Keene v. Colvin

Filing 30

MEMORANDUM Opinion Entered by the Honorable Samuel Der-Yeghiayan on 6/24/2014.(gcy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LIZZIE M. KEENE

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

No. 13 C 3521

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

BACKGROUND
In February 2010, Keene applied for disability insurance benefits and
Supplemental Security Income. Keene’s application was denied and then denied
again on reconsideration. Keene then requested an evidentiary hearing before an
Administrative Law Judge (ALJ). After a hearing on December 12, 2011 (Hearing),
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the ALJ denied the claim, and the Appeals Council denied Keene’s request for
review. Keene subsequently filed the instant action on May 10, 2013. Keene has
filed a motion for summary judgment, seeking to have the ALJ’s decision reversed
and remanded for an award of benefits, and seeking in the alternative to have this
case remanded to the ALJ for further proceedings to correct errors made by the ALJ.
SSA has filed a motion for summary judgment seeking to have the ALJ’s decision
affirmed.

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

DISCUSSION
An ALJ examines a claim of disability under a five-step process. Craft v.
Astrue, 539 F.3d 668, 673-74 (7th Cir. 2008). In step one, the ALJ “considers
whether the applicant is engaging in substantial gainful activity.” Id. In step two,
the ALJ “evaluates whether an alleged physical or mental impairment is severe,
medically determinable, and meets a durational requirement.” Id. In step three, the
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ALJ “compares the impairment to a list of impairments that are considered
conclusively disabling.” Id. If the applicant’s impairment satisfies “or equals one of
the listed impairments, then the applicant is considered disabled” and the inquiry
ends. Id. If the inquiry continues, in step four, the ALJ “assesses an applicant’s
residual functional capacity (RFC) and ability to engage in past relevant work.” Id.
In step five, the ALJ “assesses the applicant’s RFC, as well as her age, education,
and work experience to determine whether the applicant can engage in other work”
and “[i]f the applicant can engage in other work, he is not disabled.” Id.
In the instant appeal, Keene argues: (1) that the ALJ erred in weighing the
opinion of Keene’s treating physician, (2) that the ALJ erred in determining Keene’s
RFC, (3) that the ALJ erred in evaluating the credibility of Keene, and (4) that the
ALJ erred by making independent medical findings.

I. Opinion of Treating Physician
Keene argues that the ALJ failed to give adequate weight to the opinion of her
treating physician, Dr. Matthew Kalscheur (Kalscheur). The opinion of a treating
physician “is entitled to controlling weight if it is supported by medical findings and
consistent with substantial evidence in the record.” Bates v. Colvin, 736 F.3d 1093,
1099-00 (7th Cir. 2013). If the opinion of the treating physician “is well supported
and there is no contradictory evidence, there is no basis on which the administrative
judge, who is not a physician, could refuse to accept it,” but “once well-supported
contradicting evidence is introduced, the treating physician’s evidence is no longer
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entitled to controlling weight and becomes just one more piece of evidence for the
ALJ to consider.” Id. (internal quotations omitted)(Bauer v. Astrue, 532 F.3d 606,
608 (7th Cir. 2008)). An ALJ must “give ‘good reasons’ for not giving the wellsupported opinion of a treating physician ‘controlling weight. . . .’” Martinez v.
Astrue, 630 F.3d 693, 698 (7th Cir. 2011)(quoting 20 C.F.R. § 416.927(d)(2)).
Kalscheur, who treated Keene on several occasions, found that Keene suffers
from “severe knee pain and weakness.” (AR 394). Kalscheur also found that Keene
suffers from depression to an extent that it affects her physical condition. (AR 394).
In addition, Kalscheur found that during a typical workday, Keene would frequently
experience pain or other symptoms severe enough to interfere with the attention and
concentration needed to perform even simple work tasks. (AR 394). Kalschuer also
estimated that Keene was likely to be absent from work an average of three days a
month as a result of her impairments or treatment. (AR 395). Kalschuer further
made certain specific findings concerning Keene’s ability to sit, stand, walk, and
carry weight. (AR 395-94).
The ALJ stated that she did not “assign controlling or great weight to the
opinion of Dr. Kalscheur, who opined that [Keene] could sit about 2 hours a day,
stand less than 2 hours a day, and had other work-related limitations. . . .” (AR 24).
The ALJ stated that such “extreme limitations are inconsistent with the evidence of
record, including [Keene’s] own reports of the work that she was doing. . . .” (AR
24). The ALJ referenced “normal findings on examination,” but failed to address
how Kalschuer’s opinion was inconsistent with evidence in the record showing, for
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example, severe degenerative problems in Keene’s knees. (AR 24, 282-83, 310-11).
The ALJ also failed to adequately explain why she declined to accept Kalscheur’s
opinion that Keene suffered from depression, which impacted her functional
capacity. (AR 24, 394).
The ALJ stated that Kalscheur’s opinion as to Keene’s limitations were
inconsistent with Keene’s “own reports of the work that she was doing” at her place
of employment. (AR 24). However, there is no indication that the ALJ looked
beyond the general fact that Keene had engaged in some part-time employment. To
the extent that the ALJ referenced Keene’s “own reports” about her part-time work
that indicated an increased capacity to work, it is unclear what “reports” the ALJ was
referring to in her decision. Keene testified at the Hearing that when she was unable
to stand any longer at work, she was allowed to sit and given paper work. (AR 42).
Keene also testified that when Keene was in “a lot of pain” at work and was “in
tears,” Keene was actually “sent home.” (AR 42). The ALJ failed to adequately
explain why she failed to give controlling weight to a physician who had personally
examined Keene and had a treatment history with Keene. The ALJ also did not
specify that she had considered the checklist, (AR 24), which she was required to
consider upon concluding that she would not give controlling weight to a treating
physician. See Campbell v. Astrue, 627 F.3d 299, 308 (7th Cir. 2010)(stating that
“[e]ven if an ALJ gives good reasons for not giving controlling weight to a treating
physician’s opinion, she has to decide what weight to give that opinion” and must
consider a specific “checklist”). Although the ALJ erred in examining Kalscheur’s
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opinion, Keene has not shown at this juncture that Kalscheur’s opinion is entitled to
controlling weight. On remand, the ALJ should reevaluate the evidence provided by
Kalscheur together with the other evidence of record and determine what weight
should be accorded to Kalscheur’s opinion, and adequately explain the basis for her
conclusion.

II. RFC Determination
Keene argues that the ALJ erred in determining Keene’s RFC, by failing to
base her assessment on evidence and by failing to consider Keene’s impairment in
combination. The RFC determination “is an assessment of what work-related
activities the claimant can perform despite her limitations.” Young v. Barnhart, 362
F.3d 995, 1000-01 (7th Cir. 2004). The ALJ must base the RFC determination “on
all the relevant evidence in the record.” Id.; see also Arnett v. Astrue, 676 F.3d 586,
591 (7th Cir. 2012)(stating that an ALJ is not required to “mention every snippet of
evidence in the record,” but an ALJ “must analyze a claimant’s impairments in
combination” and “may not ignore entire lines of contrary evidence”); Denton v.
Astrue, 596 F.3d 419, 423 (7th Cir. 2010)(stating that “[w]hen determining a
claimant’s RFC, the ALJ must consider the combination of all limitations on the
ability to work, including those that do not individually rise to the level of a severe
impairment”).
The ALJ concluded that Keene “has the residual functional capacity to
perform sedentary work . . . except no climbing of ladders, ropes or scaffolds, and no
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kneeling or crawling,” that Keene “can only occasionally stoop and climb ramps and
stairs,” that Keene “is limited to no concentrated exposure to heights, hazards,
respiratory irritants, temperature extremes, or humidity,” and that Keene “is limited
to a sit/stand option that allows her to change positions every 45 minutes for 5
minutes at a time.” (AR 17).
The ALJ, in determining Keene could perform sedentary work, rejected the
state agency physician’s conclusion that Keene was capable of sustaining work at a
light exertional level, and also rejected Kalscheur’s opinions that Keene was not
capable of sustaining work at any exertional level. (AR 23-24). Although the ALJ
made reference to medical evidence in the record, the ALJ failed to adequately
explain the evidentiary basis for her RFC assessment. See Pepper, 712 F.3d at 362
(stating that “[i]n rendering a decision, an ALJ must build a logical bridge from the
evidence to h[er] conclusion”)(internal quotations omitted)(quoting Schmidt v.
Barnhart, 395 F.3d 737, 744 (7th Cir. 2005)). The Seventh Circuit has explained
that “an ALJ may not rely on a hunch” in place of evidentiary support. Blakes ex rel.
Wolfe v. Barnhart, 331 F.3d 565, 570 (7th Cir. 2003)(indicating that “a claimant is
entitled to a decision based on the record rather than on a hunch”).
Keene also argues that the ALJ failed to consider the combination of Keene’s
impairments, such as obesity, in determining Keene’s RFC. Although the ALJ made
references to Keene’s struggle to deal with her weight, the ALJ failed to specifically
explain how such obesity factored into the RFC determination. The ALJ also failed
to specifically explain how the combination of Keene’s impairments, including
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obesity factored into the RFC determination. On remand, the ALJ should conduct an
appropriate RFC analysis.

III. Credibility Determination
Keene argues that the ALJ erred in evaluating the credibility of Keene.
Credibility assessments made by an ALJ are given “special, but not unlimited,
deference.” Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012)(stating that “[t]he
ALJ must consider a number of factors imposed by regulation, . . . and must support
credibility findings with evidence in the record”); see also Pierce v. Colvin, 739 F.3d
1046, 1050 (7th Cir. 2014)(stating that “[a]n ALJ may not discount a claimant’s
credibility just because her claims of pain are unsupported by significant physical
and diagnostic examination results”). The ALJ stated that she did not find Keene’s
claims as to her limitations to be credible because while Keene “has some
limitations, she continues to engage in a wide array of daily activities,” such as parttime work, water aerobics, and other exercise. (AR 22). The ALJ also noted that
Keene indicated that she takes her daughter to and from school, traveled to
Wisconsin on one occasion, and has certain hobbies such as poetry and working on
puzzles. (AR 22). The ALJ also found Keene lacked credibility because she was
“getting unemployment benefits, which require her to certify that she was ready and
willing to work.” (AR 22). The ALJ also separately commented on Keene’s claimed
limitations stating that “the allegations of disabling limitations are not credible.”
(AR 19).
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The ALJ failed to adequately explore the exertional details of all the activities
engaged in by Keene, which the ALJ found to be inconsistent with Keene’s claims as
to her limitations. Nor did the ALJ tie such exertional details to Keene’s capacity to
perform work, which was the relevant issue before the ALJ. For example, there is no
indication that the ALJ explored what type of exertion was required for the water
aerobics or why Keene’s ability to participate in such a class showed that her claims
as to limitations were not credible. (AR 22, 46). In fact, the record indicates that it
was Kalscheur, who was familiar with Keene’s severe physical aliments and treated
her for such ailments, who recommended that Keene enroll in such a water aerobics
class as therapy for her obesity. (AR363). Keene’s attempts to rehabilitate, in and of
itself, does not show that Keene’s claims are not credible. The ALJ also failed to
adequately distinguish between such rehabilitative daily activities and the type of
required performance that would be expected in a full-time paying job. See Bjornson
v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012)(stating that “[t]he critical differences
between activities of daily living and activities in a full-time job are that a person has
more flexibility in scheduling the former than the latter, can get help from other
persons . . . and is not held to a minimum standard of performance, as she would be
by an employer”).
The ALJ also failed to explore how Keene’s daily activities and hobbies were
inherently inconsistent with Dr. Meyers’ (Meyers) opinion that Keene suffered from
major depressive disorder. (AR 22, 397). For example, the ALJ pointed out that
Keene “enjoys writing poetry, and working jigsaw and crossword puzzles”
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apparently as a basis to discount Keene’s claims as to depression and mental
impairments. (AR 22, 49). However, the ALJ failed to explore the extent that Keene
was actually able to engage in such activities or explain why the ability to engage in
such activities shows that one is not suffering from the level of depression claimed
by Keene and documented by Meyers. (AR 22).
The ALJ also found Keene to lack credibility because she traveled to
Wisconsin on one occasion. (AR 22, 38). However, there is no indication that the
ALJ adequately explored the physical requirements associated with such travel on
one occasion. (AR 22). Nor did the ALJ explain why that one-time event was a
proper indicator of Keene’s ability to engage in work on a long-term basis. (AR 22).
The ALJ also held that although there was some evidence of pain, “[t]o the
extent that [Keene] alleges additional limitations, treatment records do not support
her allegations.” (AR 23). Keene offered testimony explaining how she was in
constant severe pain and how her knees felt as though they were going to buckle at
times. (AR 42-45). The record also shows that it was recommended by medical
professionals that Keene should receive viscosupplementation to address the
degenerative condition in her knees. (AR 44-45, 282-83, 422). Although the ALJ
pointed to certain evidence in the record, she failed to adequately address why
Keene’s claims as to severe pain were not credible.
The ALJ also improperly discounted Keene’s credibility merely because she
was on unemployment. The fact that Keene expressed a desire to work and may,
during financial difficulty, have indicated an ability to work in seeking
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unemployment benefits should not have been held against Keene absent further
investigation into the circumstances by the ALJ. See Wallace v. Astrue, 2012 WL
3598737, at *12 (N.D. Ill. 2012)(stating that an ALJ should consider whether the
applicant “sought unemployment benefits out of financial need and did not believe
himself capable of holding down a job”). Finally, Keene correctly points out that the
ALJ failed to adequately explain whether she considered the side effects of Keene’s
medication in evaluating her credibility. On remand, the ALJ should reevaluate
Keene’s credibility and adequately explain any conclusions.

IV. Independent Medical Findings
Keene argues that the ALJ erred by making independent medical findings. An
ALJ cannot “substitut[e] her own judgment for that of a medical professional” and
make independent medical findings. Dixon v. Massanari, 270 F.3d 1171, 1177 (7th
Cir. 2001); see also Myles v. Astrue, 582 F.3d 672, 677 (7th Cir. 2009)(stating that
the “ALJ impermissibly ‘played doctor’ and reached his own independent medical
conclusion”); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996)(stating that “ALJs
must not succumb to the temptation to play doctor and make their own independent
medical findings”). The ALJ gave “no weight” to the opinion of Meyers, concluding
that the extreme mental limitations found by Meyers were inconsistent with
treatment notes and GAF score. (AR 24). However, given the ample evidence in the
record concerning Keene’s mental impairments, it was incumbent on the ALJ to seek
guidance from a medical professional on such an issue if the ALJ would discredit
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such medical evidence. SSA acknowledges that the ALJ proceeded in the absence of
the guidance of a mental health medical professional to make conclusions concerning
Keene’s mental impairments and how such impairments impacted Keene’s capacity
to work. (D SJ. 13). Such independent medical conclusions on the part of the ALJ
were improper. On remand the ALJ should refrain from making such independent
medical findings or conclusions and should seek further guidance from mental health
professionals if the ALJ believes that the evidence by other medical professionals is
inconclusive as to Keene’s mental limitations.

CONCLUSION
Based on the foregoing analysis, SSA’s motion is denied, Keene’s motion is
granted in part, and this matter is remanded to SSA for further proceedings consistent
with this opinion.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: June 24, 2014

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