Peterson v. Colvin

Filing 25

MEMORANDUM Opinion and Order Signed by the Honorable Michael T. Mason on 9/18/2014.(rbf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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

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) No. 13 C 3133
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) Magistrate Judge Michael T. Mason
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)

MEMORANDUM OPINION AND ORDER
MICHAEL T. MASON, United States Magistrate Judge:
Claimant James Peterson (“Peterson” or “claimant”) brings this motion for
summary judgment [17] seeking judicial review of the final decision of the Commissioner
of Social Security (“Commissioner”). The Commissioner denied Peterson’s claim for
disability insurance benefits under the Social Security Act (the “Act”), 42 U.S.C. §§
416(i) and 423(d). The Commissioner has filed a cross-motion for summary judgment
[22], asking that this Court uphold the decision of the Administrative Law Judge (“ALJ”).
This Court has jurisdiction to hear this matter pursuant to 42 U.S.C. § 405(g). For the
reasons set forth below, claimant’s motion for summary judgment is granted and the
Commissioner’s cross-motion for summary judgment is denied.
I.

BACKGROUND
A.

Procedural History

Peterson filed for disability insurance benefits in July of 2010. (R. 164-65.)
Peterson alleges that he has been disabled since December 2, 2009 due to right ankle

degenerative joint disease/osteoarthritis, left knee reconstruction, bicipital tendonitis,
rotator cuff tear, hypertension, chronic low back pain, and numbness in hands. (R. 87.)
Peterson’s application was denied initially on October 27, 2010, and again on
reconsideration on December 30, 2010. (R. 82-87, 92-96.) A hearing was held before
ALJ Patricia Supergan on July 6, 2011. (R. 38-73.) On October 13, 2011, the ALJ
issued a decision denying Peterson’s request for benefits. (R. 23-37.) Then, on
December 13, 2011, Peterson filed a request for review by the Appeals Council. (R.
15.) On February 27, 2013, the Appeals Council denied Peterson’s request for review,
making the ALJ’s decision the final decision of the Commissioner. (R. 1-7.) Peterson
subsequently filed this action in the District Court. The parties consented to this Court’s
jurisdiction pursuant to 28 U.S.C. § 636(c) [11].
B.

Medical History
1.

Treating Physicians

Peterson’s medical conditions relevant to the instant appeal began with a
diagnosis of de Quervain’s disease (an inflammation of tendons in the thumb that
extends to the wrist) in his right wrist in 2005. (R. 270.) He underwent a cortisone
injection in November 2006, which only helped temporarily. (Id.) On April 3, 2007, Dr.
Jerry Chow, noted that Peterson had a mild positive Finkelstein Test in his right wrist
and would consider surgical release if the pain increased. (R. 266.)
On October 3, 2007, Peterson underwent surgery to treat the de Quervain’s
disease in his right wrist. (R. 271-72.) During the pre-surgery evaluation, Dr. Chow
noted that Peterson’s head and neck examination were normal, as well as his lungs and
heart. (R. 270.) An x-ray of the right wrist showed a VISI-deformity, unrelated to the de
2

Quervain’s disease. (Id.) Two weeks after the surgery, on October 16, 2007, Peterson
reported to Dr. Chow that he was beginning to feel better, with the exception of some
stiffness in his right wrist. (R. 267.) Dr. Chow removed Peterson’s sutures and directed
him to undergo physical therapy. (Id.)
On April 16, 2008, Peterson began receiving treatment from Dr. Alexander
Michalow, an orthopedic physician, after complaining of right shoulder and upper arm
pain, and pain in his right ankle. (R. 287.) Dr. Michalow noted that Peterson had very
good rotator cuff and elbow flexion strength, “mild local ecchymosis,” little pain, and
minimal tenderness. (Id.) X-rays of the shoulder were unremarkable. (Id.) Dr.
Michalow concluded that Peterson suffered from a bicipital tendon rupture at the right
shoulder. (Id.) Dr. Michalow decided that, because the rupture was in the
non-dominant arm and resulted in no loss of function or strength, the problem did not
warrant surgery or further treatment beyond conservative care at that time. (R. 288.)
During the same appointment, Peterson told Dr. Michalow that he believed the
pain in his right ankle stemmed from a fracture caused by a high school injury that was
treated improperly. (R. 287.) Dr. Michalow determined that Peterson’s right ankle had
some reduction in range of motion, and “mild [but] chronic hypertrophic synovitic
changes.” (Id.) After reviewing an x-ray, Dr. Michalow concluded that Peterson
suffered from moderately severe degenerative joint disease in the right ankle. (Id.) He
advised Peterson to continue wearing appropriate footwear and taking over the counter
medication, and to consider a fusion if the pain increased. (R. 288.)

On May 29, 2009, Peterson sustained an injury to his left shoulder while working
3

as an electrician. (R. 289.) Dr. Michalow examined Peterson on June 8, 2009, and
observed a full range of motion, very good rotator cuff strength, and minimal pain. (Id.)
Peterson also told Dr. Michalow that pain from his shoulder injury had subsided and
required little medication. (Id.) Dr. Michalow ultimately concluded that Peterson
suffered a left bicipital tendon rupture and he advised Peterson to consider surgical
remedies in order to maximize strength. (R. 289-90.) Peterson indicated that, because
the tendon tear in his right shoulder had been doing well without surgery, he did not
want surgery at that time. (R. 289-90.)
Peterson returned for a follow up appointment with Dr. Michalow on July 13,
2009, reporting increased weakness upon reaching; he described his pain as “not that
bad” and reported that he was “getting by ok” at work. (R. 291.) Dr. Michalow opined
that the weakness suggested a complete left rotator cuff tear and directed Peterson to
undergo an MRI. (R. 291.) Peterson next visited Dr. Michalow on August 12, 2009. (R.
292.) At that time, a physical examination and the results of Peterson’s MRI led Dr.
Michalow to conclude that Peterson had indeed suffered a complete tear of his left
rotator cuff. (Id.) He advised Peterson to schedule reparative surgery. (R. 293.)
On December 3, 2009, Dr. Michalow performed surgery on Peterson’s left
shoulder. (R. 323-24.) The postoperative diagnosis indicated that Peterson had a left
shoulder rotator cuff tear with degenerative partial bicep tear and a degenerative labrum
tear. (R. 323.)
Dr. Michalow followed up on Peterson’s surgery with examinations on December
7 and December 14, 2009. (R. 295.) Peterson described his pain as “not bad,” and Dr.
Michalow noted that the shoulder was healing cleanly and on schedule. (R. 295-96.)
4

By his January 11, 2010 follow-up examination, Peterson had regained a 90-degree
range of motion in his left shoulder. (R. 297.) Dr. Michalow instructed Peterson on
stretching and told him he could perform only “desk light duty” if it was available. (R.
297, 353.) On February 8, 2010, Dr. Michalow concluded that Peterson’s range of
motion of the shoulder had returned to normal and, though his rotator cuff strength
remained weak, it had greatly improved since Peterson’s January 11, 2010
examination. (R. 298.) He referred Peterson for physical therapy and advised him to
remain off work unless light desk work became available. (Id.)
Peterson returned for follow-up visits on March 8, April 5, May 3, and June 2 of
2010. (R. 299-303.) Dr. Michalow continued to find Peterson’s range of motion in the
shoulder to be fully restored and noted continued improvement with the help of physical
therapy, despite some weakness in his left rotator cuff. (Id.) Dr. Michalow continued to
advise only light work duties if available, with no overhead reaching and a limited lifting
restriction. (Id.) The physical therapy notes show Peterson was making progress,
though at times he demonstrated, pain, diminished strength, and fatigue. (R. 325-43.)
At an appointment on June 14, 2010, Peterson complained of pain in his right
ankle, left knee, and lower back. (R. 305.) Upon physical examination, Dr. Michalow
observed swelling and reduced range of motion in the right ankle, tenderness in the
lumbosacral spine, with pain radiating to the right leg, and a positive straight leg test on
the right. (Id.) He observed good range of motion in the hips, but noted left thigh
numbness consistent with meralgia paresthica. (Id.) Ultimately, Dr. Michalow
concluded that Peterson suffered from osteoarthritis of the vertebral column, posttraumatic osteoarthritis of the ankle and foot, meralgia paresthetica, and sciatica. (Id.)
5

Dr. Michalow recommended braces and ice for the ankle pain, and a fusion as a last
resort. (R. 306.) For the leg numbness, he provided cortisone injections. (Id.) Dr.
Michalow also ordered an MRI. (Id.)
On June 21, 2010, Peterson returned to review the results of the MRI, which
showed a herniated disc at L5-S1, a smaller bulge at L4-5, and lesser degenerative
changes elsewhere in the spine. (R. 307, 318.) At that time, Peterson explained that
his right ankle pain was the major limiting factor for physical activity while on his feet.
(Id.) Dr. Michalow determined that Peterson’s right ankle might require surgery in the
future, but that his spinal changes were “not bad enough to consider surgery at this
point.” (R. 307-08.) Dr. Michalow also advised Peterson to “consider job change for
less physical activity.” (R. 308.) On July 7, 2010, Dr. Michalow concluded that
Peterson had recovered full range of motion in his left shoulder and exhibited “very
good” strength in his rotator cuff. (R. 309.)
Peterson underwent an EMG of his hands on July 8, 2010 with Dr. Ashraf Hasan.
(R. 320-22.) The EMG showed “[electrodiagnositc evidence of a mild sided carpal
tunnel syndrome . . . demyelinating in nature” and “electrodiagnostic evidence of a
moderate left sided carpal tunnel syndrome . . . demyelinating in nature.” (Id.) One
week later, on July 14, 2010, Peterson complained to Dr. Michalow of bilateral hand
pain. (R. 311.) He also continued to complain of ankle, back, and neck pain, and left
thigh numbness. (Id.) He explained that the injections only relieved his pain for a
couple of days. (Id.) Dr. Michalow agreed that Peterson suffered from carpal tunnel
syndrome in both hands, but more severely in his left dominant hand. (R. 312.) Dr.
Michalow explained the need for surgery in the left hand due to progressed nerve
6

slowing. (Id.) Dr. Michalow gave Peterson another cortisone injection in his left hip and
advised him to continue his home exercise program. (Id.) At that time, Peterson had
been released to work after a functional capacity evaluation, but there was apparently
no work available at the released level. (Id.)
A few weeks later, Dr. Michalow noted that Peterson was not able to do heavy
“standing/walking” type work due to his progressive osteoarthritis and recommended
that he consider vocational rehabilitation in the future to do “light duty type work.” (R.
314.) Dr. Michalow again recommended surgery for Peterson’s left carpal tunnel
syndrome, which Peterson was to call to schedule. (Id.)
Dr. Michalow’s most recent medical report, dated August 9, 2010, listed
Peterson’s active problems as including: “ankle joint pain, bicipital tendonitis, complete
tear of the rotator cuff tendon, foreign body in the eye, herniated disc, localized
osteoarthritis of the ankle [and] foot, localized primary osteoarthritis of the ankle,
localized primary osteoarthritis of the vertebral column, meralgia paresthetica, rotator
cuff tendonitis, rupture of the bicipital tendon, sciatica, superior glenoid labrum lesion.”
(R. 315.) As far as the shoulder was concerned, Dr. Michalow stated that Peterson
could return to work, with some limitations, but acknowledged that Peterson remained
off work due to his other joint problems. (R. 315-16.)
Dr. Hasan examined Peterson twice in August 2010. (R. 374-77.) Peterson
continued to complain of low back pain and left extremity pain, worsened when walking
or standing. (R. 376.) Dr. Hasan reviewed the June 2010 MRI of the lumbar spine.
(Id.) Upon examination, Dr. Hasan noted that Peterson was able to “get on and off the
exam table without assistance” as well as “heel walk and toe walk,” though he noted an
7

antalgic gait. (R. 374, 377.) Tenderness was noted across the lower lumbar paraspinal
muscles, as was pain upon certain motions. (Id.) Dr. Hasan assessed “chronic lower
back pain, degenerative disc disease of the lumbar spine, facet arthopathy of the
lumbar spine, and sciatica.” (R. 377.) Dr. Hasan administered steroid injections, and
recommended physical therapy and that he continue to take Norco. (Id.) Peterson did
not want to evaluate surgical options. (R. 374.)
Peterson returned to see Dr. Hasan on October 18, 2010. (R. 518.) He reported
no relief from the steroid injections. (Id.) He had started physical therapy, but was
unsure whether it was helping. (Id.) He reported taking Hydrocodone three times per
day, as well as Naprosyn with mild relief of his symptoms. (Id.) Additional steroid
injections were administered. (R. 523-24.) At a follow up appointment on October 28,
2010, he reported only mild relief from the injections and “some relief” from physical
therapy. (R. 515.) He described his back pain as constant in nature, and explained that
his leg pain worsened after standing longer than twenty minutes. (Id.) The physical
examination again revealed a slightly antalgic gait, some tenderness in the spine, and
pain upon maneuvering. (R. 515-16.) Injections were again administered and Dr.
Hasan continued to recommend that Peterson remain off work during this time period.
(R. 517, 521-22.) No significant relief was reported at the November 17, 2010
appointment. (R. 513.)
By December 1, 2010, Peterson had finished physical therapy. (R. 510.) X-rays
taken that day showed degenerative spondylosis with no acute bony abnormality. (Id.)
Range of motion of the cervical spine was limited for flexion and lateral rotation
bilaterally. (Id.) At this time, Dr. Hasan had a lengthy conversation with Peterson
8

regarding possible spinal cord stimulation. (Id.) He ordered an MRI and recommended
that Peterson remain off work. (Id.)
Peterson visited neurosurgeon Dr. Charles Harvey on January 27, 2011.1 (R.
553-54.) The physical examination revealed normal results other than a diminished
pinwheel sensation in the left anterior thigh. (R. 553.) Dr. Harvey reported that a
January 17, 2011 lumbar CAT scan showed moderate spinal stenosis at the L4-5 level
with broad based disc bulging, and mild broad based disc bulging at the L5-S1 level with
degenerative disc disease at the L5-S1 level. (Id.) A myelogram showed a mild
extradural mass effect at the L1-L2 level and a prominent extradural mass effect
anteriorly at the L4-L5 level. (Id.) A cervical MRI from December 2010 revealed very
minimal posterior disc bulge at C3-4 and minimal generalized disc annular bulging at the
C6-7 level. (R. 554.) Results of a January 20, 2011 EMG were normal. (R. 553.)
Based on these results and his examination, Dr. Harvey determined that surgery, in
particular a posterior lumbar laminectomy and foraminotomy, would be the best option
for Peterson. (R. 554.)
On January 31, 2011, Dr. Hasan completed a questionnaire on residual
functional capacity. (R. 544-46.) Dr. Hasan explained that he had first treated Peterson
in August of 2010 for his low back pain, left lower extremity pain, and burning sensation.
(R. 544.) When asked to list all clinical findings and laboratory results regarding
Peterson’s condition, he cited to a January 2011 EMG, a December 15, 2010 MRI, and

1

Dr. Harvey’s records were not presented to the ALJ prior to the hearing or her decision. We
include a description here because Peterson has raised an issue regarding the Appeals Council’s
treatment of those records.

9

the June 15, 2010 MRI. (Id.) According to Dr. Hasan, Peterson can walk one city block
before stopping, stand for twenty to thirty minutes, sit for one hour, alternate sitting or
standing for thirty minutes, and must lie down during the day to take pressure off his
neck and back. (R. 545.) He concluded that Peterson can lift twenty-one to fifty pounds
and can carry eleven to twenty pounds, but that pushing and pulling causes pain in the
upper and lower back. (Id.) He further opined that Peterson would have difficulty
bending, squatting, kneeling, and turning parts of his body. (R. 546.) In Dr. Hasan’s
opinion, Peterson’s pain was “constant in nature” and “consistent with MRI” results.
(Id.)
On May 13, 2011, Dr. Mukund Komanduri, an orthopedic physician, performed
an independent medical evaluation of disability as part of Peterson’s workers
compensation claim. (R. 547-50.) In addition to examining Peterson, Dr. Komanduri
reviewed various records from Peterson’s treating physicians. (R. 547.) At the
appointment, Peterson claimed he could sit continuously for one hour, walk one block
without stopping, and carry twenty pounds without difficulty. (R. 548.)
Upon physical examination, Dr. Komanduri observed some limited cervical range
of motion, mild impingement upon shoulder motion, pain upon certain lumbar motion,
restricted range of motion of the right ankle, and “obvious right wrist de Quervain’s
tenosynovitis.” (Id.) Dr. Komanduri confirmed that imaging records showed severe
osteoarthritis of the right ankle, a left rotator cuff tear, a thoracic disc herniation, and
multi-level degenerative disc disease of the lumbar spine. (Id.)
Dr. Komanduri concluded that Peterson suffered from “multiple correctable
musculoskeletal injuries” that resulted in Peterson being “functionally capable of sitting
10

for one hour at a time.” (R. 549.) With appropriate restrictions, he believed that
Peterson could work at a sedentary position, although with limited functional capacity
due to his limitations in his ability to walk and his hand limitations. (Id.) He also noted
that Peterson would require substantial vocational rehabilitation in light of the fact that
he had only ever worked as an electrician. (Id.) Further, he concluded that Peterson’s
severe pain and “need for constant narcotics” make him nonfunctional in a job
environment on a daily basis. (Id.) Ultimately, Dr. Komanduri concluded that Peterson
could only work part-time (four hours) in a sedentary position and was thus unable to
return to work as a union electrician and was temporarily qualified for total disability
from the union. (Id.) However, Dr. Komanduri opined that, once Peterson’s back and
hand problems were surgically addressed, he would be able to work in a sedentary to
light duty position. (Id.) He also questioned why Peterson was delaying surgical
intervention. (R. 550.)
As of June 8, 2011, Dr. Hasan continued to recommend that Peterson stay off
work. (R. 551.)
2.

Agency Consultants

On October 25, 2010, Dr. Francis Vincent conducted a physical residual
functional capacity (“RFC”) assessment. (R. 497-504.) Dr. Vincent determined that
Peterson could occasionally lift up to twenty pounds, frequently lift up to ten pounds;
could stand for at least two hours and sit for six hours in an eight hour day; and had no
limits on his ability to push or pull. (R. 498.) Dr. Vincent also determined that, as a
result of his lower back and knee complaints, Peterson could occasionally climb ramps
or stairs, but never ladders, ropes, or scaffolds; could frequently balance and crouch;
11

and could occasionally stoop, kneel, and crawl. (R. 499.) Dr. Vincent found no
limitations on Peterson’s hand, finger, or reaching manipulations, nor any visual or
communicative limitations. (R. 500-501.) He did conclude that Peterson should avoid
hazardous machinery due to his diminished physical agility. (R. 501.)
In the narrative portion of his report, Dr. Vincent reviewed Peterson’s activities of
daily living reports, as well as the August 2010 medical records of Dr. Hasan. (R. 504.)
Dr. Vincent concluded that Peterson’s claims regarding the degree of his pain deserved
only partial credibility, as the “reported degree and frequency of pains are more than
objective evidence can support.” (R. 504.) Dr. Barry Free affirmed Dr. Vincent’s
findings on December 28, 2010. (R. 540-42.)
C.

Peterson’s Testimony

Peterson appeared with counsel at the hearing before the ALJ and testified as
follows. Peterson was born on January 9, 1964, making him 47 years old at the time of
the hearing. (R. 42-43.) Peterson completed high school and was certified as an
industrial electronics technician in 1983 after attending a trade school. (R. 43, 54.)
Peterson lives with his wife in a two-story house, though his bedroom is on the first
floor. (R. 54.)
Peterson worked as an electrician for 27 years, last working on December 3,
2009 in Kankakee, Illinois. (R. 43-45.) In his job as an electrician, Peterson supervised
other employees, ran conduit, operated a jackhammer and control panels, and
performed other activities in the electrical field. (R. 44.) He was on his feet most of the
day, and at times lifted up to 100 pounds and operated heavy machinery for up to eight
hours. (R. 44-45.)
12

Next, Peterson testified about his various medical problems. He explained that
his “worst problem” was his upper and lower back. (R. 45.) In his lower back, he has
two herniated discs and two pinched nerves. (Id.) If he sits too long, he feels a “needly”
or sharp pain down his right sciatic nerve. (Id.) Additionally, Peterson describes a
“numbing, burning . . . bleeding feeling” if he stands for more than twenty to thirty
minutes that can only be relieved by sitting or laying down. (R. 45-46.) Peterson further
testified that his upper back, or neck, has “a couple bulged disks” currently being treated
by Dr. Hasan. (R. 46.) He explained that it feels like his head is too heavy for his neck,
and he often has to relieve the pain by lying down. (Id.) Reading and looking down
exacerbate his neck problem. (R. 47.) Peterson also has difficulty sleeping more than
three or four hours a night due to the pressure in his neck. (R. 46-47.)
In May of 2009, Peterson tore his left rotator cuff and his left bicep muscle while
he was pulling wire. (R. 45.) On a separate occasion, he tore his right bicep muscle.
(R. 49.) These injuries cause cramps when he does any lifting or pulling. (Id.)
Peterson also testified that his right ankle was fractured and improperly treated in high
school. (Id.) As of 2002, he suffered from “bone-on-bone osteoarthritis” in his right
ankle, which causes a nine out of ten “needly, sharp pain” when he walks or stands. (R.
49-50.) Peterson further testified that he injured the bottom of his foot six years ago
after jumping from a scaffold onto rocks. (R. 47.) This injury creates a feeling of
“walking on marbles” and causes his toes to curl up if he walks for more than twenty
minutes. (R. 48.)
Peterson testified that he also suffers from moderate to severe carpal tunnel
syndrome in his left hand (he is left-handed) and mild carpal tunnel syndrome in his
13

right hand. (R. 50-51.) This causes his hands to feel “50 times as big as they are” and
like they are “going to explode.” (R. 50.) As a result, Peterson has difficulty grasping or
holding objects and writing. (R. 50-51, 53.) He underwent surgery in his right wrist, but
still suffers from sharp, needly pain. (R. 51.)
Next, Peterson described a typical day. Peterson testified that he wakes early,
stretches for five to ten minutes, eats breakfast, and performs household chores, but
must take four or five breaks during the day to lie down, mostly due to the pressure and
pain in his upper back and neck. (R. 51-52.) He tries to stretch three or four times a
day. (R. 51.) Peterson takes pain medication every day, but he tries not to take too
much. (R.53.) He does not suffer any side effects from his medication. (Id.)
Peterson stated that he drives a couple times a day to grab a bite to eat or visit
his parents. (R. 55.) He drinks socially, does not smoke regularly, and does not use
street drugs. (R. 55-56.) Peterson has a cell phone, but does not use text messaging.
(R. 56.) He recently bought a computer, which he uses to check stocks and sports
news. (Id.) Peterson stated that he watches television for four to five hours a day while
either sitting or lying down. (R. 56-57.) Peterson’s wife does the grocery shopping. (R.
54.) Lastly, Peterson testified that after thirteen weeks, he had recently been removed
from temporary disability by the union. (R. 57-58.)
D.

Vocational Expert’s Testimony

Vocational Expert (“VE”) Matthew Lampley also testified at the July 6, 2011
hearing. The VE first categorized Peterson’s past work experience as an electrician at
a medium exertion level according to the Dictionary of Occupational Titles (“DOT”), but
at a “very heavy level” as performed by Peterson. (R. 60.)
14

The ALJ then asked the VE to consider a hypothetical individual of Peterson’s
age, education, and work experience who could perform light work as defined in the
regulations; could occasionally climb ramps and stairs, but never ladders, ropes or
scaffolds; could frequently balance and stoop; occasionally kneel, crouch and crawl, but
must avoid concentrated exposure to hazards such as moving machinery, and
unprotected heights. (R. 61.) The ALJ asked the VE if this hypothetical individual could
perform Peterson’s past relevant work. (Id.) The VE testified that the individual could
not perform Peterson’s past relevant work, but would be capable of performing unskilled
light level positions, such as host (3,400 jobs available regionally), usher (4,400 jobs),
and bench assembler (3,700 jobs). (R. 62.)
Next, the ALJ presented the VE with a second hypothetical individual who could
perform light work as defined in the regulations; could occasionally climb ramps and
stairs, but never ladders, ropes or scaffolds; could occasionally balance and stoop, but
never kneel, crouch or crawl; could reach in all directions except overhead with the
upper extremities; could frequently perform gross and fine manipulations; and must
avoid concentrated exposure to hazards, such as moving machinery and unprotected
heights. (R. 62-63.) The VE testified that such an individual could perform the usher
and host jobs, but not the bench assembler job due to the overhead reaching restriction.
(R. 63.) The individual could also work as a school bus monitor. (R. 63-64.) When the
ALJ described an individual who could perform a full range of sedentary work, but had
no other limitations, the VE explained that he could perform work as a final assembler
(2,200 jobs available regionally), charge account clerk (2,300 jobs), and addresser
(1,500 jobs). (R. 64.)
15

The ALJ then described a hypothetical individual who was limited to sedentary
work, and subject to the same limitations as provided in the second hypothetical above,
including the limitations on overhead reaching and frequent handling. (R. 64-65.) The
VE testified that, in his opinion, 50% of the previously described sedentary jobs would
still be available to such an individual. (R. 65.) An additional limitation, in which the
individual must alternate between sitting and standing every thirty minutes would limit
the available sedentary jobs to a point where he was not able to cite any positions with
a reasonable “amount of vocational certainty.” (R. 65-67.) The VE testified though that
light jobs, such as information clerk and office helper would be available, but in more
limited numbers due to the overhead reaching limitation. (R. 67-68.) He also testifined
that, if an individual needed to rest for 25% percent of an eight-hour day, all competitive
employment would be precluded. (R. 68.)
On cross-examination, Peterson’s attorney asked the VE to alter the ALJ’s
hypothetical regarding sedentary individuals to consider an individual who could perform
hand or finger manipulations only occasionally. (R. 70.) The VE testified that there
would be no work available to such an individual. (Id.)
II.

Legal Analysis
A.

Standard of Review

This Court will affirm the ALJ’s decision if it is supported by substantial evidence
and free from legal error. 42 U.S.C. § 405(g) (2010); Steele v. Barnhart, 290 F.3d 936,
940 (7th Cir. 2002). Substantial evidence is more than a scintilla of evidence; it is “such
relevant evidence as 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.
16

Perales, 402 U.S. 389, 401 (1971)). Our review is deferential, and while we must
consider the entire administrative record, we will not “reweigh 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) (citing Clifford v.
Apfel, 227 F.3d 863, 869 (7th Cir. 2000)). This Court will “conduct a critical review of
the evidence” and will not let the Commissioner’s decision stand “if it lacks evidentiary
support or an adequate discussion of the issues.” Lopez, 336 F.3d at 539 (quoting
Steele, 290 F.3d at 940).
While the ALJ “must build an accurate and logical bridge from the evidence to
[her] conclusion,” she 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 qualify for disability insurance benefits, a claimant must be disabled under the
Act. 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 not less that 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
17

impairment is one that the Commissioner considers conclusively disabling, (4) if the
claimant does not have a conclusively disabling impairment, whether he can perform
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.
Here, the ALJ employed this five-step analysis. At step one, the ALJ found that
Peterson “has not engaged in substantial gainful activity since December 2, 2009, the
alleged onset date.” (R. 28.) At step two, the ALJ found that Peterson suffered from the
following severe impairments: “degenerative joint disease of the right ankle,
degenerative joint disease of the shoulder, status post rotator cuff surgery and
degenerative disc disease.” (Id.) The ALJ did not include Peterson’s hand or wrist
impairments in her consideration at step two.
Next, at step three, the ALJ found that Peterson does not have an impairment or
combination of impairments that meets or medically equals one of the listed
impairments in 20 C.F.R Part 404, Subpart P, Appendix 1. (R. 28-29.) The ALJ
specifically pointed out that he did not satisfy the criteria for Listing 1.02 (major
dysfunction of a joint) or Listing 1.04 (disorders of the spine). (R. 29.)
The ALJ went on to examine Peterson’s residual functional capacity (“RFC”),
concluding that he maintains the ability to perform light work as defined in 20 C.F.R
404.1567(b) except that he can occasionally climb ramps and stairs, but never ladders,
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ropes or scaffolds; occasionally balance and stoop; never kneel, crouch and crawl; can
reach in all directions except overhead; can frequently handle, finger, and feel with both
upper extremities; and must avoid concentrated exposure to vibration and hazards such
as moving machinery or unprotected heights. (R. 29-32.)
Given this RFC, at step four, the ALJ concluded that Peterson would be unable
to perform his past relevant work as an electrician, either as described in the DOT
(medium), or as performed by him (heavy).
At step five the ALJ concluded that, based on the information provided in the
vocational expert’s testimony, and based on Peterson’s age, education, work
experience, and RFC, he could make a “successful adjustment to other work that exists
in significant numbers in the national economy,” such as host, usher, and school bus
monitor. (R. 32-33.) Accordingly, the ALJ decided that Peterson has not been under a
disability from December 2, 2009, through the date of the decision. (R. 33.)
Peterson now argues that the ALJ erred by (1) failing to adequately evaluate the
medical opinions of record; (2) failing to evaluate his bilateral carpal tunnel syndrome;
and (3) failing to consider the impact of his weight on his impairments. Peterson also
argues that the Appeals Council erred by failing to consider new and material evidence
provided after the ALJ’s decision. We start with this issue.
C.

The Appeals Council Correctly Denied Review of Peterson’s “New
And Material” Evidence.

According to Peterson, the Appeals Council failed to properly consider “new and
material” evidence, namely the January 27, 2011 records from Dr. Harvey showing

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lumbosacral neuritis and lumbar spinal stenosis. We disagree.2
To necessitate remand, evidence must be “new” and “material,” and there must
be good cause “for the failure to incorporate such evidence into the record in a prior
proceeding.” 42 U.S.C. § 405(g) (2012). Evidence is “new” if it was “not in existence or
available to the claimant at the time of the administrative proceeding.” Simila v. Astrue,
573 F.3d 503, (7th Cir. 2009) (quoting Perkins v. Chater, 107 F.3d 1290, 1296 (7th Cir.
1997)). Evidence is “material” if there is a reasonable probability that the Commissioner
would have reached a different conclusion had the evidence been considered. Perkins,
107 F.3d at 1296.
Here, because the additional evidence involved a medical consultation with Dr.
Harvey six months prior to Peterson’s hearing before the ALJ, it is certainly not “new.”
And Peterson has offered no reason for the delay in producing Dr. Harvey’s records.
Nor is this evidence material because as early as June 22, 2010, Dr. Michalow made
similar findings regarding the lumbar spine following an MRI. (R. 374.) As a result, we
find no reversible error in the Appeals Council’s decision to decline review of the
additional evidence.
D.

The ALJ Did not Err in her Treatment of Peterson’s Obesity.

Peterson also argues that the ALJ committed reversible error by failing to
properly consider his obesity. Again, we disagree.
Peterson correctly states that the ALJ must consider the “combined effects of

2

The record contains two other exhibits, 17F and 18F, that were purportedly submitted to the
Appeals Council. Those records appear to have been inadvertently submitted as they clearly relate to a
different individual. (See R. 556-60.)

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obesity with other impairments,” and consider his disabilities “in the aggregate.” Social
Security Ruling (“SSR”) 02-1p, 2000 WL 628049, at *1 (2002); Martinez v. Astrue, 630
F.3d 693, 698-99 (7th Cir. 2011). However, Peterson fails to point to any evidence in
the record indicating how his obesity further limits his ability to work. See Prochaska v.
Barnhart, 454 F.3d 731, 736-37 (7th Cir. 2006) (finding harmless error on part of ALJ
where the claimant failed to “specify how [her] obesity further impaired [her] ability to
work.”) (quoting Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004)). As a result,
we find no reversible error in the ALJ’s failure to address Peterson’s obesity.
E.

The ALJ Failed To Adequately Address the Treating Physicians’
Opinions.

Next, Peterson argues that the ALJ failed to properly evaluate the opinions of
Peterson’s treating physicians. On this point, we must agree.
As a general matter, the ALJ will give the opinion of a treating physician
controlling weight because treating physicians are “most able to provide a detailed,
longitudinal picture” of the claimant’s medical condition. 20 C.F.R. § 404.1527(c)(2).
However, a treating physician’s opinion concerning the nature and severity of a
claimant’s condition receives controlling weight only when it is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is consistent with
substantial evidence in the record. Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir.
2008). “If an ALJ does not give a treating physician’s opinion controlling weight, the
regulations require the ALJ to consider the length, nature, and extent of the treatment
relationship, frequency of examination, the physician's specialty, the types of tests
performed, and the consistency and supportability of the physician's opinion” to
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determine what amount of weight to afford the opinion. Moss v. Astrue, 555 F.3d 556,
561 (7th Cir. 2009) (citing 20 C.F.R. § 404.1527(c)(2)).
Here, the ALJ’s treatment of the opinions of Peterson’s physicians leaves us
unable to trace the path of her reasoning. First, with respect to Dr. Michalow, the ALJ
found support in his repeated assertions that Peterson could perform “light duty work.”
(R. 31.) However, there is no indication that Dr. Michalow’s definition of that phrase is
in line with the regulatory definition, and, in fact, Dr. Micalow opined that Peterson could
not perform “any standing/walking type of work.” (R. 380.) Such a limitation is not in
line with the regulatory definition of light duty positions, which can require “a good deal
of walking or standing.” 20 CFR § 404.1567(b).
The ALJ also misrepresented portions of Dr. Michalow’s evaluations when she
stated: “[b]y August 2010, the claimant was in ‘no pain’ and had minimal aches. He was
not taking any pain medication. He had been off work for ‘other reasons.’” (R. 30.) The
complete record from August of 2010 shows that Peterson was prescribed four different
medications, including Hydrocodone for pain up to three times a day, and lists a number
of “active problems,” including ankle joint pain. (R. 315.) More importantly, Dr.
Michalow elaborated that the “other reason” for Peterson remaining off work was his
pain in “other joints.” (Id.) In this regard, the ALJ improperly cherry-picked certain
portions of Dr. Michalow’s treatment records to support her conclusion. See Myles v.
Astrue, 582 F.3d 672, 678 (7th Cir. 2009) (The ALJ “may not selectively consider
medical reports, especially those of treating physicians...”); see also, Goble v. Astrue,
385 Fed. App’x 588, 593 (7th Cir. 2010) (The ALJ may not “cherry-pick facts to support
a finding of non-disability while ignoring evidence that points to a disability finding.”).
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As for Dr. Hasan, although the ALJ properly noted that Dr. Hasan’s June 8, 2011
work status report was conclusory, she disregarded Dr. Hasan’s other, non-conclusory,
statements regarding Peterson’s condition or the objective medical evidence on which
Dr. Hasan based his conclusions. Most notably, in Dr. Hasan’s responses to a
questionnaire on Peterson's RFC he stated that, based on X-ray, EMG, and MRI
exams, and “[four] pain procedures” since August 2010, Peterson’s pain was “constant
in nature” and “consistent with MRI” results. (R. 544-46.) Thus, the ALJ’s statement
that the treating physicians’ opinions, including Dr. Hasan’s, were based solely on
Peterson’s subjective complaints and “minimal objective diagnostic findings” is without
merit.
With respect to Dr. Komanduri’s evaluation, the ALJ erroneously states, “the only
definitive statement [in Dr. Komanduri’s report] is that the claimant cannot return to his
former occupation.” (R. 31.) In fact, Dr. Komanduri made several definitive statements,
including: “[f]or [Peterson] to function in a sedentary position he would require
substantial vocational rehabilitation.” (R. 549.) The ALJ also leaves unaddressed Dr.
Komanduri’s statement that “the factors that play the greatest role [in Peterson's
medical limitations] involve the use of chronic narcotics.” (Id.) This led Dr. Komanduri
to conclude, “in reviewing the extent of his narcotic use and severity of his pain scales, it
is my belief that he could work part-time in a sedentary position” at least until further
treatment was acquired. (Id.)
Further, the ALJ discredited Dr. Komanduri’s opinion because it “appears to be
based upon the claimant’s subjective complaints,” includes “inherent inconsistences,”
and lacks a “function by function analysis.” (R. 31.) This statement gives us pause for
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a number of reasons. First, as with Dr. Hasan, Dr. Komanduri’s opinion was not based
solely on subjective complaints, but instead was produced following an examination,
and a review of “multiple x-rays . . . a left shoulder MRI . . .” and “MRIs of the cervical,
thoracic, and lumbar spine” and other medical records. (R. 549.) Second, the ALJ does
not elaborate on what inconsistences she is referring to in Dr. Komanduri’s evaluation,
which prevents us from tracing the path of her reasoning.
Lastly, the third reason for the ALJ’s dismissal of Dr. Komanduri’s opinion, that is,
“a lack of function by function analysis,” is based on the mistaken premise that a
physician’s report must always include such an analysis to have probative value. (R.
31.) Contrary to the ALJ’s understanding of the issue, “the regulations do not require a
treating physician to provide a function-by-function analysis of a claimant’s ability to
perform daily living or work-related activities, nor is the ALJ required to provide one.”
Burnam v. Astrue, No. 10-5543, 2012 WL 710512, at *15 (N.D. Ill. Mar. 5, 2012)(citing
Knox v. Astrue, 327 Fed. Appx. 652, 657 (7th Cir. June 19, 2009)).
For all of these reasons, the ALJ failed to provide an adequate evaluation of the
opinions of Peterson’s treating physicians and remand is required. As a result, we
comment only briefly on Peterson’s remaining arguments. First, given the VE’s
testimony that a reduction from frequent handling to occasional handling could result in
a decreased job base, at least if Peterson was limited to sedentary work, the ALJ should
further articulate her assessment of Peterson’s well-documented bilateral carpal tunnel
syndrome.
Second, the ALJ based her credibility assessment, at least in part, on a failure to
pursue surgical treatment. Peterson argues that this is in violation of SSR 82-59, which
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requires the ALJ to first inquire about Peterson’s reasons for not undergoing surgery.
However, SSR 82-59 only comes into play when the ALJ determines that a person is
disabled because he failed to follow recommended treatment. That is not the case
here. Nonetheless, because remand is otherwise required, the ALJ should investigate
why Peterson chose to forego surgical intervention. See Decker v. Colvin, 2013 WL
5300641, at *12 (N.D. Ill. Sept. 19, 2013) (“Before discrediting [claimant] for rejecting
some of the recommended treatment avenues, the ALJ should have elicited [claimant’s]
reasons for his decisions.”).
III.

Conclusion
For the reasons set forth above, claimant’s motion for summary judgment is

granted and the Commissioner’s cross-motion for summary judgment is denied. This
case is remanded to the Social Security Administration for further proceedings
consistent with this Opinion. It is so ordered.
ENTERED:
_________________________
MICHAEL T. MASON
United States Magistrate Judge
Dated:

September 18, 2014

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