Fitzpatrick v. Astrue
Filing
32
MEMORANDUM Opinion and Order Signed by the Honorable Michael T. Mason on 6/30/2014.(rbf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARGARET FITZPATRICK,
)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN, Acting
)
Commissioner of Social Security,1
)
)
Defendant. )
No. 13 CV 0069
Honorable Michael T. Mason
MEMORANDUM OPINION AND ORDER
Michael T. Mason, United States Magistrate Judge:
Claimant, Margaret A. Fitzpatrick (“Claimant” or “Fitzpatrick”), brings this motion
for summary judgment [18] seeking judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”). The Commissioner denied
Fitzpatrick’s claim for disability insurance benefits under Sections 216(i) and 223(d) of
the Social Security Act (“SSA”), 42 U.S.C. §§ 216(i) and 223(d). The Commissioner
filed a cross-motion for summary judgment [29], asking the Court to affirm her decision.
This Court has jurisdiction to hear this matter pursuant to 42 U.S.C. § 405(g). For the
reasons set forth below, Fitzpatrick’s motion for summary judgment [18] is granted, and
the Commissioner’s motion for summary judgment [29] is denied. The case is
remanded for further proceedings consistent with this opinion.
1
Carolyn W. Colvin became the Acting Commissioner of Social Security on February
14, 2013. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, Carolyn W.
Colvin is substituted for Commissioner Michael J. Asture as defendant in this suit.
I.
BACKGROUND
A.
Procedural History
Fitzpatrick filed an application for disability insurance benefits on December 1,
2009, alleging a disability onset date of June 20, 2009. (R. 18.) Claimant alleged she
was disabled as a result of diabetes mellitus, hypertension, obesity, lumbar
degenerative disc disease (“DDD”), osteoarthritis (“OA”) of the bilateral knees, coronary
artery disease (“CAD”), and sleep apnea. (R. 20.) Her application was initially denied
on March 4, 2010 and again on June 3, 2010 after a timely request for reconsideration.
(R. 56, 57.) Thereafter, on July 2, 2010, Fitzpatrick requested a hearing, which was
held on June 27, 2011 before Administrative Law Judge Karen Sayon (“ALJ” or “ALJ
Sayon”). (R. 18, 25, 30.) On July 12, 2011, ALJ Sayon issued a written decision
denying Fitzpatrick’s request for benefits. (R. 18-25.) Fitzpatrick filed a timely request
for review, which the Appeals Council denied on November 16, 2012. (R. 1-6.) The
ALJ’s decision denying benefits was adopted as the final decision by the Commissioner.
See Zurawski v. Halter, 245 F.3d 881, 883 (7th Cir. 2001). Fitzpatrick subsequently
filed this action in the District Court.
B.
Medical Evidence
On May 17, 2006, Fitzpatrick underwent a Myocardial Perfusion Scan and a
Stress Cardiolite at Advocate Christ Medical Center. (R. 247-48.) These tests revealed
an “apparent anterolateral defect” and “mild nondiagnostic EKG changes at peak
stress.” (Id.) On May 24, 2006, Fitzpatrick had a cardiac status evaluation. (R. 233.)
During this evaluation, Claimant complained of “feeling more fatigued and tired
2
recently.” (Id.) Claimant also reported that on some days she could walk “about one to
two blocks without any chest pain,” and that she had quit smoking one month prior to
the visit. (Id.) The evaluator noted that “patient’s recent 2-D echocardiography was
relatively unremarkable; however, the patient’s Cardiolite stress test revealed a possible
anterolateral defect of the anterolateral wall…” and noted that “attenuation needs to be
considered also.” (Id.)
In June of 2006, Fitzpatrick had three cardiac procedures at Advocate Christ
Medical Center. (R. 246.) They included a selective coronary angiography, left
ventricular angiography, and an angioseal administration. (Id.) The procedures were
completed without any complications and the following observations were noted by
cardiologist Sunitha R. Avula, M.D. (“Dr. Avula”): “minimal luminal irregularities of the
right coronary artery in the range of 10% to 20% but no critical stenosis, tortuous
coronary arteriography, and preserved left ventricular systolic function.” (Id.)
On September 6, 2006, Nasser Zakieh, M.D. (“Dr. Zakieh”) saw Fitzpatrick for a
follow up and to review her sleep study. (R. 245.) Dr. Zakieh noted that during her last
visit, Fitzpatrick’s “apnea hypopnea index” was 6.4 with a minimum oxygen saturation of
72%. (Id.) He also noted that Fitzpatrick may need oxygen supplementation and that
she may suffer from chronic obstructive pulmonary disease due to her history of heavy
smoking. (Id.) Dr. Zakieh recommended that Fitzpatrick lose weight and participate in a
continuous positive airway pressure titration sleep study. (Id.)
Fitzpatrick’s blood tests from June 2, 2008, indicated that she had a suboptimal
glycemic control level of 12.3%.2 (R. 258.) Fitzpatrick had additional blood tests on
2
Good to fair control is 7% - 8%. (R. 258.)
3
April 15, 2009, which indicated that she again had a suboptimal glycemic control level of
14.7%. (R. 278.) Another blood test in January of 2010 indicated her glycemic control
was 13%. (R. 275).
On May 28, 2009, Dr. Francis Jamilla, performed a pulmonary function test on
Fitzpatrick to evaluate her shortness of breath. (R. 255.) Spirometry testing suggested
a low FVC3, a normal FEV-14, and a supranormal FEV-1/FVC5 ratio. (Id.)
On January 4, 2010, Claimant visited Dr. Avula for a follow-up appointment, and
to have her disability forms signed. (R. 271.) During this visit, Fitzpatrick reported knee
and back pain, walking restrictions, smoking one pack of cigarettes a day and that she
“didn’t go back for her CPAP,” machine to treat her sleep apnea. (Id.) Claimant also
reported dyspnea with exertion, but the physician noted that Fitzpatrick did not have
chest pain or palpitations. (Id.)
On January 26, 2010, Fitzpatrick again visited Advocate Christ Medical Center
and complained of pain in her hip, back, and knee, and of her inability to stand for long
periods of time. (R. 269.) She further explained that she took Ibuprofen and Tylenol to
help alleviate this pain. (Id.) Fitzpatrick also stated that she needed her scooter to
3
Forced Vital Capacity. This is the total volume of air expired after a full inspiration.
Patients with obstructive lung disease usually have a normal or only slightly decreased
vital capacity. Patients with restrictive lung disease have a decreased vital capacity.
4
Forced Expiratory Volume in 1 Second. This is the volume of air expired in the first
second during maximal expiratory effort. The FEV-1 is reduced in both obstructive and
restrictive lung disease. The FEV-1 is reduced in obstructive lung disease because of
increased airway resistance. It is reduced in restrictive lung disease because of the low
vital capacity.
5
The FEV-1/FVC ratio “is the percentage of the vital capacity which is expired in the
first second of maximal expiration. In healthy patients, the FEV-1/FVC is usually around
70%. In patients with obstructive lung disease, FEV-1/FVC decreases and can be as
low as 20-30% in severe obstructive airway disease. Restrictive disorders have a near
normal FEV-1/FVC.” Https://meded.ucsd.edu
4
travel long distances. (R. 270.) During this visit, Dr. Avula ordered x-rays of
Fitzpatrick’s back, hips and knees. (R. 281-83.) Dr. Avula’s review of Fitzpatrick’s back
x-ray revealed “lumbar spondylosis with facet arthritis” and “degeneration of the L5-S1
disc.” (R. 281.) Dr. Avula noted that Fitzpatrick’s hip x-ray indicated that there were
vascular calcifications, “no significant bony or soft tissue pathology,” and “inferior lumbar
spondylosis.” (R. 282.) Dr. Avula’s review of Fitzpatrick’s knee x-rays also revealed
vascular calcifications with a finding of “osteoarthritic changes in the knees greater on
the right.” (R. 283.) The main point of this visit was “to have disability forms signed.”
(R. 269.)
On February 17, 2010, Dr. Mahesh Shah conducted an independent medical
evaluation at the request of the Bureau of Disability Determination Services for the State
of Illinois. (R. 299-302.) Dr. Shah noted that Claimant did not seem to suffer from acute
distress and walked into the office without an assistive device. (R. 300.) Dr. Shah also
noted that Claimant’s hips and knees revealed mild tenderness without any swelling or
deformity. (R. 301.) He also noted Claimant’s lumbar range of motion: flexion was
seventy degrees, extension was ten degrees, and straight leg raising was thirty degrees
bilaterally. (Id.) From these observations, Dr. Shah concluded that Claimant had a full
range of motion. (Id.) Additionally, he noted that Claimant’s gait was normal but slow,
that Claimant was able to heel-walk and toe-walk with some discomfort, and that
Claimant was able to partially squat. (Id.) Dr. Shah concluded that Fitzpatrick was
suffering from arthritis in the lumbar spine, hips, and knees, from high blood pressure
and diabetes, which are medically controlled, and from heart disease, which was
previously treated with an angioplasty with stenting. (R. 302.) Lastly, Dr. Shah noted
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that Claimant was mildly obese, which could exacerbate her medical problems. (Id.)
On March 3, 2010, Dr. Charles Kenney, an independent medical consultant,
issued a Physical Residual Functional Capacity Assessment (“RFC”). (R. 290-97.) Dr.
Kenney found that Claimant could stand and walk for up to six hours in an eight hour
workday and sit for a total of six hours in an eight hour workday, and he recommended
that she avoid concentrated exposure to fumes and odors. (R. 291, 294.) He stated
that Fitzpatrick’s “exam in its entirety was within normal limits.” (R. 292.) Dr. Kenney’s
conclusions were based on Claimant’s medical records; he did not examine her
personally. (R. 291.)
Fitzpatrick visited Oak Forest Hospital on April 22, 2010, for hyperglycemia,
hypertension, and to refill her prescription medications. (R. 329.) Claimant reported her
pain as zero. (R. 326.) Her hyperglycemia was reported at 720.29 and her
hypertension at 401.29. (R 329.) Fitzpatrick visited Oak Forest Hospital again on
August 28, 2010 to refill a prescription. (R. 355.) Claimant reported her pain as one out
of ten, and complained of having achy arms for the past year. (R. 353, 355.)
On May 26, 2010, Dr. Young-Ja Kim, a medical consultant, affirmed Dr. Kenney’s
RFC issued on March 3, 2010. (R. 305.) Dr. Kim noted “claimant indicates no
worsening of impairments, no new limitations, no new allegations, an updated treating
source, and no changes in ADLs.” (Id.)
On November 25, 2010, Fitzpatrick again visited Oak Forest Hospital for a refill of
her prescription medication. (R. 362.) At this visit, she reported a pain level of three on
a scale of 1 to 10, with ten being the worst. (Id.) Her primary concern during this visit
was pain and swelling in both feet. (R. 365.) Claimant visited Oak Forest Hospital
6
again on February 25, 2011 for another refill of her prescription medications. (R. 374.)
Her pain level was not recorded during that visit. (R. 372, 373.)
C.
Claimant’s Testimony
At the time of the June 27, 2011 hearing, Fitzpatrick, a sixty-year old woman,
weighed 240 pounds and lived with her brother. (R. 37.) Fitzpatrick testified that she
completed tenth grade high in high school and that she had experience as a hospital
housekeeping supervisor. (R. 37-38.) Fitzpatrick had a driver’s license and testified
that she had no problems driving. (R. 37.)
Fitzpatrick testified that because of issues with her back, hip, and feet, she has
been unable to work since June of 2009. (R. 42.) Fitzpatrick testified that her back
problems, which began in 2008, worsened in 2009 and 2010. (Id.) Fitzpatrick also
testified that she had swelling and numbness in her feet daily and pain in her back and
hip. (R. 48.)
The Claimant testified that she used a motorized scooter for the last five years
that she worked at the hospital. (R. 39.) Claimant also testified that, although she did
not have a prescription for the scooter, she used it every day at her prior job as a
hospital housekeeper. (R. 39-40.) Fitzpatrick testified that she used the scooter at work
because she could not do all the walking required by her position. (R. 39.) Claimant
testified that, without the scooter, she can only walk half a block or stand for about five
minutes before her knees, hips, and back start hurting, and she must sit down to rest.
(R. 40.) Claimant also testified that for the past year, she relied on a cane when walking
short distances and when her scooter is not available. (R. 42.)
Additionally, Fitzpatrick testified about her neuropathy, diabetes, and shortness
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of breath. (R. 43-45.) Regarding her neuropathy, Claimant testified to having
symptoms of numbness and sharp pains at night for approximately the past three years.
(R. 43.) Regarding her diabetes, Claimant testified that she did not always follow her
diet, but checked her sugars daily, and complied with all of her prescriptions. (R. 4344.) She also testified to experiencing breathing problems, specifically shortness of
breath, when walking. (R. 44.) Claimant also testified to smoking about a pack and a
half of cigarettes a day. (Id.)
Claimant testified about her daily activities. (R. 45-48.) Fitzpatrick described a
typical day as waking up, eating breakfast, and alternating between sitting in a chair and
lying down due to her back pain. (R. 45-46.) She has no hobbies, and keeps herself
occupied by watching television. (R. 45-46.) Fitzpatrick testified that she can do chores
such as cleaning, washing dishes, and laundry for approximately five minutes at a time.
(R. 45-46.) Fitzpatrick indicated that she no longer has the energy required for a fulltime job and has to take naps during the day as she is not able to sleep through the
night. (R. 47-48.)
D.
Vocational Expert’s Testimony
Roy Pagello (“VE”), a vocational and rehabilitation consultant also testified at
Fitzpatrick’s hearing. (R. 49-54.) The VE reviewed Claimant’s file and was present
throughout the hearing. (R. 49.) The VE testified that Fitzpatrick worked as a head
hospital housekeeper for twenty-five years, which was a skilled position with a light level
of physical tolerance. (R. 50.) The VE also testified that housekeeping, within the
hospital setting, has a medium level of physical tolerance, but that Claimant performed
at a light level because of the accommodation which allowed her to use a motorized
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scooter. (Id.)
The ALJ asked the VE to determine if a hypothetical individual with the same
educational and work background as the Claimant, who is only able to perform light
work that involves no concentrated exposure to respiratory irritants, would be able to
find jobs such as her past work as a head hospital housekeeper. (Id.) The VE testified
that, yes, Claimant would be able to do her past work, both as performed by the
hypothetical person and as generally performed. (R. 50-51.) However, the ALJ and VE
noted that the role of head hospital housekeeper requires industry specific skills that are
not directly transferrable to other sedentary occupations. (R. 51.)
The ALJ also asked the VE if this same hypothetical individual would be able to
find a job as a hospital housekeeper if she required an accommodation of a motorized
scooter in order to do the job. (Id.) The VE responded that she would not be able to
find such a job. (Id.) The VE further stated that his testimony was consistent with the
information contained in the Dictionary of Occupational Titles (“DOT”). (Id.)
II.
LEGAL ANALYSIS
A.
Standard of Review
This Court must affirm the ALJ’s 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). Substantial evidence is more than a scintilla of evidence and
includes “relevant evidence that a reasonable mind might accept as adequate to
support a conclusion.” Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995)(quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). We must consider the entire
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administrative record, but we will not “re-weigh evidence, resolve conflicts, decide
questions of credibility, or substitute our own judgment for that of the Commissioner.”
Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003)(quoting Clifford v. Apfel, 227 F.3d
863, 869 (7th Cir. 2000)). We will “conduct a critical review of the evidence” and will not
let the Commissioner’s decision stand “if it lacks evidentiary support of an adequate
discussion of the issues.” Id. Though the ALJ “must build an accurate and logical
bridge from the evidence to his conclusion,” he need not discuss every piece of
evidence in the record. Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). The
ALJ must “sufficiently articulate [her] assessment of the evidence to ‘assure us that the
ALJ considered the important evidence … [and to enable] us to trace the path of the
ALJ’s reasoning.’” Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993)(per curiam)
(quoting Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985)).
B.
Analysis Under the Social Security Act
To be entitled to disability insurance benefits under the Act, the claimant must
establish that she is disabled. A person is disabled under the Act if “he or she has an
inability to engage in any substantial gainful activity by reason of a medically
determinable physical or mental impairment which can be expected to last for a
continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A).
In determining whether a claimant is disabled, the ALJ must consider the following five
step inquiry: “(1) whether the claimant is currently employed, (2) whether the claimant
has a severe impairment, (3) whether the claimant’s impairment is one that the
Commissioner considers conclusively disabling (“a listing-level impairment”), (4) if the
claimant does not have a conclusively disabling impairment, whether she can perform
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her past relevant work, and (5) whether the claimant is capable of performing any work
in the national economy.” Dixon, 270 F.3d at 1176. The claimant has the burden of
establishing a disability at steps one through four. Zurawski v. Halter, 245 F.3d 881,
885-86 (7th Cir. 2001). If the claimant reaches step five, the burden then shifts to the
Commissioner to show that “the claimant is capable of performing work in the national
economy.” Id. at 886.
The ALJ followed this five-step analysis, though she determined that she did not
need to reach step five. At step one, ALJ Sayon found that Fitzpatrick had not engaged
in substantial gainful activity since June 20, 2009, the alleged disability onset date. (R.
20.) At step two, the ALJ found that Claimant’s diabetes mellitus, hypertension, obesity,
lumbar degenerative disc disease, osteoarthritis of the bilateral knees, coronary artery
disease, and sleep apnea were severe impairments. (Id.) At step three, the ALJ
determined that Claimant did not “have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).” (R. 21.) Next,
the ALJ concluded that Fitzpatrick had the RFC to “perform light work as defined in 20
CFR 404.1567(b), involving no concentrated exposure to respiratory irritants.” (Id.) At
step four, the ALJ determined that Claimant was able to perform her past relevant work,
both as she performed it and as the job is generally performed. (R. 23.) As a result,
ALJ Sayon determined Fitzpatrick is not disabled and the analysis did not proceed to
step five. (R. 24.) The ALJ found that Claimant has not been under a disability from
June 20, 2009. (Id.)
C.
The ALJ Properly Analyzed the Medical Evidence
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Fitzpatrick argues that the ALJ failed to properly analyze the medical evidence.
Specifically, Claimant argues that the ALJ was required to resolve a conflict regarding
Claimant’s medical evidence, that the ALJ failed to consider that the state agency
doctors did not assess Claimant’s full medical records, and that the ALJ erred by
speculating about the opinions of Claimant’s physicians.
The ALJ is not required to address every piece of testimony and evidence in the
record. Diaz, 55 F.3d at 308. However, the ALJ cannot discuss only the evidence that
favors her ultimate conclusion. Id. at 307; Godbey v. Apfel, 238 F.3d 803, 808 (7th Cir.
2000). The Seventh Circuit has stated that “[w]here a claimant argues that there are
fatal gaps or contradictions in the administrative law judge’s opinion, thus appealing to
the important principle of administrative law that the agency provide a rational
articulation of the grounds of its decision, we give the opinion a commonsensical
reading rather than nitpicking at it.” Johnson v. Apfel, 189 F.3d 561, 564 (7th Cir. 1999).
First, Fitzpatrick argues that the ALJ was required to resolve the conflict posed
by the fact that she has flexion of 70 degrees and extension of 10 degrees and the fact
that state agency doctors opined that she has no postural limitations. However,
Claimant fails to direct the Court to evidence in the record which illustrates that these
two facts pose a conflict. In fact, this Court’s review of the record reveals that in
addition to finding that the Claimant has flexion of 70 degrees and extension of 10
degrees, the examining physician also noted that “the claimant had a fairly good range
of motion.” (R. 302.) Consequently, it seems no conflict exists, and that it was proper
for the ALJ to rely on the state agency doctor’s finding that Fitzpatrick had no postural
limitations even though she has some limits in flexion and extension. Because the
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record reflects that the ALJ properly considered the available medical opinions, this
Court cannot order a remand based on Claimant’s argument that an unresolved conflict
of medical evidence exists.
Next, Claimant argues that Dr. Kenney and Dr. Kim did not base their opinions
on her medical record in its entirety and that ALJ Sayon failed to evaluate the
supportability of their opinions. 20 C.F.R. § 404.1527(c)(3) requires an ALJ to consider
the supportability of a medical opinion when deciding what weight to give that medical
opinion. The more consistent an opinion is with the Claimant’s record, the more weight
the opinion will receive. 20 C.F.R. § 404.1527(c)(4). Claimant argues that there is no
evidence indicating that Dr. Kenney and Dr. Kim considered treating records from Dr.
Avula. Claimant, however, fails to identify what in the record confirms that Dr. Kenney
and Dr. Kim did not base their opinions on the Claimant’s entire medical record.
Claimant also fails to point to medical evidence that discredits their medical opinions.
Nor has she offered a treating physician’s opinion that contradicts opinions of the state
agency doctors. Because the ALJ’s decision to give the state agency doctors’ opinions
great weight is supported by substantial evidence and because an ALJ is not required to
provide a complete recitation of every piece of evidence, we see no reason to remand
on this issue. Diaz, 55 F.3d at 305.
Finally, Claimant argues that the ALJ erred by speculating about the opinions
that Claimant’s treating physicians may have. Specifically, the Claimant believes that
ALJ Sayon improperly speculated that Claimant’s treating doctor did not support her
disability claim because the disability forms that were presented to the doctor “were not
submitted for inclusion into the record.” (Pls. Brief at 9.) However, Claimant’s argument
13
does not show that the ALJ committed any legal error.
Claimant argues that White v. Apfel requires the Court to remand because,
“[s]peculation is, of course, no substitute for evidence, and a decision based on
speculation is not supported by substantial evidence.” 167 F.3d 369, 375 (7th Cir.
1999). In White, “[t]he ALJ speculated that the probate court might have released the
funds if Mrs. White had pursued the claim more ‘vigorously.’” Id. In White, the ALJ
arrived at this conclusion without any evidence from the record. Here, however, the
Commissioner correctly points out that, “the ALJ appropriately considered Dr. Auula’s
[sic] notations regarding Plaintiff’s presentation for disability and with disability forms.
She reasonably concluded that if Dr. Auula [sic] had completed such forms and
supported Plaintiff’s claim, Plaintiff would have submitted completed forms.” (Defs.
Resp. at 6.) White is distinguishable from the instant case because the ALJ in White
improperly speculated, without any evidence, on a possible outcome, where ALJ Sayon
properly arrived at an inference based on Plaintiff’s medical records. White does not
apply here because ALJ Sayon made an inference based on evidence rather than a
mere speculation. Therefore, we see no need to remand on this issue.
D.
The ALJ Improperly Assessed Claimant’s Credibility
Fitzpatrick argues that the ALJ improperly assessed her credibility by failing to
consider her impairments in the aggregate, improperly considered her lack of
prescription for her assistive ambulating devices, and improperly considered her failure
to comply with medical treatment without probing Claimant for this failure. Fitzpatrick
argues that ALJ Sayon improperly dismissed her allegations of pain, fatigue, and
difficulties with standing, walking, and stair climbing. This Court agrees.
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An ALJ may not disregard a claimant’s statements about the intensity and
persistence of pain solely because they are not supported by objective medical
evidence. SSR No. 96-7p at 3. The Seventh Circuit has reiterated that “a lack of
medical evidence alone is an insufficient reason to discredit testimony.” Villano v.
Astrue, 556 F.3d 558, 562 (7th Cir. 2009). When assessing a claimant’s allegations of
pain, “an applicant’s disabilities must be considered in the aggregate.” Martinez v.
Astrue, 630 F.3d 693, 699 (7th Cir. 2011). Additionally, it may be the case that
sometimes “obesity or some other health condition merely aggravates a disability
caused by something else; it still must be considered for its incremental effect on the
disability….” Gentle v. Barnhart, 430 F.3d 865, 868 (7th Cir. 2005). The Seventh
Circuit has also explained that an “ALJ can appropriately consider a claimant’s daily
activities when assessing the alleged symptoms.” Craft v. Asture, 539 F.3d 668, 680
(7th Cir. 2008).
Here, the ALJ, in a conclusory manner, stated that Fitzpatrick’s “allegations are
not supported by the medical opinions of record or the objective medical evidence.” (R.
23.) ALJ Sayon did not articulate why the Claimant’s medical records did not support
her allegations of pain and in doing so, failed to “build an accurate and logical bridge
from the evidence to his conclusion.” Dixon, 270 F.3d at 1176. The ALJ failed to give
specific reasons for discrediting Fitzpatrick’s testimony of her alleged pain. Martinez,
630 F.3d at 697.
This same deficiency exists in the ALJ’s dismissal of Claimant’s allegations of her
limited ability to perform daily activities and ability to ambulate, without accounting for
Claimant’s impairments in the aggregate. ALJ Sayon mentioned Fitzpatrick’s obesity,
15
but the ALJ’s decision does not indicate that her conclusions were made in light of the
affect, if any, that Fitzpatrick’s obesity may have on her musculoskeletal impairments
and her ability to perform daily activities and her difficulties with standing, walking, and
stair climbing. The Commissioner failed to address this shortcoming in its response
brief.
In assessing Fitzpatrick’s credibility, the ALJ also improperly considered
Fitzpatrick’s lack of a medical prescription for her assistive ambulating devices and
Claimant’s failure to comply with medical treatment without probing her on this issue.
Fitzpatrick argues that “the ALJ failed to properly develop the record, and inquire
whether Plaintiff’s scooter, cane and walker use was indeed a ‘medical necessity.’”
(Pls. Brief at 14.) The Claimant is partially correct; the ALJ has a duty to develop the
record before determining the claimant is not disabled. 20 C.F.R. § 404.1545(a)(3).
However, the Claimant bears the burden of proving the case at steps one through four.
Briscoe v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005). Therefore, Claimant, through
the assistance of her counsel, was responsible for developing the record regarding her
need for a cane or scooter. But because Claimant’s need for these devices is not easily
ascertainable from the record, the ALJ should not have drawn an inference without a
proper inquiry. Before discrediting the Claimant for lacking a medical prescription for
her ambulating devices, the ALJ should have probed the Claimant’s alleged need for
these devices. It is unreasonable to discredit a Claimant’s use of an assistive
ambulatory device without a prescription, as a prescription is not required in order to
use a cane or a motorized scooter. Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010).
Similarly, the ALJ discredited Claimant because she failed to follow through with
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her prescription for a CPAP machine. The burden to develop the record regarding this
omission falls on the Claimant, but the ALJ should have at least attempted to determine
why Fitzpatrick opted to disregard the prescription, especially if she were going to use
that fact to evidence a lack of credibility.
Because the ALJ erred in improperly assessing Fitzpatrick’s credibility by failing
to consider Claimant’s impairments in the aggregate, improperly considering Claimant’s
lack of prescription for her assistive ambulating devices, and improperly considered
Claimant’s failure to comply with medical treatment without probing Claimant for this
failure, remand is warranted. On remand, the ALJ must make a proper inquiry into the
effect Fitzpatrick’s obesity has on her musculoskeletal impairments and her ability to
ambulate. Additionally, should the ALJ rely on the Claimant’s use of an assistive
ambulatory device without a prescription and her failure to comply with her physician’s
CPAP prescription to assess Claimant’s credibility, the ALJ must make a proper inquiry
as to these omissions.
E.
The ALJ Did not “Impermissibly” Substitute Her Lay Opinion For
That of the Physician
Fitzpatrick next argues that the ALJ erred by considering her assessment of the
entire medical record and state agency employee observations. The Social Security
Administration has explicitly stated that an ALJ “must also consider any observations
about the individual recorded by Social Security Administration employees during
interviews….” SSR No. 96-7p at 14. Here, Claimant argues that the ALJ improperly
relied on recorded observations made by a Social Security Administration Field Office
employee. However, SSR No. 96-7p directs ALJs to consider these observations in
17
making their credibility determinations. Thus, the ALJ did not err in considering state
agency employee observations.
Claimant also argues that the ALJ impermissibly substituted her own lay opinion
for that of the physician when analyzing the Claimant’s x-rays of her spine. Particularly,
the Claimant is troubled by the ALJ’s recitation of the evidence, stating, “x-rays of her
lumbar spine showed only lumbar spondylosis with facet arthritis and degeneration of
the L5-S1 disc” (emphasis added). (R.23.) Claimant reads this recitation of Claimant’s
medical records as the ALJ “implying the objective findings reported on x-ray were
insufficient to cause the symptoms and disabling effects reported.” (Pls. Brief at 12.)
Claimant’s argument is misplaced. We cannot speculate as to what the ALJ implied in
adding the adjective “only” to the physician’s findings of Claimant’s x-rays. Because the
ALJ did not substitute her lay opinion for that of the physician when determining
Claimant’s credibility, remand is not warranted for this issue.
F.
The ALJ Improperly Determined the Claimant’s RFC
Lastly, Claimant argues that the ALJ improperly determined Fitzpatrick’s RFC
because she failed to consider if Fitzpatrick’s obesity aggravates her sleep apnea and
musculoskeletal impairments, and how these aggravated impairments may limit
Fitzpatrick’s ability to engage in substantial gainful activity. This court finds that ALJ
Sayon properly considered the effect Fitzpatrick’s obesity has on her sleep apnea, but
that the ALJ failed to engage in a similar analysis of the effect Claimant’s obesity has on
her musculoskeletal impairments.
ALJ Sayon found that Fitzpatrick has the RFC to perform light work, involving no
concentrated exposure to respiratory irritants. Engaging in light work includes the ability
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to lift objects no more than twenty pounds occasionally or ten pounds frequently, a
significant amount of walking, and standing or sitting with some pushing and pulling of
arm or leg controls. If a Claimant is deemed able to engage in light work, he or she is
also deemed able to engage in sedentary work as well. 20 CFR 404.1567(b). In SSR
02-01p, the SSA outlines its policies regarding the role of obesity in disability claims.
SSR 02-01p requires an ALJ to consider obesity in determining whether an individual
has a medically determinable impairment. SSR 02-1p at 2. If there is no diagnosis of
obesity but the evidence includes clinical notes or other medical records showing
consistently high body weight, the ALJ should either consult a medical source, or as is
done in most cases, use her judgment “to establish the presence of obesity based on
the medical findings and other evidence in the case record.” SSR 02-01p at 9. Here,
ALJ Sayon conducted an individualized assessment and considered the cumulative
effects of obesity on the Claimant’s functioning and determined that her obesity was
severe.
ALJ Sayon acknowledged and discussed the effect of Claimant’s obesity on her
diagnosed sleep apnea, and explained that it was secondary to her obesity.
Additionally, the ALJ noted that Claimant did not follow through with her prescribed
treatment for her sleep apnea. Also, the record, including the Claimant’s testimony at
her hearing, is devoid of the reason why Claimant did not follow through with her
prescribed treatment. She cannot expect to be compensated for an ailment that she
has not attempted to treat. Remediable conditions are not a basis for an award. Barrett
v. Barnhart, 355 F.3d 1065, 1068 (7th Cir. 2004).
In contrast, we do not know what effect, if any, Claimant’s obesity has on her
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musculoskeletal impairments, as the ALJ’s analysis does not make mention of it. It may
be that the ALJ believed that Fitzpatrick’s obesity is remediable and not completely
disabling in itself, however, she made no mention of this and we cannot speculate. In
considering the Claimant’s ability to engage in light work, “the ALJ would have to
determine the effect of her obesity on that ability.” Gentle, 430 F.3d at 868. “For
example, someone with obesity and arthritis affecting a weight-bearing joint may have
more pain and limitation than might be expected from the arthritis alone.” SSR 02-1p. at
17. On remand, the ALJ must make a proper inquiry into Fitzpatrick’s ability to engage
in substantial gainful activity given the Claimant’s musculoskeletal impairments in
conjunction with the effects that her obesity may have on these impairments.
III.
CONCLUSION
For the reasons set forth above, Fitzpatrick’s motion for summary judgment [18]
is granted. The Commissioner’s motion for summary judgment [29] is denied. This
case is remanded to the Social Security Administration for further proceedings
consistent with this opinion. Additionally, the Commissioner, on remand, may want to
consider – especially in light of the testimony that the use of a scooter would actually
preclude past employment – whether it might be necessary to make findings at step
five. It is so ordered.
ENTERED:
_________________________
MICHAEL T. MASON
United States Magistrate Judge
Dated: June 30, 2014
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