduced capacity” in walking, bending, standing,
stooping, climbing, pushing, and pulling during an eight-hour workday. (Id. at 362.)
He further found she had 20 to 50 percent reduced capacity for sitting, turning, and
performing activities of daily living. (Id.) He observed that she had tenderness,
weakness, and mobility limitations of her lumbar spine and lower extremities. (Id.
at 363.)

He also noted mild sensory loss in her thighs, radicular symptoms,

weakness of dorsiflexion and plantarflexion, herniated discs, and muscle spasms.
(Id.)

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Turner went to the emergency room in June 2008 for swelling in her left
ankle. (Id. at 539.) An examination showed no back tenderness, no pain with a
straight leg raise test, mild swelling and tenderness in her left foot, and steady
ambulation without assistance. (Id. at 540.) Turner was diagnosed with acute nontraumatic swelling of the left ankle and prescribed anti-inflammatory medication.
(Id.)
In July 2008, Turner received another epidural steroid injection and
Dr. Madison diagnosed her with cervical neuralgia. (Id. at 353.) For about a year
afterwards, the record shows no treatment or visits aside from prescription refills.
(See id. at 481.)

Then in July 2009, Turner went to the emergency room

complaining of back pain. (Id. at 522.) She was diagnosed with a herniated disc
and sciatica and discharged with medication prescriptions for her pain. (Id. at 523,
525.)
In October 2009, Turner went to the emergency room again for back pain and
reported that although she had been taking Vicodin and Flexeril, she ran out of
Flexeril several days earlier and had not been taking Vicodin regularly. (Id. at 517.)
She also complained of fatigue and said she had not seen a doctor since her surgery
the year before. (Id.) A physical exam showed lumbar tenderness, but straight leg
raise results were negative and she had “normal range of motion.” (Id. at 518.) She
was discharged with muscle relaxants and pain medications. (Id.)
Later that month Turner began seeing Dr. Rachel Rubin at Oak Forest
Hospital for her lower back pain. (Id. at 548.) Dr. Rubin noted negative straight leg

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raise results and recommended that Turner continue taking her prescribed
medication. (Id.) During a follow-up visit in February 2010, Dr. Rubin reported
that Turner went to the emergency room a few days earlier for back pain and a
swollen left foot that was “better now.” (Id. at 556.) She wrote that Turner had a
positive left straight leg raise and “cannot stand or walk for [more than] 10 minutes
at a time.” (Id.)
In March 2010, Dr. M.S. Patil completed an internal medicine consultative
examination for DDS. (Id. at 563.) Turner told Dr. Patil she was receiving physical
therapy “on and off,” and had been “doing well” until October 2009. (Id.) She
complained of constant low back pain radiating to her legs, as well as intermittent
numbness and swelling in her feet. (Id.) During the physical examination, Turner
had a normal gait and did not need an assistive device to stand, but she had some
difficulty walking on her heels and toes. (Id. at 565.) Dr. Patil noted that Turner
had range of motion limitations in her lumbar spine and some difficulty squatting
and arising. (Id.) His diagnostic impressions from x-ray imaging included severe
disc space narrowing of the L5-S1 intervertebral disc space with sclerosis of the
lower half of the L5 vertebral body. (Id.)
In April 2010, Dr. David Mack, a medical consultant, completed a Physical
Residual Functional Capacity (“RFC”) Assessment. (Id. at 568-75.) He opined that
Turner could occasionally lift 20 pounds, frequently lift 10 pounds, stand or walk six
hours a day, sit for six hours a day, and perform unlimited pushing and pulling.
(Id. at 569.)

Dr. Mack referenced Dr. Patil’s examination showing Turner’s

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ambulation, strength, reflexes, and sensation were normal.

(Id.)

Dr. Mack

concluded that she could occasionally climb ramps and stairs and stoop, but could
never climb ladders, ropes, or scaffolds. (Id. at 570.) He reported no manipulative,
visual, communicative, or environmental limitations. (Id. at 571-72.) He believed
Turner’s statements were “partially credible” because she “indicates severe
restrictions due to pain yet ambulation is normal.” (Id. at 536.)
Then in May 2010, Dr. Calixto Aquino completed an Illinois Request for
Medical Advice form affirming Dr. Mack’s Physical RFC Assessment. (Id. at 58890.)

In addition to summarizing Dr. Patil’s examination findings, Dr. Aquino

referred to a May 2010 record from Dr. Rubin indicating chronic low back pain with
sciatica caused by a herniated disc. (Id. at 590.) He noted that Dr. Rubin recorded
a positive straight leg raise test, and that it appeared Turner could still lift 20
pounds occasionally and 10 pounds frequently. (Id.) Dr. Aquino concluded that
Turner’s complaint of having problems sleeping because of pain was credible, but
that overall, her claims were still only “partially credible” and that “objective
medical evidence” did not support the severity of her statements. (Id.) Although
Dr. Aquino did not mention this in his report, Dr. Rubin’s May 2010 record also
stated that Turner could not work an eight-hour day “in either a seated job or
standing.” (Id. at 579.)
In August 2010, Turner went back to see Dr. Rubin and reported lower back
pain and numbness in her left toes, for which Dr. Rubin prescribed medication. (Id.
at 592.)

In September 2010, lumbosacral spine radiographs showed “severe

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intravertebral disc space narrowing at L5/S1” and “facet joint degenerative
changes.” (Id. at 638.) Turner was referred for physical therapy (“PT”) at Oak
Forest Hospital, and physical therapist Daniel Halkin noted that Turner
complained of severe back pain, sharp pain shooting through her left ankle, aching
knees, chest pain, and pain while sitting.

(Id. at 628.)

Turner also reported

“decreased sensation” in her left lower extremity. (Id.) Halkin wrote that Turner
demonstrated generalized pain symptoms and would require PT intervention. (Id.
at 630.)

Her proposed treatment plan included outpatient PT twice a week in

October, but there are no records documenting that Turner attended these sessions.
(Id. at 603, 630.)
B.

Turner’s Testimony
During the hearing in May 2011, Turner described her past work history.

(A.R. 58-59.) She testified that she previously worked at a shoe store and more
recently worked at her sister’s popcorn shop as an assistant manager. (Id.) Her
responsibilities there included unpacking shipments, ordering, scheduling, and
stocking. (Id. at 59.) She said she started working at the popcorn shop in May
2006, but stopped working there in July 2009 because the store went out of
business. (Id.) According to her testimony, Turner worked there five days a week.
(Id.)
Turner then testified about the limiting effects of her degenerative disc
disease. She said her pain radiates from her back down to her legs. (Id. at 60.)
Turner rated her pain on a scale from one to ten as “about a ten,” indicating

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emergency room-level pain. (Id.) When asked how often she goes to the emergency
room because of pain, Turner testified that she had been going “for the past
months” and went “three weeks ago.” (Id.) She then added that she had been in the
emergency room every other week because of bleeding, and afterwards clarified that
her visits were for pain as well “because it’s all one.” (Id.)
As for treatment, Turner testified that she takes medication for her pain. (Id.
at 60-61.) She said Vicodin makes her itch and Norco causes her left side to swell,
but switching to Tramadol and Prednisone has helped. (Id. at 61.) According to
Turner, she wakes up to take her pain medications two or three times a night, and
her medications also make her so tired that she often sleeps for six or seven hours
during the day. (Id. at 62, 66.) When asked whether her pain had worsened since
she first applied for benefits, Turner responded that her pain is “a lot worse” in the
sense that it is more constant than it was two years ago. (Id. at 64.) She also said
that she went to PT about four months before the hearing. (Id.) She explained that
she stopped seeing Dr. Madison because she could no longer afford to pay him, so
she sought treatment from Cook County instead. (Id. at 66.)
With respect to daily activities, Turner testified that during a typical day,
she stays inside her mother’s house where she lives with her two sisters. (Id. at 62.)
She does not cook or clean and spends most of her time resting because she does not
sleep well at night.

(Id. at 63.)

She goes to the grocery store with her sister

sometimes to get some air, but she sits in the car while her sister goes into the
store. (Id. at 63-64.) Turner said she does not drive because of her pain and no

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longer has a valid driver’s license. (Id. at 68.) She also mentioned that she got
“some toll tickets.”

(Id.)

She said she used to go to church every Sunday but

stopped going because of fatigue and has trouble standing or sitting for long
stretches of time. (Id. at 66.) She testified that she can lift about 10 pounds, sit for
30 to 40 minutes before she has to get up and move around, and stand for about 30
to 40 minutes. (Id. at 63.) She explained that she can also walk for about 30
minutes. (Id.)
C.

Vocational Expert’s Testimony
Vocational Expert (“VE”) Lee Knutson answered the ALJ’s questions

regarding the kinds of jobs someone with certain hypothetical limitations could
perform. (A.R. 69-74.) The VE first confirmed that Turner’s previous job as an
assistant manager at various retail stores is a light and skilled position which she
performed at a medium level of exertion. (Id. at 69.) The VE noted that Turner also
previously held a position as a sales clerk, which is a light and semi-skilled position.
(Id. at 70.) The ALJ then asked the VE about a hypothetical individual of Turner’s
age, education, and work experience who was limited to sedentary work and could
lift 10 pounds occasionally, less than 10 pounds frequently, sit for six of eight hours,
and stand and walk for a total of two hours in an eight-hour workday. (Id.) This
hypothetical individual could not climb ladders, ropes, or scaffolds, and could not
work around unprotected heights or hazards because of “drowsiness, side effects,
[and] sleep problems.” (Id.) The VE responded that such an individual would not

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be able to work at Turner’s previous jobs, but could work as a bench assembler,
inspector, checker, order clerk, or weigher.4 (Id. at 70-71.)
The ALJ next asked about an individual with the same limitations from the
first hypothetical, but added that after 30 minutes of sitting, the individual would
need to stand up for a period of time before returning to her seat. (Id.) The VE
testified that these additional limitations would probably reduce the number of
available bench assembler, inspector, checker, and weigher positions by at least 30
percent, but that the limitations would not impact the order clerk position. (Id. at
71.)
Then Turner’s attorney asked the VE about an individual with the same
limitations as the ALJ’s second hypothetical, except that after sitting for 30 or 40
minutes, she would need to stand up and walk around for 10 or 15 minutes
repeatedly throughout the workday. (Id. at 72.) The VE responded that if such an
individual had to leave her work area or station to walk around, she would not be
able to perform any of the above-mentioned positions and there would be no other
unskilled sedentary positions available. (Id.) Turner’s attorney then asked about a
hypothetical individual who would be off-task because of drowsiness or any other
reason for more than 15 percent of the workday. (Id.) The VE testified that such an
individual would also be unemployable. (Id. at 72-73.)
The hearing transcript refers to “waiters” and “wait tester” positions. (Id. at 71.)
However, the court presumes that the transcript should read “weighers” and
“weight tester” instead because the VE cited to Dictionary of Occupational Titles
§ 539.485-010, the entry for “weight tester,” as an example of an available job. See
Dep’t of Labor, Dictionary of Occupational Titles (4th ed. Rev. 1991), DICOT
§ 539.485-010, available at http://www.occupationalinfo.org/53/539485010.html.
4

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D.

Post-Decision Medical Evidence
After the ALJ issued his decision denying benefits on May 26, 2011, Turner

submitted two additional records from Dr. Rubin which the Appeals Council
considered when it denied Turner’s request for review on July 31, 2012. (A.R. 3-6.)
One of the records was an October 2011 report noting that Turner complained of
low back pain, anemia, hot flashes, and numbness in her feet and toes. (Id. at 634.)
Dr. Rubin diagnosed Turner with cervicalgia, low back pain, and iron deficiency
anemia. (Id. at 636.) She wrote that because of her ailments, Turner cannot sit or
stand for long periods of time and needs to rest 10 minutes out of each hour. (Id. at
637.) Dr. Rubin concluded that Turner cannot lift, bend, climb, twist, or stoop. (Id.)
She further opined that PT was not helping, and that Turner cannot tolerate
sedentary work due to chronic fatigue and the need to change positions frequently.
(Id.)
Turner also submitted a Physical Impairment Questionnaire Dr. Rubin
completed in February 2012. (Id. at 686.) In that report, Dr. Rubin wrote that
Turner can lift five or fewer pounds and can only use her left and right arms, hands,
and fingers for 20 percent of an eight-hour workday. (Id.) She opined that Turner
does not need an assistive device, but cannot sit, stand, or walk for more than an
hour. (Id.) Dr. Rubin concluded that as a result of her impairments, Turner would
likely miss three or more days of work per month. (Id.)

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E.

The ALJ’s Decision
The ALJ concluded that Turner is not disabled under §§ 216(i), 223(d), and

1614(a)(3)(A) of the Social Security Act. (A.R. 39-40.) The ALJ first noted that the
doctrine of res judicata applies for the period between Turner’s alleged disability
onset date, September 8, 2007, and September 8, 2009, because of the
Commissioner’s previous binding decision denying benefits. (Id. at 39.) The ALJ
therefore limited his decision to determining disability beginning on September 8,
2009. (Id.)
In applying the standard five-step sequence for assessing disability, see
Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012), the ALJ determined at steps
one and two of the analysis that Turner has not engaged in substantial gainful
activity since September 9, 2009, and that her degenerative disc disease constitutes
a severe impairment.

(A.R. 41.)

At step three the ALJ found that Turner’s

impairment neither meets nor medically equals any of the listings in 20 C.F.R. 404,
Subpart P, Appendix 1.

(Id. at 42.)

Proceeding to steps four and five of the

analysis, the ALJ concluded that Turner has the RFC to perform less than the full
range of sedentary work. (Id.) He found that Turner can stand and walk for short
periods of time for a total of two hours in an eight-hour workday, can sit for six
hours a day, cannot crouch, crawl, kneel, or climb ladders, ropes, or scaffolds, can
only occasionally stoop and climb ramps and stairs, and must avoid unprotected
heights or hazards such as dangerous moving machinery. (Id.) The ALJ further
found that Turner is unable to return to her previous work, but that she can

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perform other jobs that exist in the national economy. (Id. at 47-48.) Accordingly,
the ALJ concluded that Turner is not disabled and denied her applications for
benefits.
Analysis
In her motion for summary judgment, Turner argues that the ALJ committed
reversible errors in determining her RFC, assessing her credibility, weighing the
medical evidence, and analyzing whether her impairment meets or medically equals
Listing 1.04. (R. 20, Pl.’s Mem.) This court’s role in disability cases is limited to
determining whether the ALJ’s decision is supported by substantial evidence and
free of legal error.

See Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2004).

Substantial evidence is that which “a reasonable mind might accept as adequate to
support a conclusion.”

McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011)

(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The substantial evidence
standard requires the ALJ to build a logical bridge between the evidence and his
conclusion, but not necessarily to provide a comprehensive written evaluation of
every piece of evidence in the record. See Pepper v. Colvin, 712 F.3d 351, 362 (7th
Cir. 2013). In asking whether the ALJ’s decision has adequate support, this court
will not reweigh the evidence or substitute its own judgment for the ALJ’s. Shideler
v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012).
A.

Step-Three Analysis
This court begins with Turner’s argument that the ALJ improperly evaluated

whether her condition meets Listing 1.04 because a claimant with a qualifying

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impairment is presumed to be disabled, ending the need for further inquiry. See
Sullivan v. Zebley, 493 U.S. 521, 525 (1990). To fall under a listed impairment the
claimant must demonstrate that she satisfies all of the listing’s criteria. Rice v.
Barnhart, 384 F.3d 363, 369 (7th Cir. 2004). A claimant’s condition meets or equals
Listing 1.04(A) if it is a disorder of the spine resulting in compromise of a nerve
root, and there is evidence of “nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy
with associated muscle weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower back, positive straight-leg
raising test[.]” See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04. Listings 1.04(B) and
1.04(C), which Turner does not contend apply to her, require “spinal arachnoiditis”
and “lumbar spinal stenosis” respectively, along with evidence related to those
conditions. Id. The parties do not dispute that Turner’s degenerative disc disease
is a qualifying spine disorder, and the ALJ found that Turner’s disorder constitutes
a severe impairment. (See A.R. 41.) But the ALJ determined that Turner did not
meet the additional requirements in Listing 1.04(A) for a finding of presumptive
disability. (Id. at 42.)
Turner argues that the ALJ misinterpreted Listing 1.04 and failed to
recognize evidence in the record indicating nerve root compression. (R. 20, Pl.’s
Mem. at 19.)

Although ALJs need not address every piece of evidence when

considering whether a claimant’s condition meets or equals a listed impairment, an
ALJ must offer more than a perfunctory analysis of the listing. Kastner, 697 F.3d at

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647 (citations omitted).

If a decision “lacks evidentiary support or is so poorly

articulated as to prevent meaningful review,” remand is required.
Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).

Steele v.

Here the ALJ provided little

explanation for his conclusion beyond stating that the record did not document
“nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis.” (A.R. 42.)
A conclusory statement that a severe impairment does not meet or equal a listing
cannot substitute for a meaningful discussion of all the relevant medical evidence.
Ribaudo v. Barnhart, 458 F.3d 580, 584 (7th Cir. 2006).
The ALJ did, however, make reference to “objective medical evidence”
discussed elsewhere in the opinion, and it is proper for this court to consider the
ALJ’s decision as a whole in deciding whether the listing decision has sufficient
support.

See Rice, 384 F.3d at 370 & n.5.

Looking to the ALJ’s discussion of

Turner’s credibility, the ALJ concluded that “[a]lthough there was medical evidence
of limited spine range of motion and positive straight leg raise, there was no
documented motor, sensory, or reflex loss.” (A.R. 44.) However, the ALJ appears to
have disregarded records showing that Turner exhibited or at least reported motor
loss and sensory loss. The listings note that “[i]nability to walk on the heels or toes,
to squat, or to arise from a squatting position, when appropriate, may be considered
evidence of significant motor loss.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00(E)(1);
see also Kastner, 697 F.3d at 650. Dr. Patil observed in his March 2010 consultative
examination that Turner had difficulty walking on her heels and toes and squatting
and arising.

(Id. at 563.)

Dr. Patil also reported that Turner complained of

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intermittent numbness in her feet. (See id.) Turner reported numbness in her toes
during an August 2010 visit with Dr. Rubin, (id. at 592), and decreased sensation in
her lower left extremity during a September 2010 PT evaluation, (id. at 628). It is
unclear from his decision whether the ALJ considered this relevant evidence.
Because the ALJ did not articulate a rationale for finding “no documented motor,
sensory, or reflex loss” despite records indicating otherwise, remand is necessary for
a more thorough analysis of the evidence. (Id. at 44.)
Turner also argues the ALJ should have consulted a medical expert before
concluding that her impairment did not equal Listing 1.04. (R. 20, Pl.’s Mem. at
20.) Social Security rulings instruct ALJs that they are responsible “for deciding
the ultimate legal question of whether a listing is met or equaled.” S.S.R. 96-6p,
1996 WL 374180, at *3. The rulings also note, however, that “longstanding policy
requires that the judgment of a physician (or psychologist) designated by the
Commissioner on the issue of equivalence . . . must be received into the record as
expert opinion evidence and given appropriate weight.” Id. The ALJ may rely
solely on opinions given in disability determination forms and provide little
additional explanation, but he can only do so if there is no contradictory evidence in
the record. See Ribaudo, 458 F.3d at 584.
Here it appears that the consulting physicians did not specifically opine on
medical equivalence to any listings, and the record contains none of the requisite
forms that would otherwise address the issue of equivalency.

See Maziarka v.

Colvin, 983 F. Supp. 2d 991, 1004 (N.D. Ill. 2013). Although Dr. Patil noted at the

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time of the examination that Turner’s extremity strength, reflexes, and sensation
were normal, the ALJ made no reference to those findings and could not have relied
solely on those opinions, without further explanation, given contradictory evidence
in the record. Furthermore, the fact that Dr. Patil did not find sensory loss during
the examination is not necessarily inconsistent with Turner’s complaints of
intermittent numbness.

Perhaps the ALJ discounted Turner’s self-reports of

sensory loss or Dr. Patil’s observations of motor loss for credibility reasons. If so,
the ALJ should explain that determination on remand.

The ALJ should also

consider whether a medical expert might assist in determining whether Turner’s
spinal disorder medically meets or equals the requirements in Listing 1.04.
B.

RFC Assessment
Although the court need not address in detail Turner’s remaining challenges

because remand is necessary on the basis of the ALJ’s listing analysis, the court will
address them in the interest of thoroughness.
1.

Medical Opinions

Turner argues that the ALJ improperly discounted the opinions of
Drs. Madison and Rubin. (R. 20, Pl.’s Mem. at 12-18.) As treating sources, their
opinions are entitled to controlling weight as long as they are supported by medical
findings and consistent with substantial evidence in the record.

20 C.F.R.

§ 404.1527(c)(2); see Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009). However, an
ALJ “may discount a treating physician’s medical opinion if the opinion is
inconsistent with the opinion of a consulting physician or when the treating

19

physician’s opinion is internally inconsistent, as long as he minimally articulates
his reasons for crediting or rejecting evidence of disability.” Schreiber v. Colvin, 519
Fed. Appx. 951, 958 (7th Cir. 2013) (internal quotations and citation omitted).
The ALJ discounted Dr. Madison’s May 2008 opinion because it was
“inconsistent with the claimant’s minimal clinical findings.” (A.R. 46.) The ALJ
referred to an MRI which showed a herniated disc, but “no stenosis or significant
neuroforaminal narrowing[.]”

(Id.)

He also found that Dr. Madison’s opinion

regarding Turner’s reduced capacity for certain activities was “vague,” and then
cited generally to reasons “indicated in the prior [ALJ’s] decision” for concluding
that Dr. Madison’s opinion deserved “little weight.” (Id.)
This court finds that the ALJ’s explanation falls short for a few reasons.
First, it is unclear how the ALJ reached the conclusion that “no stenosis or
significant neuroforaminal narrowing” in Turner’s MRI results meant Dr. Madison’s
opinion was unsupported. The ALJ’s inference that a herniated disc alone could not
cause the limitations documented in Dr. Madison’s opinion constitutes an
independent and unqualified medical determination. See Rohan v. Chater, 98 F.3d
966, 970 (7th Cir. 1996). The absence of medical evidence supporting the ALJ’s
inference indicates that he impermissibly “played doctor” and filled an evidentiary
gap using his own lay opinion. See Myles, 582 F.3d at 677. On remand the ALJ
should build the requisite logical bridge between the evidence he cited and his
conclusion that Dr. Madison’s opinion was inconsistent with the medical evidence.

20

Second, the ALJ disregarded Dr. Madison’s findings as “vague,” but
ironically, it is unclear what the ALJ meant by that characterization. The court
presumes he was referring to the reasons “indicated in the prior [ALJ’s] decision”
for giving Dr. Madison’s opinion little weight. (A.R. 46.) In her September 2009
decision, ALJ Ahmed characterized Dr. Madison’s assessments of Turner’s capacity
for physical activities as “vague and not particularly helpful” because the percentranges in the evaluation form were imprecise and “could have a number of
interpretations.” (Id. at 88.)
Besides the fact that any imprecision is attributable to the DHS form itself,
(see id. at 362), as a treating source, Dr. Madison’s opinions are still entitled to
controlling weight if they are supported by medical findings and consistent with
substantial evidence in the record, see 20 C.F.R. § 404.1527(c)(2). Notwithstanding
Dr. Madison’s “vague” assessments, ALJ Ahmed concluded that to the extent
Dr. Madison intended to report that Turner could not do even sedentary work, his
opinions were unsupported because they indicated “some tenderness, lack of
mobility and ‘mild’ abnormalities.”

(A.R. 88.)

Not only did she over-simplify

Dr. Madison’s notes, ALJ Ahmed also failed to explain how these findings meant his
opinions were unsupported or inconsistent with the rest of the record. The court is
left only with ALJ Ahmed’s unexplained reliance on the MRI results showing “no
stenosis or narrowing,” which is insufficient for reasons already discussed. (See id.)
Finally, there is no indication in either the current or previous decision that
the ALJ considered the length, nature, and extent of Turner’s treatment

21

relationship with Dr. Madison, the frequency of examination, Dr. Madison’s
specialty, or the types of tests he performed, as required by 20 C.F.R.
§ 404.1527(c)(2).

The record shows that Dr. Madison, a pain specialist, treated

Turner for several months beginning in January 2008 and saw her on numerous
occasions during that time. (See, e.g., A.R. 339, 342, 348, 363, 366, 379, 386, 455,
512.) He performed a variety of tests and procedures on Turner, including an MRI,
(id. at 360), epidural steroid injections, (id. at 342, 353, 455), and a lumbar
nucleoplasty, (id. at 379).
Given the deficiencies in the ALJ’s reasoning, the ALJ should elaborate on
his conclusions and apply the correct legal standard on remand. Although he may
still conclude that Dr. Madison’s findings should be given little weight, if the ALJ
does decide to afford more weight to Dr. Madison’s opinions, the ALJ should also
consider how those opinions might affect his analysis of Listing 1.04.
The ALJ’s explanation for why he gave little weight to Dr. Rubin’s opinions
fares better, but certain deficiencies in the ALJ’s rationale should be addressed on
remand.

The ALJ correctly noted that Dr. Rubin’s statements that Turner is

“disabled” or “unable to work” are findings reserved for the Commissioner, who has
the

ultimate

responsibility

§§ 404.1527(d)(2), 416.927(d)(2).

for

determining

disability.

See

20

CFR

The ALJ then explained why he believed the

record did not support Dr. Rubin’s conclusions.

(A.R. 46.)

In October 2009,

Dr. Rubin reported that Turner had some tenderness and tight musculature and
complained of back pain, but her straight leg raise results were negative. (Id. at 46,

22

516.)

Dr. Rubin’s subsequent treatment notes documented roughly the same

symptoms from that initial visit, (id. at 528, 548, 556, 579), except that in February
2010 she had a positive straight leg raise, (id. at 556), and in August 2010 Turner
complained of numbness in her left toes, (id. at 592). While the ALJ was mistaken
to conclude there was no indication of any sensory loss in the record, he was
otherwise correct in observing that Dr. Rubin’s findings were generally limited to
reports of pain and tenderness. (Id. at 46.) Furthermore, the ALJ pointed out that
in March 2011, Dr. Rubin’s notes showed “normal strength, no swelling, and normal
gait.” (Id. at 45, 620.) Accordingly, the ALJ had sufficient grounds to find that
Dr. Rubin’s treatment notes did not provide sufficient support for her conclusion
that Turner was totally disabled.
The ALJ also found that Dr. Rubin provided infrequent and “minimal”
treatment to Turner which was inconsistent with the limitations she suggested.
(Id. at 46.) He noted that Dr. Rubin saw Turner in October 2009, and the record
shows a follow-up visit in November 2009, but subsequently Dr. Rubin only saw
Turner about once every three months. (Id. at 46, 528, 548, 556, 579, 592, 619.)
Moreover, when Dr. Rubin opined that Turner could not work an eight-hour day in
either a seated or standing position, she had only seen Turner a few times. (Id. at
46, 579.)

Accordingly, the ALJ had a basis for relying on the limited nature,

frequency, and extent of Dr. Rubin’s treatment history to discount her conclusion
that Turner cannot do even sedentary work.

23

The ALJ did err, however, in finding that Dr. Rubin based her opinions
largely on Turner’s subjective complaints. Although an ALJ is entitled to discount a
treating physician’s opinion when it simply parrots the claimant’s subjective
complaints, see Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir. 2008), here
Dr. Rubin’s notes reflect that she physically examined Turner and observed
tightness and tenderness in her lower back. (A.R. 548.) In the course of their
treating relationship Dr. Rubin prescribed Turner narcotics (including Norco and
Vicodin) and reviewed her lumbosacral spine radiographs. (See id. at 593, 638.) In
addition to Turner’s self-reports of pain, Dr. Rubin’s notes include references to
Turner’s diagnosed conditions, including sciatica, disc space narrowing, and
herniated discs. (Id. at 556, 579.) Thus the record does not support the ALJ’s
assertion that Dr. Rubin based her opinions largely on Turner’s subjective
complaints.
The ALJ further erred in discounting Dr. Rubin’s opinion because she only
treated Turner with pain medications.

(Id. at 46.)

Although in some cases

conservative treatment may contradict the severity of the limitations alleged, here
the ALJ did not explain why Dr. Rubin’s decision to treat Turner’s back pain with
medication constituted conservative treatment. See Schomas v. Colvin, 732 F.3d
702, 709 (7th Cir. 2013) (contrasting “conservative” treatment like over-the-counter
medication with “more aggressive” treatment like prescription narcotics and steroid
injections). Dr. Rubin prescribed Turner a plethora of pain medications. (See A.R.
593.) The record shows that despite undergoing more aggressive treatments such

24

as steroid injections and nucleoplasty, Turner continued to complain of pain. (See
id. at 379, 628.) Because the court is remanding for a further discussion of the
ALJ’s listing determination, the ALJ should take the opportunity to address these
other areas of concern in his analysis.
The ALJ correctly noted that Dr. Patil’s March 2010 physical examination
found no neurological deficits and a normal gait. (Id. at 45, 565.) In April 2010,
Dr. Mack observed that Turner’s ambulation, strength, reflexes, and sensation were
normal, and that she could stand or walk for six hours a day. (Id. at 568, 569.)
Dr. Aquino’s May 2010 report affirmed Dr. Mack’s opinion. (Id. at 588.) But the
ALJ’s discussion of these opinions is incomplete without proper analysis of what
weight to give the opinions of Drs. Madison and Rubin. Accordingly, the court finds
that there is insufficient evidence in the record to support the ALJ’s assessment
that Turner is capable of sedentary work.5
2.

Side Effects of Medications

Turner also argues that the ALJ failed to account for the side effects of
Turner’s medication. (R. 20, Pl.’s Mem. at 7.) Turner does not dispute that the ALJ
accommodated her medication’s itching and fatigue side effects by limiting her to

Turner relies heavily on Dr. Rubin’s post-decision opinions in contending that the
ALJ erred in finding her capable of sedentary work. (See R. 20, Pl.’s Mem. at 9.)
But absent the requisite showings under 42 U.S.C. § 405(g), which Turner made no
attempt to make, the court cannot review Dr. Rubin’s post-decision opinions in
deciding whether the ALJ’s reasoning was supported by the record as a whole. See
42 U.S.C. § 405(g) (requiring that claimant show additional evidence is new and
material, and “that there is good cause for the failure to incorporate such evidence
into the record in a prior proceeding”); Eads v. Sec’y of the Dept. of Health & Human
Servs., 983 F.2d 815, 817 (7th Cir. 1993).
5

25

sedentary work involving no exposure to hazards. (Id.) She contends, however, that
he failed to consider forgetfulness, swelling, and severe drowsiness caused by her
medications.

(Id.)

She notes that swelling is a side effect of Norco, trouble

concentrating and drowsiness are side effects of Flexeril, and that Turner
complained of all three symptoms. (Id. at 8.)
While it is true that an ALJ is required to consider the side effects of
medication when there is evidence that they cause significant symptoms, see Binion
v. Shalala, 13 F.3d 243, 247 (7th Cir. 1994), here the record does not indicate that
any alleged forgetfulness or swelling interferes with her daily activities or her
ability to work. Nor has Turner pointed to evidence showing that these side effects
contribute to the effects of her other symptoms. It is Turner’s burden to establish
the severity of her symptoms, see Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000),
but as the ALJ pointed out, there is “little indication in the medical records of
[Turner] being forgetful because of medication” or of “any significant problems with
swelling[] due to use of Norco . . . .” (A.R. 44-45.) Although the record shows that
Turner complained of occasional swelling in her feet, she does not point to any
doctor’s reports stating that the swelling is functionally limiting. (See id. at 539.)
Similarly, the only support Turner offers for experiencing forgetfulness and
severe drowsiness is her own testimony, which the ALJ found to be less than
credible. For evidence of forgetfulness, Turner cites to her own statement that she
sometimes needs a reminder to go places, which fails to indicate significant memory
impairment. (See id. at 248.) She claims that she has to lie down for several hours

26

a day because of fatigue, but there is no other evidence to corroborate her
allegations. (See id. at 66.) Absent additional evidence of Turner’s alleged side
effects or some evidence that they are functionally impairing, the court finds the
ALJ sufficiently supported his decision not to incorporate these side effects into her
RFC determination.
C.

Credibility Analysis
Turner argues that in addition to using “boilerplate” language, the ALJ erred

by finding her not credible because she worked at her sister’s popcorn shop from
May 2006 to July 2009. (See R. 20, Pl.’s Mem. at 10-11.) Turner has a particularly
high hurdle to overcome in challenging the ALJ’s credibility determination because
this court may only overturn an ALJ’s credibility assessment if it is “patently
wrong.”

See Skarbek, 390 F.3d at 504-05.

This court will not substitute its

judgment regarding the claimant’s credibility for the ALJ’s, and Turner “must do
more than point to a different conclusion that the ALJ could have reached.” Jones
v. Astrue, 623 F.3d 1155, 1162 (7th Cir. 2010).

Put simply, this court will not

disturb the ALJ’s credibility determination unless it is “unreasonable or
unsupported.” See Getch v. Astrue, 539 F.3d 473, 483 (7th Cir. 2008).
The court finds that the ALJ adequately supported his credibility
determination. Turner argues that the ALJ failed to differentiate between “being
able to work a few hours a week and having the capacity to work full time.” (R. 20,
Pl.’s Mem. at 10 (quoting Larson v. Astrue, 615 F.3d 744, 752 (7th Cir. 2010)
(internal quotations omitted)).) But as the ALJ pointed out, Turner indicated in a

27

January 2010 work history report that she worked at the popcorn store eight hours
a day, seven days a week. (A.R. 43, 232, 238.) She also testified at the May 2011
hearing that she worked there five days a week. (Id. at 59.) The ALJ thus had
ample reason to conclude that Turner worked at the popcorn shop full-time.
The court also agrees with the Commissioner that in considering Turner’s
work history, the ALJ did not simply equate Turner’s past ability to work with a
present ability to work. (See R. 25, Def.’s Mem. at 6.) Rather, the ALJ found the
nature of her job at the popcorn shop inconsistent with her alleged limitations.
(A.R. 43.) For example, the ALJ pointed out that Turner testified she could not
cook, and yet she was able to stand for eight hours a day while working at her
sister’s shop.

(Id. at 238.)

Turner also reported that her job included lifting,

carrying, and packing boxes. (Id.) Both times she applied for benefits, Turner
alleged disability since September 2007, but she was able to work full-time until
July 2009 when the popcorn shop went out of business. (See id. at 43, 59.)
The ALJ provided numerous other reasons for finding Turner less than
credible. For example, he noted that at first she said she last worked in 2005, but
then testified that she worked at the popcorn shop after 2005. (Id. at 43, 58-59.)
Turner testified to having emergency room-level pain on a typical day and going to
the emergency room every other week, but the record does not support her
testimony. (Id. at 44, 60.) At her March 2010 consultative examination Turner
reported “doing well” until she “started to have severe pain in her low back area” in
October 2009, which was well after her alleged disability onset date of September

28

2007. (Id. at 43-44, 563.) Turner testified that she attended about a month of
physical therapy four months prior to the hearing, but there is no record of this
therapy. (Id. at 44, 64.) The court finds it was not patently wrong for the ALJ to
find that inconsistencies between Turner’s statements and the record detracted
from her credibility. See Skarbek, 390 F.3d at 504-05; Jones v. Astrue, 623 F.3d
1155, 1161 (7th Cir. 2010).
Furthermore, the ALJ made reference to Turner’s demeanor during the
hearing.

The Seventh Circuit has acknowledged that scrutinizing a claimant’s

conduct is problematic because the claimant might manipulate her demeanor to
display discomfort.

See Powers v. Apfel, 207 F.3d 431, 436 (7th Cir. 2000).

Nonetheless, it has “repeatedly endorsed the role of observation in determining
credibility.” Id. (collecting cases). Here, the ALJ observed that Turner “was able to
participate in the hearing without any overt pain behavior,” and that she did not
appear distracted.

(A.R. 45.)

The court affords his subjective assessment

substantial deference because it is based on the kind of intangible elements that
only the ALJ is in a position to observe. See Butera v. Apfel, 173 F.3d 1049, 1055
(7th Cir. 1999); see also Diaz v. Chater, 55 F.3d 300, 308 (7th Cir. 1995).
The ALJ did, however, make some errors in other parts of his credibility
assessment. For example, the ALJ mischaracterized Turner’s testimony when he
discredited her because she “goes to the grocery store” and said she “washed
dishes.”

(A.R. 43, 45.)

But Turner actually testified that she sits in the car

whenever she and her sister go to the grocery store, and that although she tries to

29

wash dishes, she cannot bend or lift much. (Id. at 63-64, 66-67.) The ALJ also said
that Turner did not renew her driver’s license “because she had unpaid toll tickets,”
(id. at 45), but her testimony indicates that the primary reason she no longer drives
is because of her “sickness,” (id. at 68).
The ALJ also wrote that Turner reported having to “brace herself with a wall
or nightstand, but she was ambulatory on many examinations.” (Id. at 44.) Turner
actually reported that she has to brace herself when getting out of bed in the
morning. (See id. at 244.) The ALJ pointed out that Turner said she used a cane
and “there is no evidence that a cane has been prescribed.” (Id. at 44.) But canes do
not require a prescription, so whether a doctor prescribes a cane is not probative of
whether a claimant needs to use one in the first place. See Parker v. Astrue, 597
F.3d 920, 922 (7th Cir. 2010) (characterizing as “absurd” an ALJ’s suspicion
stemming from claimant’s use of cane without prescription).
Despite these missteps, the ALJ’s other conclusions regarding Turner’s
credibility were reasonable and sufficiently supported. See Getch, 539 F.3d at 483.
“Not all of the ALJ’s reasons must be valid as long as enough of them are.” Halsell
v. Astrue, 357 F. Appx. 717, 722-23 (7th Cir. 2009)). But even though this court
finds that the ALJ’s credibility assessment is not a basis for remand, remand is still
necessary to address the ALJ’s inadequate listing analysis and the other concerns
identified above.

30

Conclusion
For the foregoing reasons, Turner’s motion for summary judgment is granted,
the Commissioner’s is denied, and the case is remanded for further proceedings
consistent with this opinion.
ENTER:

____________________________________
Young B. Kim
United States Magistrate Judge

31