Ritchie v. Commissioner of Soc Sec
Filing
31
MEMORANDUM Opinion and Order: For the reasons set forth in the attached Memorandum Opinion and Order, Ritchie's motion for summary judgment, R. 24 , is granted and the Commissioner's motion for summary judgment, R, 28 , is denied, and the case is remanded for further proceedings consistent with this decision. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 12/16/2016:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
J. MARIE RITCHIE
Plaintiff,
v.
CAROLYN COLVIN, Acting
Commissioner of Social Security,
Defendant.
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No. 14 C 499
Judge Thomas M. Durkin
MEMORANDUM OPINION AND ORDER
On March 25, 2011, Plaintiff Marie Ritchie filed an application for
supplemental security income, alleging disability beginning December 30, 2007. The
claim was denied initially on June 10, 2011, and upon reconsideration on July 27,
2011. Thereafter, Ritchie filed a written request for hearing on August 9, 2011. The
hearing was held before an Administrative Law Judge (“ALJ”) on August 16, 2012.
Ritchie was represented by counsel at the hearing, at which only Ritchie and a
vocational expert testified. 1 On August 31, 2012, the ALJ issued a written decision
denying Ritchie’s application. Ritchie appealed that decision to the Appeals Council
of the Social Security Administration, which denied Ritchie’s request for review.
Acting pro se, Ritchie then filed this action seeking judicial review. The Court
The ALJ’s written decision states that an impartial medical expert also testified at
the hearing, but the hearing transcript shows otherwise.
1
appointed Ritchie an attorney, who filed an amended complaint, followed by a
motion for summary judgment asking the Court to reverse the ALJ’s decision. The
Commissioner of Social Security (“Commissioner”) filed a cross-motion for summary
judgment asking the Court to affirm. For the reasons that follow, Ritchie’s motion is
granted, the Commissioner’s motion is denied, and the case is remanded for further
proceedings.
STANDARD OF REVIEW
Judicial review of a final decision of the Social Security Administration is
generally deferential. The Social Security Act requires the court to sustain the
ALJ’s findings if they are supported by substantial evidence. See 42 U.S.C. § 405(g).
Substantial evidence means “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,
401 (1971). The court should review the entire administrative record, but must “not
reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute
[its] own judgment for that of the [ALJ].” Clifford v. Apfel, 227 F.3d 863, 869 (7th
Cir. 2000). “However, this does not mean that [the court] will simply rubber-stamp
the [ALJ’s] decision without a critical review of the evidence.” Id. A decision may be
reversed if the ALJ’s findings “are not supported by substantial evidence or if the
ALJ applied an erroneous legal standard.” Id. In addition, the court will reverse if
the ALJ does not “explain his analysis of the evidence with enough detail and
clarity to permit meaningful appellate review.” Briscoe ex rel. Taylor v. Barnhart,
425 F.3d 345, 351 (7th Cir. 2005). “Although a written evaluation of each piece of
2
evidence or testimony is not required, neither may the ALJ select and discuss only
that evidence that favors his ultimate conclusion.” Herron v. Shalala, 19 F.3d 329,
333 (7th Cir. 1994); see Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir. 2014) (“This
‘sound-bite’ approach to record evaluation is an impermissible methodology for
evaluating the evidence.”). Additionally, the ALJ “has a duty to fully develop the
record before drawing any conclusions,” Murphy v. Astrue, 496 F.3d 630, 634 (7th
Cir. 2007), and deference in review is lessened when the ALJ has made errors of
fact or logic, Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014). In oft-quoted
words, the Seventh Circuit has said that the ALJ “‘must build an accurate and
logical bridge from the evidence to his conclusion.’” Clifford, 227 F.3d at 872
(quoting Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014)). When the ALJ has
satisfied these requirements, the responsibility for deciding whether the claimant is
disabled falls on the Social Security Administration, and, if conflicting evidence
would allow reasonable minds to differ as to whether a claimant is disabled, the
ALJ’s decision must be affirmed. Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990)
(internal quotation marks and citation omitted).
BACKGROUND
A.
RITCHIE’S CONDITIONS
Ritchie was born in 1958. Her work history over the past 15 years includes
selling health insurance from 1994 through 1995, and selling real estate from 2002
until 2007. AR 186. 2 Ritchie obtained her real estate license in 2002 and initially
2
Citations to “AR” are to the Administrative Record, R. 23-1.
3
started out working for an agency. AR 42, 43. In 2005, she opened her own real
estate business. AR 43. In November 2007, Ritchie was admitted to Jackson Park
Hospital following an incident in which she passed out at her home. AR 268.
Hospital records indicate that she had pneumonia. In addition, she was diagnosed
with malignant hypertension, syncope (fainting), and anemia. Id. She was referred
to a cardiologist, who diagnosed her with cardiomyopathy 3 and hypertensive heart
disease. 4 AR 322. Ritchie testified that her job as a realtor required her to be on her
feet about six or seven hours in a day, that she did not work a normal eight-hour
day, and that she was “[o]n call 24/7.” AR 63-64. She also testified that she was
required to lift and carry yard signs that weighed an average of 30 pounds and to
dig the holes for the signage. AR 64. Ritchie stopped working at the end of 2007
because of her illness. The symptoms she was experiencing that made her stop work
included “headaches, chest pains, nosebleeds, nausea, frequent urination, occasional
constipation, fatigue, and dizziness. AR 48. She testified that “[i]t was like my heart
would race and you could almost see the [ ] chest pain.” AR 48.
At the hearing before the ALJ, Ritchie was asked about her then-current
level of functioning. She testified that she gets up at 5:30 a.m. every morning. Id.
Cardiomyopathy is a condition where the heart muscle is abnormal making it
harder for the heart to pump and deliver blood to the rest of the body See
http://www.mayoclinic.org/diseases-conditions/cardiomyopathy/basics/definition/con20026819 (last visited December 14, 2016).
3
Hypertensive heart disease refers generally to heart conditions caused by high
blood pressure, and can include a number of different heart disorders such as heart
failure, thickening of the heart muscle, coronary artery disease, and other
conditions. See http://www.healthline.com/health/hypertensive-heart-disease (last
visited December 14, 2016).
4
4
AR 52. She spends more than half her day sleeping because she experiences chest
pains, dizziness, and nausea. AR 56. Her dizziness is once or twice a day typically
occurring “early mornings or midday.” AR 50-51. The dizziness is over in a matter of
seconds, and, when it happens, she has to sit down. Id. In addition, she experiences
fatigue, which comes and goes throughout the day “without rhyme or reason” and
causes her to sleep intermittently. AR 50, 64. She also has headaches, which tend to
occur “two or three days out of the week.” AR 49-50. She deals with the headaches
by sleeping. The only household chores Ritchie is able to do is wash dishes. AR 55.
She cooks a light lunch and dinner, and drives locally every three days or so to the
grocery store. AR 53, 55. The only exercise in which she engages is walking outside
for about ten minutes (four to six blocks) every other day. AR 55. She does not have
any hobbies and does not spend time visiting with friends. AR 57. When she is
awake at home she spends her time either talking to her mother by phone or
reading the Bible. AR 56. She goes to bed around 9:00 or 9:30 every night. AR 52.
She sleeps well at night except for having to get up to urinate two to three times a
night. Id.
Ritchie estimated that she spends a total of two hours on her feet standing or
walking, AR 57-58, and five to six hours sitting upright, AR 58. She spends at least
six or more hours of each day sleeping. AR 56. She estimated that she could sit for
thirty or forty minutes straight before having to make a change because of leg
cramps, and that she could stand for thirty minutes at a time and walk for about
ten minutes. AR 60-61. She can only climb about three or four stairs because she
5
gets tired and her heart starts beating faster and racing. AR. 65. She also testified
that she suffers from poor vision, needs glasses but lost them so is not able to see
very well, and has had trouble with cloudy peripheral vision even when she had her
glasses. AR 65-66. Ritchie reports that she takes Enalapril for her heart,
Hydrochlorothiazide as a diuretic, iron pills for her anemia, and Nifedipine to slow
her heartbeat and keep the blood from flowing backwards. She stated that she
suffers from “nausea,” “headaches,” and “fatigue” as side effects of her medications.
AR 59. Following her 2007 hospitalization, Ritchie began receiving monthly care for
check-ups and medication refills at Jackson Park Clinic. Her current treating
physician is Dr. Farkash, but prior to August 3, 2012, she was treated by Dr. Ali.
AR 61.
B.
THE ALJ’S DECISION
A person is disabled under the Social Security Act if she has an “inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A). “To determine disability, the ALJ makes a fivestep 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 Commission considers conclusively disabling, (4) if the claimant does not
have a conclusively disabling impairment, whether she can perform her past
relevant work, and (5) whether the claimant is capable of performing any work in
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the national economy.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001)
(citing 20 C.F.R. § 404.1520). “‘An affirmative answer leads either to the next step,
or, on Steps 3 and 5, to a finding that the claimant is disabled. A negative answer at
any point, other than Step 3, ends the inquiry and leads to a determination that a
claimant is not disabled.’ The burden of proof is on the claimant through step four;
only at step five does the burden shift to the Commissioner.” Clifford, 227 F.3d at
868 (quoting Zalewski v. Heckler, 760 F. 2d 160, 162 n.2 (7th Cir. 1985)).
The ALJ found that Ritchie had not engaged in substantial gainful activity
since March 25, 2011, the application date (Step 1); that the medical evidence
showed Ritchie had severe impairments (see 20 C.F.R. § 404.1520(c)) consisting of
valvular heart disease with regurgitation, 5 hypertension, and anemia (Step 2); and,
that none of Ritchie’s impairments were of the type that the Social Security
Administration considers conclusively disabling (Step 3). Neither party disputes
these findings. Instead, the area of dispute involves the ALJ’s Step 4 and Step 5
determinations of whether Ritchie can perform her past relevant work as a real
estate agent, and, if not, whether she is capable of performing any other work in the
national economy.
Ritchie reported to the consultative physician that she has been told she suffers
from congenital mitral valve regurgitation. AR 238. “Mitral regurgitation is leakage
of blood backward through the mitral valve each time the left ventricle contracts. A
leaking mitral valve allows blood to flow in two directions during the contraction.
Some blood flows from the ventricle through the aortic valve—as it should—and
some blood flows back into the atrium.” http://www.heart.org/HEARTORG/
Conditions/More/HeartValveProblemsandDisease/Problem-Mitral-Valve-Regurgita
tion_UCM_450612_Article.jsp# (last visited December 14, 2016).
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Before turning to Step 4, the ALJ was required to make a determination of
Ritchie’s residual functional capacity (“RFC”). See 20 C.F.R. § 416.920(e). A
claimant’s RFC “is the most [the claimant] can still do despite [the claimant’s]
limitations.” 20 C.F.R. § 416.945(a)(1). The ALJ found that Ritchie had the ability to
occasionally lift and carry 20 pounds, frequently lift and carry ten pounds, stand or
walk six of eight hours with customary breaks, and sit six of eight hours with
customary breaks. AR 25. This finding put Ritchie’s RFC in the light work
category. 6 Due to Ritchie’s history of dizziness and her 2007 episode of syncope
(fainting), the ALJ also imposed the additional limitation that she avoid
concentrated exposure to hazards such as unprotected heights, hazardous moving
machinery, and open and unprotected conditions. AR 25.
After determining Ritchie’s RFC, the ALJ turned to the Step 4 question of
whether Ritchie has past relevant work. The ALJ found that Ritchie had past
relevant work in 2007 as a real estate broker, and, based on the testimony of the
vocational expert, that Ritchie’s description of her prior job would result in that
work falling in the “medium” category. 7 AR 30. The ALJ also found based on the
testimony of the vocational expert that the job of real estate broker as it is typically
See 20 C.F.R. § 416.967(b) (“Light work involves lifting no more than 20 pounds at
a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is in this category when it requires
a good deal of walking or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do
substantially all of these activities.”).
6
See 20 C.F.R. § 416.967(c) (“Medium work involves lifting no more than 50 pounds
at a time with frequent lifting or carrying of objects weighing up to 25 pounds.”).
7
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performed falls within the category of light work. Id. The ALJ then compared
Ritchie’s RFC “with the physical and mental demands of” work as a real estate
agent, and concluded that Ritchie was able to perform the work of real estate agent
“as [it] generally [is] performed.” Id.; see also AR 68 (vocational expert testimony).
In the alternative, the ALJ concluded that even if Ritchie was not capable of
performing past relevant work as a real estate agent, other jobs existed in the
national economy that she was able to perform given her vocational profile and RFC
for light work. The ALJ determined that Ritchie could make a successful
adjustment to some of the jobs in this category (such as cashier II, mail clerk, and
hand packager), taking into consideration Ritchie’s vocational profile, her RFC of
light work, and the additional limitations the ALJ had imposed regarding hazards
such as unprotected heights, moving machinery, and open and unprotected
conditions. AR 31; see also AR 68 (vocational expert testimony). Accordingly, the
ALJ concluded that Ritchie could perform either her past relevant work as a real
estate broker or one of several other jobs available in the national economy, and
that she therefore was not disabled. Id.
DISCUSSION
A.
TREATING PHYSICIAN OPINION
Ritchie’s primary argument for reversal of the ALJ’s decision is that the ALJ
improperly discounted the opinion of her treating physician, Dr. Ali. The Court’s
review of this issue is governed by well established legal principles.
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1.
THE ALJ’S DECISION NOT TO ACCORD DR. ALI’S
OPINION “CONTROLLING WEIGHT”
“Under a rule adopted by the Commissioner of Social Security, in
determining whether a claimant is entitled to Social Security disability benefits,
special weight is accorded opinions of the claimant’s treating physician.” Black &
Decker Disability Plan v. Nord, 538 U.S. 822, 825 (2003) (citing 20 CFR
§§ 404.1527(d)(2), 416.927(d)(2)). The rule is that “[g]enerally,” the Social Security
Administration will “give more weight to opinions from [the claimant’s] treating
sources, since these sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of [the claimant’s] medical impairment(s)
and may bring a unique perspective to the medical evidence that cannot be obtained
from the objective medical findings alone or from reports of individual
examinations, such as consultative examinations or brief hospitalizations.” 20
C.F.R. § 404.1527(c)(2). If the ALJ finds “that a treating source’s opinion on the
issue(s) of the nature and severity of [the claimant’s] impairment(s) is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence in [the claimant’s] case
record, [he] will give it controlling weight.” Id.; accord Roddy v. Astrue, 705 F.3d
631, 636 (7th Cir. 2013). “An ALJ can reject an examining physician’s opinion only
for reasons supported by substantial evidence in the record; a contradictory opinion
of a non-examining physician does not, by itself, suffice.” Gudgel v. Barnhart, 345
F.3d 467, 470 (7th Cir. 2003); see Humphries v. Colvin, 2015 WL 9268211, at *4-6
(N.D. Ill. Dec. 21, 2015).
10
Dr. Ali treated Ritchie from sometime in 2009 until August 3, 2012. AR 61.
On October 18, 2011, Dr. Ali completed a form questionnaire titled “Medical
Assessment of Condition And Ability To Do Work Related Activities.” Dr. Ali
answered “yes” to the question whether Ritchie could be expected to have “good
days” and “bad days,” and “yes” to the question whether during “bad days” Ritchie
would have difficulty in sustained performance of even ordinary activity of daily
living and household chores. AR 263. Dr. Ali answered “10 pounds” for the amount
of weight Ritchie could be expected to lift occasionally and “5 pounds” for the
amount of weight she could be expected to lift frequently. AR 264. She answered “5
to 6 out of an 8-hour workday” for the number of hours Ritchie could be expected to
sit on a “good day” and only “2” for a “bad day.” AR 263. She answered “3” for the
number of hours uninterrupted that Ritchie could sit on a good day and 1½ hours
for a bad day. Id. These numbers are lower than the ALJ’s RFA “light work”
determination. If accepted, they likely would have placed Ritchie in the sedentary
work category, 8 which probably would have resulted in a finding of disability. 9 But
See 20 C.F.R. § 416.967(a) (“Sedentary work involves lifting no more than 10
pounds at a time and occasionally lifting or carrying articles like docket files,
ledgers, and small tools. Although a sedentary job is defined as one which involves
sitting, a certain amount of walking and standing is often necessary in carrying out
job duties. Jobs are sedentary if walking and standing are required occasionally and
other sedentary criteria are met.”).
8
The ALJ asked the vocational expert whether there would be work for a person
with Ritchie’s vocational profile who could only sit for less than three hours straight
and a total of six hours per day, could lift only six to ten pounds occasionally, and
five or less pounds frequently, and would need to lie down intermittently in a work
day for up to two hours. The vocational expert answered that he could not identify
any work in the national economy for such a person. AR 69.
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the ALJ “reject[ed]” Dr. Ali’s opinion, stating that it was entitled to “little weight.”
AR 29.
The first reason the ALJ gave for rejecting Dr. Ali’s opinion is that Dr. Ali
“fails to give a reason for limiting [Ritchie] to only 10 pounds occasionally and 5
pounds frequently.” Id. It is true that Dr. Ali’s responses in the questionnaire do not
contain any explanatory analysis. But even the ALJ recognized that “the basis
stated for the limitations is the valvular heart regurgitation, hypertension and
dizziness.” Id. “Although by itself a check-box form might be weak evidence, the
form takes on greater significance when it is supported by medical records.” Larson
v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010); see also Roth v. Colvin, 2016 WL
890750, at *8 (N.D. Ill. Mar. 9, 2016) (rejecting ALJ’s finding fault with treating
physician for not providing a narrative commentary on form where form “did not
provide space for such narrative” and where claimant’s medical records supported
treating physician’s assessment).
The ALJ should have explained why Ritchie’s medical records did not support
Dr. Ali’s weight lifting limitation. See Clifford, 227 F.3d at 872 (“the ALJ does not
explain why the objective medical evidence does not support Clifford’s complaints of
disabling pain”). The ALJ cannot dispute that Ritchie’s medical conditions have the
potential to justify the restrictions noted by Dr. Ali in his opinion, because those
conditions meet the criteria of a “severe impairment” under Step 2. Moreover, the
limitations noted by Dr. Ali appear to be consistent with what could be expected for
12
someone with Ritchie’s medical conditions. 10 Without a discussion of why Dr. Ali’s
form responses were not supported by Ritchie’s medical records, it appears that the
ALJ’s decision was based simply on his own conclusion that Ritchie’s medical
conditions were not sufficiently severe to warrant the restrictions noted by Dr. Ali.
As the Seventh Circuit “has counseled on many occasions, ALJs must not succumb
to the temptation to play doctor and make their own independent medical findings.”
Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996).
“[T]o the extent a treating physician’s opinion is consistent with the relevant
treatment notes and the claimant’s testimony, it should form the basis for the ALJ’s
determination.” Bates v. Colvin, 736 F.3d 1093, 1100 (7th Cir. 2013) (citation
omitted). The ALJ did not find any inconsistencies between Dr. Ali’s weight lifting
limitation and Ritchie’s medical records, 11 and instead merely criticized Dr. Ali for
failing to connect the dots. While the Court does not disagree with the ALJ that
additional information or analysis connecting Ritchie’s conditions/symptoms with
Common symptoms of congenital mitral valve regurgitation may include
breathlessness with exertion or even at rest, swelling of the legs, ankles and feet,
bloating of the abdomen due to fluid buildup, cough while lying down, fatigue,
irregular heartbeats that feel rapid, pounding or fluttering, chest pain, dizziness,
lightheadedness, and fainting. See http://www.mayoclinic.org/diseasesconditions/
cardiomyopathy/basics/symptom s/con-20026819. A common symptom of anemia is
feeling tired and weak. See http://www.mayoclinic.org/diseases-conditions/
anemia/home/ovc-20183131 (last visited December 14, 2016).
10
The ALJ discussed Ritchie’s medical records in a different part of his written
decision, observing that those records “show only very routine and conservative
treatment,” that “her hypertension is controlled, and that she does not have
complaints.” AR 27. These facts, however, are not inconsistent with Dr. Ali’s stated
weight lifting limitation. Moreover, the Seventh Circuit has “frequently warned
against . . . [an ALJ] focus[ing] solely on the reports of stability and ignor[ing] the
many complaints of persisting symptoms.” Roth, 2016 WL 890750, at *9.
11
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the limitations stated in Dr. Ali’s opinion would have been helpful, that observation
alone does not justify rejecting Dr. Ali’s opinion. Instead, the absence of a better
explanation warranted a further investigation into the basis for Dr. Ali’s opinions.
See, e.g., Barnett v. Barnhart, 381 F.3d 664, 669 (7th Cir. 2004) (noting that the
treating physician’s opinion was not inconsistent with the claimant’s record of past
treatment” and that, “if the ALJ’s real concern was the lack of backup support for
[the] opinion,” then the ALJ had “a duty to solicit additional information to flesh [it]
out”)) (citing 20 C.F.R. § 404.1527(c)(3), S.S.R. 96–2p at 4, and Smolen v. Chater, 80
F.3d 1273, 1288 (9th Cir. 1996) (“If the ALJ thought he needed to know the basis of
[medical] opinions in order to evaluate them, he had a duty to conduct an
appropriate inquiry, for example, by subpoenaing the physicians or submitting
further questions to them.”)); see also Smith v. Apfel, 231 F.3d 433, 437 (7th Cir.
2000) (“Although a claimant has the burden to prove disability, the ALJ has a duty
to develop a full and fair record. Failure to fulfill this obligation is ‘good cause’ to
remand for gathering of additional evidence.”) (citation omitted); Humphries, 2015
WL 9268211, at *6 (“[i]f the ALJ has any questions about whether to give
controlling weight to Dr. Ahmad’s opinion, he is encouraged to re-contact him”). The
ALJ did not undertake any further investigation, and erred in rejecting Dr. Ali’s
opinion without doing so.
The ALJ also rejected Dr. Ali’s opinion (1) for indicating the need to lie down
intermittently during the day without also indicating the total time required, and
(2) for indicating that Ritchie could sit for five to six hours on a good day and only
14
one to three hours on a bad day without defining what is meant by “good day” and
“bad day.” Neither criticism is justified. The Seventh Circuit has noted that the
need to lie down during the day by itself (regardless of total time) would likely
prevent a person from maintaining full-time employment. See Stark v. Colvin, 813
F.3d 684, 688 (7th Cir. 2016) (“Stark’s need for frequent breaks is not consistent
with light work activity”) (emphasis in original) (citing Roddy, 705 F.3d at 639
(“inability to get through the day without lying down every hour does not indicate
ability to work even sedentary job”); see also Humphries, 2015 WL 9268211, at *6
(the “modern workplace” would not accommodate a plaintiff who “reported that she
has to rest for 10 to 15 minutes after walking a block and rests and naps after her
volunteer work ‘due to weakness and fatigue’”). And the terms “good day” and “bad
day” do not need defining; they obviously mean days in which Ritchie is feeling well
and days in which she is not feeling well. The fact in itself that Ritchie might
experience good days and bad days would make maintaining full-time work
difficult. See Allensworth v. Colvin, 814 F.3d 831, 833 (7th Cir. 2016) (“gainful
employment . . . normally requires an ability to work a 40-hour week without
missing work more than twice a month”). The Seventh Circuit understands and has
provided instruction on this:
A person who has a chronic disease . . . and is under
continuous treatment for it with heavy drugs, is likely to
have better days and worse days; that is true of the
plaintiff in this case. Suppose that half the time she is
well enough that she could work, and half the time she is
not. Then she could not hold down a full-time job.
15
Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir. 2008) (emphasis added) (internal
citations omitted); see also Vacco v. Colvin, 2016 WL 738455, at *7 (N.D. Ill. Feb. 25,
2016) (“the Commissioner [has] issued guidance for evaluating fibromyalgia claims
that admonishes adjudicators to be aware of the fluctuating nature of symptoms,
which will produce good and bad days . . .”) (emphasis added) (citing Social Security
Ruling (SSR) 10 12–2p)).
The ALJ’s final criticism of Dr. Ali’s opinion was that it appeared to reflect
Ritchie’s self-reports concerning her condition more than Dr. Ali’s medical
conclusions. This criticism could have a bit more merit, although it is difficult to tell
on the current record. “[I]f the treating physician’s opinion is . . . based solely on the
patient’s subjective complaints, the ALJ may discount it.” Ketelboeter v. Astrue, 550
F.3d 620, 625 (7th Cir. 2008); see also Reyes v. Colvin, 2015 WL 6164953, at *12
(N.D. Ill. Oct. 20, 2015) (“the ALJ was free to question the credibility of Plaintiff’s
subjective statements and, relying upon his adverse credibility determination . . .
discount Dr. Aloman’s opinion to the extent it relied on those subjective
complaints”). It is true that Dr. Ali’s report indicates in several places that her
answers were “per patient.” The problem, however, is that the ALJ’s blanket
rejection of the entire report on this basis seems inconsistent with the fact that
Dr. Ali specifically identified certain questions for which her answer was based on
the patient’s report, 12 as well as certain questions she could not answer at all (and
For instance, in response to the question asking how many pounds Ritchie could
carry, Dr. Ali wrote “6” (“for 2 to 3 feet occasionally” and “for 5 feet frequently,”
which is confusing because she correlates a longer distance with greater abilities),
12
16
therefore left blank) because of lack of knowledge. 13 In addition, as noted by the
Seventh Circuit, the cases in which the court has upheld an ALJ’s decision to
discount a medical opinion on the basis that it relies on subjective complaints of the
claimant involve situations where the claimant’s complaints “could not be explained
by the objective medical evidence.” Aurand v. Colvin, 654 Fed. App’x 831, 837 (7th
Cir. 2016) (unpublished) (citing Bates, 736 F.3d at 1100, and Dixon, 270 F.3d at
1178). That is not the case here, as Ritchie has certain medical conditions that do
appear to explain the symptoms she reports.
The Seventh Circuit recently cautioned with respect to patient complaints of
chronic pain that “physical pain often cannot be explained through diagnostics,” and
that it thus was “illogical to dismiss the professional opinion of an examining
[physician] simply because that opinion draws from the claimant’s reported
symptoms.” Aurand, 654 Fed. App’x at 837. Ritchie’s complaints of chronic fatigue
would fall in the same category. “Almost all diagnoses require some consideration of
the patient’s subjective reports, and certainly [the claimant’s] reports had to be
factored into the calculus that yielded the doctor’s opinion.” McClinton v. Astrue,
2012 WL 401030, at *11 (N.D. Ill. Feb. 6, 2012). To discount Dr. Ali’s findings on
and next to that answer Dr. Ali also wrote “per patient.” But in response to the
question asking how many pounds Ritchie could lift (as opposed to carry), Dr. Ali
wrote “10 occasionally” and “5 frequently,” without indicating “per patient” next to
her response. AR 264.
Inexplicably, the ALJ used Dr. Ali’s honesty regarding her lack of knowledge (i.e.,
as to how many hours Ritchie could stand and/or walk) as a reason to discount
Dr. Ali’s response to questions she did answer. Logically, Dr. Ali’s full disclosure
regarding her lack of knowledge concerning that one question would weigh in favor
of the credibility of the responses she gave to other questions on the form.
13
17
this basis, the ALJ should have pointed to evidence in the record that would
“suggest that Dr. [Ali] disbelieved [Ritchie’s] descriptions of her symptoms, or that
Dr. [Ali] relied more heavily on [Ritchie’s] descriptions than . . . [her] own clinical
observations.” Guerin v. Colvin, 2015 WL 5950612, at *8 (N.D. Ill. Oct. 13, 2015); see
also Davis v. Astrue, 2012 WL 983696, at *19 (N.D. Ill. March 21, 2012) (“The ALJ
fails to point to anything that suggests that the weight [Plaintiff’s treating
psychiatrist] accorded Plaintiff’s reports was out of the ordinary or unnecessary,
much less questionable or unreliable.”). The ALJ failed to explain his reasons for
concluding that Dr. Ali’s entire opinion reflects an uncritical and unexamined
acceptance of Ritchie’s self-reporting, as opposed to Dr. Ali’s medical opinion based
on objective medical evidence in combination with Ritchie’s reports of symptoms. 14
Thus, the ALJ failed to “build an accurate and logical bridge from the evidence to
his conclusion.” Beardsley, 758 F.3d at 834.
2.
THE ALJ’S DECISION TO ACCORD DR. ALI’S
OPINION “LITTLE WEIGHT”
Even if the ALJ had articulated good reasons for not giving Dr. Ali’s opinion
controlling weight, the ALJ still failed to articulate a sound basis for according that
In her brief, the Commissioner points to the “additional comments” section at the
end of Dr. Ali’s questionnaire, where Dr. Ali wrote: “patient not worked for 9 years,
no objective measure available, answers as per patient ability at home.” AR 165. It
is not clear what Dr. Ali meant by this comment, which does not specifically say
that her answers were based solely on the patient’s self-reporting. In addition, the
ALJ did not cite to this comment, and therefore the Court has no way of knowing
whether he relied on it in reaching the conclusion that Dr. Ali’s opinion was overly
influenced by patient self-reporting. To the extent that Dr. Ali’s “additional
comment” needed clarification or raised questions about the basis for Dr. Ali’s
opinion, the ALJ should have sought clarification either directly from Dr. Ali or
through questioning of Ritchie at the hearing.
14
18
opinion only “little weight.” See 20 C.F.R. § 404.1527(a)(2) (“When we do not give
the treating source’s opinion controlling weight, we apply the factors listed in
paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well as the factors in paragraphs
(c)(3) through (c)(6) of this section in determining the weight to give the opinion.”).
“The analysis is a ‘two-step process’ in which the ALJ first determines whether the
opinion deserves controlling weight, and next evaluates the opinion” to determine
what weight to assign it. Schickel v. Colvin, 2015 WL 8481964, at *11 (N.D. Ill. Dec.
10, 2015) (quoting Duran v. Colvin, 2015 WL 4640877, at *8 (N.D. Ill. Aug. 4,
2015)). In determining what weight to assign the opinion of a treating physician not
accorded controlling weight by the ALJ, the regulations direct 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.” Moss v. Astrue, 555 F.3d
556, 561 (7th Cir. 2009) (citing 20 C.F.R. § 404.1527(d)(2)). In assigning Dr. Ali’s
opinion “little weight,” the ALJ said nothing regarding this inquiry.
“There is some disagreement within the Seventh Circuit as to whether or not
an ALJ’s failure to explicitly discuss all the factors in a decision requires remand on
its own.” Jones v. Colvin, 2015 WL 6407533, at *11 (N.D. Ill. Oct. 22, 2015) (citing
cases); see also Duran, 2015 WL 4640877, at *8 (criticizing the ALJ for “not
apply[ing] the clear two-step process,” and, instead, conflating it “into a single,
amalgamated discussion without so much as applying the regulations,” and noting
that “[t]he constant failure [of ALJs] to simply apply the two-step process in a clear
19
manner has resulted in two distinct—and difficult to reconcile—lines of cases in the
Seventh Circuit, . . . [o]ne . . . forgiving of the ALJ’s procedural snafu, [and] [t]he
other . . . much more restrictive”) (citations omitted). Regardless of which view the
Court were to adopt, however, the ALJ’s decision would be insufficient because he
failed to even articulate his decision in a manner that shows he considered, without
explicitly discussing, any of the required factors. See Schreiber v. Colvin, 519 Fed.
App’x 951, 959 (7th Cir. 2013) (unpublished); McCullough v. Apfel, 2000 WL
1657966, *4 (7th Cir. 2000) (unpublished).
3.
THE ALJ’S DECISION TO ACCORD DR. CARLTON’S
OPINION “SIGNIFICANT WEIGHT”
The record contains a report of a consultative examiner, Dr. Carlton, who
spent approximately thirty minutes obtaining Ritchie’s medical history and
performing the consultative examination. AR 238. The ALJ characterized
Dr. Carlton’s report as being “better articulated” than Dr. Ali’s opinion, and
accorded it “significant weight.” AR 29. In fact, however, the consultative report is
no less short on analysis than Dr. Ali’s opinion. In particular, Dr. Carlton stated in
his report that he believed Ritchie could perform tasks that involve lifting up to 20
pounds, but he does not provide any analysis or basis for that opinion. According to
the ALJ, Dr. Carlton’s physical examination of Ritchie “noted no abnormal heart
sounds and physical examination findings were all within normal limits.” AR 29.
But Dr. Carlton’s physical examination consisted of testing and finding no
deficiencies in Ritchie’s abilities to (1) walk on her toes, (2) walk on heels, (3) squat
and arise, (4) tandem walking, and (5) getting on and off the exam table. AR 241.
20
Similarly, Dr. Carlton tested and found no deficiencies in Ritchie’s abilities to:
(1) open a door using a knob, (2) squeeze BP cuff bulb, (3) pick up a coin, (4) pick up
and holding a cup, (5) pick up a pen, (6) button and unbutton, (7) zip and unzip, and
(8) tie shoe laces. AR 243. None of these findings regarding Ritchie’s “normal”
physical functioning demonstrate that Ritchie is capable of performing tasks that
require lifting of 20 pounds given her complaints of fatigue, dizziness, headaches,
and nausea. It would seem that a conclusion that Ritchie could perform tasks that
involve lifting 20 pounds would be supported by a test where Ritchie actually lifted
20 pounds. There is no indication such a test was given.
Nor does Dr. Carlton’s testing support the ALJ’s conclusions on Steps 4 and 5
that Ritchie could perform work as a realtor, which would require, according to the
light weight classification, lifting of up to 20 pounds occasionally and 10 pounds
frequently as well as “a good deal of walking or standing.” 20 C.F.R. § 416.967(b);
see also Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995) (“[a] job in [the light work]
category requires much walking or standing (off and on, for a total of approximately
six hours of an eight-hour workday”). In addition, it is common knowledge that a job
as a realtor involves frequent getting in and out of cars and repeated climbing of
stairs, all activities which, if Ritchie’s testimony is believed, would be difficult for
her. There were no tests (or at least evidence of them) measuring her ability to
climb stairs, such as actually demonstrating that she could do so. Although the ALJ
also cites to Dr. Carlton’s other findings beyond the 20-pound lifting capacity, those
findings are equally unenlightening on whether Ritchie could perform light work
21
such as a realtor performs. Dr. Carlton states only that he “believe[s] the claimant
[1] can sit and stand[,] . . . [2] can walk greater than 50 ft. without an assistive
device[,] . . . [3] can handle objects using both hands[,] [and] [4] can hear and
speak,” and that [t]his is a conservative estimate of this claimant’s functional ability
based on a time limited history, physical examination and review of medical records
available at the time of this consultative evaluation.” AR 241. In other words,
Dr. Carlton found no more than that Ritchie is alive and functions at a basic human
level. 15
“[I]f the treating physician’s opinion is inconsistent with the consulting
physician’s opinion, . . . the ALJ may discount it.” Ketelboeter, 550 F.3d at 625.
Other than Dr. Carlton’s conclusion that Ritchie could lift up to 20 pounds (which,
as discussed, is not supported by any tests or other evidence reported in his
opinion), Dr. Carlton’s report is not in conflict with Dr. Ali’s report. And lifting
ability is not the only (or necessarily even the most important) issue relevant to
whether Ritchie has the RFC for either her past job as a realtor or another job as
stated by the ALJ. Ritchie testified that she is disabled because of her fatigue,
It is interesting that Dr. Carlton qualifies his estimates regarding Ritchie’s
abilities based on the limited nature of his examination and review, but then uses
the word “conservative” as suggestive that Ritchie’s abilities could be greater than
his findings. Logically, the admittedly limited nature of his examination just as
likely could mean that Ritchie’s capabilities could be more limited, not greater, than
what he found. But the ALJ cited to Dr. Carlton’s “conservative estimate” statement
to buttress the ALJ’s conclusion that Dr. Carlton’s findings supported a “light work”
classification of functioning ability. AR 29. In fact, by referring to his estimates as
“conservative,” Dr. Carlton appears to recognize that they establish only a minimal
level of functional capacity. The ALJ erred in finding that the consultative report
speaks to anything beyond that minimal functioning level.
15
22
dizziness, headaches, and nausea, and her need to sleep intermittently throughout
day. Nothing in Dr. Carlton’s medical examination or opinion based on that exam
speaks to those issues. Nor do any of Dr. Carlton’s findings address whether
Ritchie’s symptoms would prevent her from standing or walking for a total of six
hours of an eight hour workday or prevent her from performing her past job as a
realtor or any jobs in the light work category. 16 Indeed, the ALJ’s reasons for
according Dr. Carlton’s opinion “significant weight” are almost identical to those
that were rejected in Beardsley, 758 F.3d at 839:
The ALJ considered Dr. Brill’s opinion more persuasive
because it was “consistent with the record as a whole.”
But as explained above, Ms. Beardsley’s daily activities
and reported capabilities were inconsistent with
Dr. Brill’s recommendations. Beyond noting that
Ms. Beardsley exhibited normal range of motion in her
joints, Dr. Brill provided no explanation for thinking that
she was able to spend so much time on her feet (let alone
climbing, operating foot controls, or crouching down). The
ALJ’s conclusory statement that these findings were
consistent with the record when in fact they are
contradicted by it was not enough to justify elevating
Dr Brill’s opinion over all others.
The ALJ’s conclusions regarding Dr. Carlton’s opinion are not supported by
substantial evidence. Accordingly, neither his decision to discount Dr. Ali’s opinion
nor his RFC “light work” findings is saved by his reliance on the consultative exam.
The ALJ stated that he accorded the opinions of two non-examining consultants
“slight weight,” yet, at the same time, he used those opinions to “corroborate”
Dr. Carlton’s findings. Id. at 33 (AR 29-30). The non-examining consultants made
similar findings as Dr. Carlton, so the ALJ’s attempt to both substantially reject
their opinions and at the same time rely on them to buttress Dr. Carlton is
somewhat perplexing.
16
23
4.
CONCLUDING OBSERVATIONS REGARDING
DR. ALI’S OPINION
All the above is not to say that the ALJ should have accorded Dr. Ali’s
opinion controlling weight or even some weight. In the first place, Dr. Ali’s opinion,
in the absence of further explanation, appears to suffer from some internal
inconsistencies. 17 While “internal inconsistencies may provide good cause to deny
controlling weight to a treating physician’s opinion,” Lehouillier v. Colvin, 633
Fed. App’x 328, 334 (7th Cir. 2015) (unpublished); see also Ketelboeter, 550 F.3d at
625 (“if the treating physician’s opinion is . . . internally inconsistent the ALJ may
discount it”), it is difficult to say from only the opinion itself whether those apparent
inconsistencies could have been explained if Dr. Ali had been contacted for further
information.
More importantly, “[t]he ‘treating physician rule’ does not apply to RFC
determinations by physicians; the extent of what a claimant can do despite her
limitations is committed to the exclusive discretion of the ALJ.” Bates, 736 F.3d at
1100 (citing 20 C.F.R. § 404.1545(a)(1) (defining RFC), and 20 C.F.R § 404.1527(d)
(noting that the final responsibility for determining a claimant’s RFC is reserved to
For instance, Dr. Ali answered “yes” to the question whether Ritchie reasonably
could be expected to have marked limitation in [her] ability to perform at a
consistent pace without an unreasonable number and length of rest periods due to
symptoms related to [her] conditions.” But she answered no” to the question
whether Ritchie reasonably could be expected to have “marked limitation in [her]
ability to complete a normal workday and workweek without interruptions from
symptoms related to [her] condition.” She then answered that she did not know
whether Ritchie could “reasonably be expected to have significant problems in
sustaining any type of full time work activity on a full time 5-day per week basis.”
AR 263.
17
24
the Commissioner)). Thus, only statements within Dr. Ali’s opinion “that do not
state what [Ritchie] can or cannot do in a given day constitute” opinions of a
treating physician “to which the ALJ must defer.” Id. (citing 20 C.F.R.
§ 404.1527(a)(2) (defining medical opinions)). Dr. Ali’s written report consists
primarily of medical opinions regarding Ritchie’s RFC, which are not entitled to
controlling weight. Nevertheless, even as to Dr. Ali’s opinions that fall in this
category, “the ALJ must consider [them] and should recontact the doctor for
clarification if necessary.” Barnett, 381 F.3d at 669; see also Smith, 231 F.3d at 437
(criticizing the ALJ for discounting the functional limitations set forth by treating
physician and stating that, if the ALJ was concerned that the medical evidence was
insufficient to support those limitations, he should have ordered more recent
medical records).
Neither the internal inconsistencies nor the lack of explanation for Dr. Ali’s
RFC determinations was discussed by the ALJ, and the reasons the ALJ did give for
rejecting Dr. Ali’s opinion either reveal faulty logic or are not properly explained
with reference to other evidence in the record. “[A]n administrative agency’s
decision cannot be upheld when the reasoning process employed by the decision
maker exhibits deep logical flaws, . . . even if those flaws might be dissipated by a
fuller and more exact engagement with the facts.” Carradine v. Barnhart, 360 F.3d
751, 756 (7th Cir. 2004) (internal citations omitted). Because the reasons the ALJ
gave for rejecting Dr. Ali’s opinions are legally insufficient and not supported by
25
substantial evidence, the ALJ’s decision must be reversed and the case remanded to
conduct a further inquiry.
B.
RITCHIE’S CREDIBILITY
Aside from Dr. Ali’s opinion and Dr. Carlton’s report, neither of which as
discussed are particularly compelling evidence, the evidence in the record regarding
Ritchie’s alleged disability consisted of Ritchie’s testimony. The ALJ discounted
Ritchie’s testimony for reasons Ritchie claims were not based on sufficient evidence.
The Court agrees. For instance, the ALJ relied on evidence in the record showing
that Ritchie jogged three times a week, four to five miles each time. Ritchie is not
entitled to benefits pre-dating her August 2011 application date, 18 and the evidence
of Ritchie’s jogging was from 2009. While the ALJ was entitled to consider all of the
evidence in the record, including evidence related to Ritchie’s condition in 2009, see
Frustaglia v. Sec’y of Health & Human Servs., 829 F.2d 192, 193 (1st Cir. 1987), the
fact that Ritchie jogged in 2009 is at most only slightly impeaching of Ritchie’s
testimony concerning her functional limitations in 2011, when she applied for
supplemental security benefits. 19
See SSR 83-20 (S.S.A. 1983) (“Under title XVI, there is no retroactivity of
payment. Supplemental security income (SSI) payments are prorated for the first
month for which eligibility is established after application and after a period of
ineligibility.”).
18
It was impeaching because there is evidence in the record that Ritchie may have
represented that she became disabled before 2009 when she was still jogging. See
AR 168 (disability report generated by the Social Security Field Office where
Ritchie was interviewed for her benefits application, which represents that the
“claimant’s alleged onset date” is “12/30/2007”). Assuming Ritchie did refer to this
date as the date when she first became disabled, that is only slightly impeaching
because she may not have understood the distinction between the date when she
19
26
The ALJ also erred in finding several points of potential inconsistencies in
Ritchie’s testimony without even asking Ritchie about them. See Scrogham v.
Colvin, 765 F.3d 685, 699 (7th Cir. 2014) (cautioning ALJs to make inquiries of the
claimant about any perceived inconsistencies in the record); Craft v. Astrue, 539
F.3d 668, 679 (7th Cir. 2008) (finding that an ALJ must not draw any inferences
about claimant’s condition from his lack of medical care, “unless the ALJ has
explored the claimant’s explanations as to the lack of medical care”). For instance,
the ALJ stated that Ritchie “stopped work because there was no more work
available and not due to her medically determinable impairment.” AR 26. Ritchie
testified, however, that she closed her broker business at the end of 2007 because
she became ill. AR 46. The ALJ apparently relied to the contrary on information
contained in one of the forms Ritchie completed, in which Ritchie stated that the
date she stopped working was “12/30/1994,” and, on the next line, stated that the
reason she stopped working was “no more work.” AR 172. The lack of work thus
appears to be in reference to an earlier period of employment shown on the same
form to have been from 1979 to 1993, R. 173, which employment is unrelated to her
relevant job history from the past fifteen years when she worked as a real estate
first experienced symptoms of her illness (2007 was when Ritchie was admitted to
the hospital following the incident when she fainted at home) and the date when
she met the definition of disabled under the rules and regulations of the Social
Security Administration. See Armstrong v. Comm’r, 160 F.3d 587, 590 (9th Cir.
1998) (the onset date is determined by the date when the impairment became
disabling and not just present). Also, even if she stopped working in 2007 because of
her illness although she was not yet disabled, that does not mean that her illness
did not get worse over the years and that she was not disabled as of her 2011
benefits application when it is undisputed that Ritchie’s current activities do not
include jogging.
27
agent. The ALJ also pointed out various notations in Ritchie’s medical records
saying that Ritchie denied suffering from dizziness, shortness of breath, or chest
pains. But, as previously noted, a person can have good and bad days. See, e.g.,
Bauer, 532 F.3d at 609 (faulting ALJ for being overly influenced by “hopeful
remarks” in the plaintiff’s treatment notes, such as she is doing “fairly well” or her
“reported level of function was . . . improved,” because it suggests a lack of
understanding that a chronic medical condition that is not necessarily disabling all
of the time may still prevent a person from performing a full-time job having
particular requirements). In addition, the medical records reflect out-of-court
statements purportedly made by Ritchie, and the ALJ failed to give Ritchie an
opportunity to explain by asking her at the hearing about the statements before
accepting them as true and using them to impeach her testimony. See Schickel,
2015 WL 8481964, at *14 (holding that the ALJ’s failure to ask the claimant about
perceived inconsistencies “undermines his assessment”).
Finally, the ALJ found Ritchie’s testimony to be inconsistent with the
testimony of her mother. But the minor differences in Ritchie’s mother’s testimony
noted by the ALJ are a thin reed for the ALJ to rely on for his conclusion that
Ritchie’s testimony concerning her daily activities and functioning was not
credible. 20 Moreover, even if the ALJ credited the level of functioning attributed to
Ritchie’s mother did not testify at the hearing but filed a Third Party Function
Report concerning Ritchie’s daily limitations dated May 17, 2011. AR 200. She
described Ritchie’s daily schedule as consisting of bible study two to three days a
week, a daily 1.5-hour nap around noon, talks on the phone, food preparation for
her and her son, and a ten minute walk. AR 201. She noted that Ritchie takes care
20
28
Ritchie by her mother, that still would not justify the ALJ’s RFC finding of light
work. As the Seventh Circuit has stated, the failure to recognize differences
between activities in daily living, where a person has more flexibility in scheduling,
can get help from other persons, and is not held to a minimum standard of
performance, versus a full-time job, where the opposite is true, “is a recurrent, and
deplorable feature of opinions by administrative law judges in social security
disability cases.” Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012); see also
Stage v. Colvin, 812 F.3d 1121, 1126 (7th Cir. 2016) (the court “has repeatedly held
improper” an ALJ’s determination that a claimant’s ability to care for herself and
family members means she is not disabled); Beardsley, 758 F.3d at 838 (finding that
claimant’s limited ability to care for her mother “lend[s] no support to the
conclusion that she would be able to spend six hours a day, every day, on her feet
working”); Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir. 2005) (remanding where
ALJ found claimant’s spinal disc disease-related pain allegations not credible based
on her ability to care for self and children). For similar reasons, the ALJ accorded
too much weight to the fact that Ritchie testified she walks for ten minutes every
other day. The ALJ commented that 4 to 6 blocks was an “impressive ability to
walk.” AR 26. But a 4 to 6 block walk every other day does not equate to a 6 to 8
hour work-day, nor does it account for Ritchie’s need to which she testified to sleep
of her teenage son, and is able to do light household chores such as laundry and
dishes. Id. She stated that Ritchie is able to grocery shop for about twenty to thirty
minutes weekly. AR 203. She estimated that Ritchie could walk for up to 20-25
minutes and stand for 15-20 minutes before needing a break. AR 205. She also
noted that Ritchie is now unable to partake in her previous exercise hobbies such as
biking and running. AR 204.
29
intermittently throughout the day. Cf. Carradine, 360 F.3d at 756 (“activities such
as walking in the mall and swimming are not necessarily transferable to the work
setting . . . A patient may do these activities . . . for therapeutic reasons, but that
does not mean she could concentrate on work . . . or could engage in similar activity
for a longer period”).
The illogical conclusions that the ALJ reached regarding Ritchie’s daily
activities are “especially relevant” here because the Seventh Circuit has specified
that “no employer is likely to hire a person who must stop working and lie down two
or three times a day for an hour at a time.” Roddy, 705 F.3d at 639; see also
Allensworth, 814 F.3d at 833 (a person “cannot hold a full-time job if he is unable to
stay awake for long periods of time or falls asleep unexpectedly”). The ALJ gave
only superficial treatment to the issues of Ritchie’s fatigue, dizziness, headaches,
nausea, and need to nap intermittently throughout the day, noting that Ritchie’s
testimony concerning her physical limitations from these symptoms was not
credible because the record showed she still drove a car, cooked meals regularly, has
maintained her weight, and has not required hospitalization or emergency room
treatment in either 2011 or 2012. AR 26-27. In addition, the ALJ found Ritchie’s
testimony concerning fatigue and need to sleep not credible only in light of the
testimony of her mother, which the ALJ said “indicate[d] a person who is up and
about more than the testimony suggests.” AR 27. In what way Ritchie’s mother’s
testimony indicated a person who was capable of work in the light category the ALJ
did not explain. “Although the ALJ need not discuss every piece of evidence in the
30
record, he must confront the evidence that does not support his conclusion and
explain why it was rejected.” Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir.
2004); see, e.g., Cuevas v. Barnhart, 2004 WL 1588277, at *15 (N.D. Ill. July 14,
2004) (“To the extent she chose not to address the issues of pain and naps because
she found Mr. Cuevas’ testimony on these issues to be incredible, the ALJ was
required to explain her reasoning.”). The ALJ failed to adequately address Ritchie’s
testimony concerning her specific symptoms, especially her fatigue, and failed to
adequately explain his reasoning behind his conclusion that Ritchie could maintain
a full time job despite her symptoms. See Allensworth, 814 F.3d at 835 (finding that,
given the claimant’s testimony, there was a “gaping hole in the record” regarding
evidence that plaintiff could “lift or carry weight, stand or sit for six hours in an 8–
hour workday, or maintain sufficient concentration to be able to perform simple,
repetitive
tasks,”
without
which the
claimant
“is disabled from
gainful
employment”).
C.
OTHER ISSUES
The Court will briefly address two other issues raised by Ritchie for reversal
of the ALJ’s decision.
1.
ONSET DATE
Ritchie argues that the ALJ erred when he did not consider adjusting the
onset date of her disability to September 29, 2011 (after her March 2011 benefits
application date), because her blood pressure readings “began to careen between
31
hypotension and hypertension” then. R. 24 at 9. The Social Security Administration
defines the onset date of disability as
“the first day an individual is disabled as defined in the
Act and the regulations. Factors relevant to the
determination of disability onset include the individual’s
allegation, the work history, and the medical evidence.
These factors are often evaluated together to arrive at the
onset date. However, the individual’s allegation or the
date of work stoppage is significant in determining onset
only if it is consistent with the severity of the condition(s)
shown by the medical evidence.
SSR 83-20 (S.S.A. 1983).
The ALJ did not make any finding as to the onset date of Ritchie’s disability,
and, as the Commissioner points out, his failure to do so was not error. See R. 29 at
10-11 (citing Sheck v. Barnhart, 357 F.3d 697, 701 (7th Cir. 2004) (“The ALJ did not
find that [plaintiff] was disabled, and therefore, there was no need to find an onset
date.”); Eichstadt v. Astrue, 534 F.3d 664, 667 (7th Cir. 2008) (“With no finding of
disability, there was no need to determine an onset date.”)). What Ritchie really is
arguing is that the Commissioner ignored the evidence from September 2011, and,
had he not done so, he may have found her disabled at least as of this date if not
earlier. The problem with this argument is that, as the Commissioner points out,
the post-application evidence cited by Ritchie shows that her blood pressure
readings were all “in the normal range per the definition [claimant] offered.” R. 29
at 9. Therefore, the September 2011 evidence that Ritchie believes the ALJ ignored
would not have affected the ALJ’s disability determination.
32
Nevertheless, Ritchie is correct that the ALJ has a duty to determine an
onset date if he were to find that Ritchie was disabled but the disability did not
arise until after the date of Ritchie’s application. See SSR 83-20 (S.S.A. 1983) (“the
only instances when the specific date of onset must be separately determined for a
title XVI case is when the onset is subsequent to the date of filing or when it is
necessary to determine whether the duration requirement is met”). Because the
Court finds in another part of this opinion that a remand is appropriate for a
different reason, Ritchie will have an opportunity if she wants to supplement the
record with additional information concerning her blood pressure readings, and can
present her argument regarding a later onset date for her disability in the first
instance to the ALJ.
2.
EVIDENCE OF PSYCHOLOGICAL DISABILITY
Ritchie also complains that the ALJ failed to fully develop the record related
to a potential psychological disability. “‘While it is true that the ALJ has a duty to
make a complete record, this requirement can reasonably require only so much.’”
Latkowski v. Barnhart, 93 Fed. App’x 963, 972 (7th Cir. 2004) (unpublished)
(quoting Scheck v. Barnhart, 357 F.3d 697, 702 (7th Cir. 2004)). “Mere conjecture or
speculation that additional evidence might have been obtained in the case is
insufficient to warrant remand.” Binion v. Shalala, 13 F.3d 243, 246 (7th Cir. 1994).
Ritchie has not sufficiently “set forth specific, relevant facts—such as medical
evidence—that the ALJ did not consider” on this point. Nelms v. Astrue, 553 F.3d
1093, 1098 (7th Cir. 2009). However, on remand, Ritchie may submit additional
33
evidence on her psychological condition if she wishes to have it considered by the
ALJ.
D.
DISPOSITION
The reasons the ALJ gave for rejecting the opinions of Ritchie’s treating
physician are inadequate to “build an accurate and logical bridge between the
evidence and the result.” Beardsley, 758 F.3d at 837. Moreover, this error was
compounded by the ALJ’s reliance on Dr. Carlton and adversely affected the ALJ’s
assessment of Ritchie’s credibility. Because the ALJ's decision, in its present form,
falls below the mark, the Court lacks a sufficient basis to sustain the ALJ’s ruling of
no disability. Without suggesting that the ALJ’s finding of no disability was
incorrect, the case must be remanded for further proceedings.
On remand, the Commissioner should conduct a reevaluation of Ritchie’s
complaints with due regard for the full range of medical evidence. While the
Commissioner need not seek additional evidence if the evidence is consistent and
sufficient on which to base a decision, see 20 C.F.R. § 404.1527(c)(3), 20 C.F.R.
§ 404.1527(c)(1); Luna v. Shalala, 22 F.3d 687, 693 (7th Cir. 1994), the Court does
not believe the current record satisfies that standard. Therefore, on remand, the
ALJ should seek further input from medical experts, including Ritchie’s treating
physician, regarding Ritchie’s physical impairments and their effects on Ritchie’s
RFC. The ALJ should then reassess Ritchie’s credibility, should seek further
clarification from Ritchie on evidence in the record the ALJ believes conflicts with
34
her testimony, and should fully explain the basis for the Commission’s decision in
accordance with the applicable rules and regulations.
CONCLUSION
For the foregoing reasons, Ritchie’s motion for summary judgment, R. 24, is
granted, the Commissioner’s motion for summary judgment, R. 29, is denied, and
the case is remanded for further proceedings consistent with this decision.
ENTERED:
___
Dated: December 16, 2016
35
Honorable Thomas M. Durkin
United States District Judge
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