Peebles v. Colvin
Filing
21
MEMORANDUM Opinion and Order Signed by the Honorable Michael T. Mason on 4/27/2016.(rbf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAWN MARIE HERROLD1,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
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No. 14 C 1142
Magistrate Judge Michael T. Mason
MEMORANDUM OPINION AND ORDER
Michael T. Mason, United States Magistrate Judge:
Presently before this Court is plaintiff Dawn Marie Herrold's ("Herrold" or
"claimant") motion for summary judgment seeking judicial review of the final decision of
the Commissioner of Social Security (the "Commissioner"). The Commissioner denied
her claim for disability insurance benefits under Sections 216(i) and 223(d) of the Social
Security Act ("the Act"), 42 U.S.C. §§ 416 and 423. The Commissioner filed a cross
motion for summary judgment asking this Court to 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 motion is denied.
I.
BACKGROUND
A.
Procedural History
Herrold filed her application for disability insurance benefits on August 11, 2011,
alleging a disability beginning on September 10, 2010. (R. 23.) Claimant identified her
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Formerly Dawn Marie Peebles
disabling conditions as fibromyalgia, asthma, arthritis, thyroid disease, and hernia
repair. (R. 149.) Claimant's application was denied administratively on November 4,
2011, and upon reconsideration on February 8, 2012. (R. 90.) She filed a timely
request for an administrative hearing, and on September 7, 2012, claimant appeared
with counsel via video teleconference before ALJ Daniel Dadabo. (R. 54, 56, 58.) On
November 19, 2012, the ALJ issued a decision denying Herrold's claim for benefits. (R.
20.) Claimant filed a timely request for review. (R. 15.) The Appeals Council denied
that request, and the ALJ's decision became a final decision. Claimant then sought
judicial review of the ALJ's decision, and filed this action in the District Court.
B. Medical Evidence
1. Treating Physicians
Between February and March 2010, Herrold saw Dr. Palmer Blakley four times
for pressure on her chest. (R. 255, 257, 259, 345.) On February 23, 2010, Dr. Blakley
noted that there was no sign of active chest disease. (R. 345.) On September 12,
2010, another physician, Dr. Charles Beck, examined claimant. He noted that Herrold
was a "perennial asthmatic," and stated that her symptoms included pain, dyspnea, and
discomfort increasing in the right chest. (R. 214.) Her CT scan showed bilateral
sub-segmental atelectasis, and after a test for pulmonary function, his impression was
that Herrold had a "very modest obstructive ventilator defect." (R. 224.) On September
22, 2010, Dr. Beck opined that claimant had pericardial fluid, which causes her “a little
discomfort.” (R. 213.) He was able to reproduce pain with his finger which he said
could be fibromyalgia. (R. 213.)
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On September 23, 2010, Dr. Miranda Huffman noted that Herrold suffered from
pain in multiple joint sites, which is likely caused by fibromyalgia. (R. 249.) She further
noted that she had a normal gait and station, with no tenderness, no decreased range
of motion, no instability, and no abnormal strength. (R. 249.)
Herrold saw Dr. Suman Seita on November 2, 2010. (R. 322.) Dr. Seita noted
that Herrold had pain all over her body, that she rated her pain as a 10 of 10. (R. 322.)
She had more pain in her low back and in both knees, and she has had this for 5 years.
(Id.) Dr. Seita noted that Herrold also feels that her knees are giving out on her and she
has difficulty lifting her arms. (Id.) She rated her knee strength at 4 out of 5. (R. 323.)
Her neurological assessment revealed numbness and tingling in both hands, and her
functional mobility was limited. (Id). She had difficulty walking and reaching overhead.
(Id.) Dr. Seita stated that Herrold agreed to undergo physical therapy, but that she has
poor tolerance for the exercises. (R. 324.)
Her physical therapist, Charmaine F. Boncalon, saw Herrold in November of
2010. (R. 321.) Herrold told Ms. Boncalon that she had bad cramps at night after doing
her exercises, but she has an increasing tolerance for the exercises. (Id.) Claimant
also had tingling on both hands when doing exercises. (Id.) Ms. Boncalon noted that
Herrold tolerated her physical therapy treatment well with slight increase in leg pain.
(Id.)
Dr. Seita diagnosed Herrold with fibromyalgia and stated that she was in so
much pain after she did an exercise, she could not sleep even if she already took her
prescribed pain pill. (R. 291.) She also had “lots of cramping,” and when she is not
doing anything at home, she feels better. (Id.) Once she starts moving or walking, she
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has more pain. (Id.) Dr. Seita stated that with certain stretches, she had cramps, but
the cramps were relieved with other stretches that caused tingling in her left foot. (Id.)
She continued to have pain with walking, reaching, and bed mobility. (Id.)
A physical therapy progress report dated December 21, 2010 stated that
Herrold's complaints included increased pain when moving around, and her functional
limitations included pain when walking, reaching, and bed mobility. (R. 319.) A
subsequent medical report, dated August 19, 2011, identified Herrold's fibromyalgia as
being chronic in nature. (R. 241.) Herrold's other "major problems" were identified in a
September 15, 2011 medical record as hypothyroidism and asthma allergic rhinitis, and
her "other problems" were unspecified chest pain and esophageal reflux. (R. 236.) At
the time, she was taking 10 different medications on a daily basis. (R. 238, 240.)
On October 25, 2011, Dr. Humaira Khan reported that Herrold has muscle aches,
muscle weakness, athralgias/joint pain, and back pain attributable to her fibromyalgia.
(R. 389.) On November 11, 2011, Dr. Khan noted that claimant's fibromyalgia
prognosis was unpredictable and could last at least twelve months. (R. 377.) Her
symptoms were listed as multiple tender points, non-restorative sleep, chronic fatigue,
morning stiffness, muscle weakness, frequent severe headaches, and anxiety. (Id.)
Emotional factors also contributed to the severity of her symptoms and functional
limitations. (Id.) Her pain was in her cervical spine; right and left shoulders; right, left,
and bilateral arms; and right, left, and bilateral knees, ankles, and feet. (R. 378.) Her
pain was constant, but changing weather, fatigue, movement, overuse, cold
temperatures, stress, and static position are factors that precipitate the pain. (Id.)
Dr. Khan noted that Herrold can walk one block without rest or severe pain. (Id)
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She can sit for 20 minutes and stand for 15 minutes before needing to get up or sit
down. (Id.) Additionally, with normal breaks, she can sit, stand or walk for less than two
hours total in an 8-hour working day. (Id.) Dr. Khan wrote that claimant requires a job
that permits shifting positions at will from sitting, standing, or walking, and that should
include walking around every 20 minutes during the 8-hour work day. (Id.) Dr. Khan
stated that Herrold will sometimes need to take unscheduled breaks every 45 minutes
during the work day, and during that break, she will need to sit quietly. (Id.) With
prolonged sitting, her legs need to be elevated at a 90-degree angle. (R. 379.)
Dr. Khan further noted that Herrold can rarely twist, stoop/bend, crouch/squat,
climb ladders, climb stairs, look down, or turn her head. (R. 379.) Claimant can only
hold her head in a static position occasionally. (Id.) During an 8-hour work day, she
can use her hands, fingers, or arms 25 percent of the time for grasping, turning, or
twisting objects; she can also manage fine manipulations of her fingers; or reaching in
front of the body and overhead. (R. 380.) Dr. Khan estimated that Herrold is likely to be
off task such that it would interfere with her attention and concentration for 25 percent or
more of the work day, and she is capable only of low stress work. (Id.) Dr. Khan noted
that Herrold's condition is likely to produce good days and bad days, which will cause
her to be absent from work more than 4 days per month. (Id.) These symptoms and
limitations first appeared as early as 1 year ago. (Id.)
On April 2, 2012, Dr. Mihaela Mihailescu, a rheumatologist, examined claimant.
She noted "minimal joint space narrowing involving proximal interphalangeal joints of
both hands… Osseous alignment is maintained without acute fracture of dislocation."
(Id.) Her impression was that claimant was experiencing "mild degenerative
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changes…without acute osseous abnormality." (Id.)
On April 30, 2012, claimant reported to Dr. Mihailescu that her pain was
everywhere and that it was all the time. (R. 436.) She rated both her pain and her
fatigue at a 10 out of 10. (R. 437.) She reported pain in her arms and knees and
difficulty standing. (R. 438.) Her physical examination noted normal expansion in the
chest and clear auscultation in the lungs. (Id.) The examination also reflected all over
fibromyalgia tender points but nothing else notable. (R. 439.)
On June 28, 2012, Dr. Mihailescu noted that claimant's fibromyalgia was active.
(R. 439.) Claimant reported that her hip pain was constant and she rated it a 6 out of
10. (R. 430.) She complained of fatigue, dizziness, shortness of breath, difficulty
sleeping, memory loss, joint pain and stiffness, back pain and muscle pain. (Id.) She
also complained of tenderness all over her body. (R. 433.) She was prescribed
physical therapy.
During this time, claimant also suffered from leiomyoma of the uterus and ovarian
cysts. (R. 462.) A report dated June 18, 2012 noted claimant’s “long history of uterine
fibroids.” (R. 468.) She ultimately had a hysterectomy in August of 2012. (Id.)
2. Agency Consultant
Dr. Dennis Malecki examined Herrold on October 18, 2011. (R. 331.) His clinical
impression was that claimant suffers from fibromyalgia and asthma. (R. 335.)
Herrold's past medical history indicated that she suffered from asthma, hypothyroidism,
gastroesophogeal reflux disease (GERD), and fibromyalgia. (R. 332.) She had two
prior surgeries, a cholecystectomy and an umbilical hernia repair. (Id.) She also had an
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additional hospitalization for an asthma attack. (Id.)
Dr. Malecki's report also stated that claimant alleges disability due to
fibromyalgia. (R. 331.) Claimant stated that she has had constant and unrelenting pain
and stiffness in her muscles since 2010. (Id.) The pain is in her neck, back, upper
arms, and lower extremities, particularly in her elbows, knees, and lower back. (Id.)
She is uncomfortable at rest, but physical activity increases her discomfort. (Id.)
Repetitive activities increase the pain even more. (Id.) She reported that her pain is a 6
or 7 out of 10 but that it increases to a 10 of 10 with physical activity. (Id.)
In terms of her daily activities, Herrold told Dr. Malecki that she can bathe, dress,
and cook, but she performs these with difficulty. (Id.) She can go grocery shopping and
travel, but she limits her travel to 20 minutes because of the discomfort she feels when
she is in one position. (Id.) Claimant stated that she is able to do paperwork and pay
bills, but has to do these with breaks, because of pain and cramping in her hands. (Id.)
She can sit for 20 minutes and stand for 10-15 minutes. (Id.) She stated that she can
walk on a level surface for 1-2 blocks and can carry approximately ten pounds. (Id.)
She is able to do her household chores, but she does only one chore per day. (Id.)
She limits her physical activity and takes frequent breaks. (R. 331.)
During the exam, Dr. Malecki observed that Herrold expressed discomfort almost
continuously, and especially with physical activity, changing positions, moving her head,
and moving her arms or legs. (R. 332.) He noted that she has a full range of motion at
the elbows and wrists, but at the shoulders, abduction was limited bilaterally to 90
degrees. (R. 333.) Herrold stated she was unable to raise her arms further because of
discomfort. (Id.) She experienced no joint inflammation, effusion, or deformity, but
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there was tenderness to palpation over all muscle groups. (Id.) In the lower
extremities, Dr. Malecki observed that she has a full range of motion in the hips, knees,
and ankles bilaterally. (R. 334.) In her back and spine, she had a full range of motion,
with tenderness over the paravertebral muscles and trapezius muscles noted. (Id.)
Claimant experienced discomfort with all range of motion in her lumbar spine. (Id.)
Dr. Malecki noted that claimant had moderate difficulty getting on and off the
examination table and squatting. (Id.) She was unable to heel walk, and showed
moderately severe unsteadiness with tandem gait. (Id.) She was able to squat to a
degree of knee flexion of 80 degrees, but sitting and standing were otherwise
unremarkable. (Id.) Claimant was able to briefly balance on a single leg and bear
weight bilaterally, but she experienced significant difficulty with her left leg. (Id.)
Additionally, Dr. Malecki noted no atrophy of the hand musculature, and her hand
grasp was symmetrical yet slightly decreased at 4/5 bilaterally. (Id.) She could make a
fist and fully extend her fingers bilaterally, and could oppose her fingers to his thumb
bilaterally. (Id.) Dr. Malecki observed that claimant is alert and oriented to time, place,
and person, and her recent and remote memory are intact. (R. 335.) During the
examination, claimant displayed a normal range of comprehension, reasoning, and
concentration. (Id.)
B. Claimant's Testimony
On September 7, 2012, claimant appeared with counsel before the ALJ. (R. 58.)
The Vocational Expert, Brian Harmon ("the VE"), was also present at the hearing. (Id.)
Claimant was 49 years old at the time of the hearing. (R. 60.) She currently lives with
her son and her husband, to whom she had just recently married. (R. 65.) She was
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living with her 18-year-old son when she applied for disability. (R. 65, 66.) She has a
high school education. (R. 80.)
She testified she has been seeing Dr. Khan for a year and a half. (R. 60.) She
has also been seeing Dr. Mihailescu, her rheumatologist, for five to six months. (R. 60.)
Claimant testified that in 2009, she was laid off from her job as a loan processor. (R.
61.) At that time, her fibromyalgia had not yet become an issue. (R. 61.) In September
2010, the fibromyalgia became an issue for her, and she believed that had she still been
employed at that time, the fibromyalgia would have kept her from working because she
experienced such intense pain all over her body. (R. 62.) During this time, it became
very difficult for her to handle tasks at home, so she knew she would not be able to
work. (Id.)
Claimant testified that she did some physical therapy in 2010, but she stopped.
(R. 61.) She stated that her gynecologist, Dr. James, had recommended that she wait
until after her hysterectomy to continue with her physical therapy. (Id.)
Claimant also testified that her problems have become increasingly worse. (Id.)
While on her prescription medications, her average daily pain is a 6 or 7 out of 10. (R.
68, 69.) She experiences this pain 3 or 4 times per week for, on average, 4 to 6 hours.
(R. 72.) Her knees ache all the time, her muscles hurt, and she feels weak. (R. 67.)
If
she moves the wrong way, it feels as though something is tearing in her shoulders; it is
a sharp pain. (R. 68.) After twenty minutes, she experiences "very intense pain" in her
knees and back, which gets worse the longer that she sits or stands. (R. 64.)
Sometimes the pain is in her hip, ankles, wrists, fingers, or the tips of her fingers. (R.
68.) Every day, there is pain in a different spot, but her back and knee pain is constant.
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(Id.) Her sleep is interrupted because of cramps in her legs. (Id.) The longest she can
do an activity before having to rest is 20 minutes because she gets very tired and
fatigued. (R. 64.) When she puts her legs up, it eases her knee and back pain. (Id.)
Claimant testified that she usually gets up around 8:00 am and her whole body
aches and feels stiff. (R. 62.) She then takes care of her dogs. (Id.) She sits in a chair
in the family room to "kind of get unstiff." (Id.) Then, she makes coffee and watches
television. (Id.) She testified it takes her an hour before she starts feeling able to walk
around. (Id.) Between 10:00 am and 11:00 am, she sits at her computer, or pays her
bills. (Id.) Between 12:00 pm and 1:00 pm, she takes a shower, makes her bed, and
goes back to watching television. (R. 62-63.) All the while, her back, knees, and arms
hurt her. (R. 63.) She occasionally grocery shops in the afternoon, and after she
returns home, she puts her groceries away, and watches television again until 5:30 or
6:00 pm. (Id.) She cooks dinner, which is difficult for her, because it hurts her arms to
stir on the stove. (Id.) After she finishes cooking, she rests the remainder of the night.
(Id.) The next day, she washes the dishes because she is exhausted by the time she
finishes cooking. (Id.) On some days, she tries to do light cleaning, such as
vacuuming, cleaning the bathroom, and laundry. (Id.)
Throughout the day, she gets up every 20 minutes to walk around and stretch
her legs, and she elevates her legs 8 times a day for 15 to 20 minutes at a time. (R. 63,
71.) If she is already standing, she has to sit down every 10 to 15 minutes for 5 minutes
at a time. (R. 71, 72.) Her pain intensifies the longer that she sits, stands, and walks.
(R. 77.)
On days when her symptoms are not as bad, Herrold drives to the mall about 10
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to 15 miles away from her home once or twice a month; this is the furthest she travels
from her home. (R. 64-65.) These trips usually last up to two hours. (R. 65.) When
her symptoms are more severe, she stays home and rests in her lounge chair with her
legs up. (Id.) She does not need help with dressing or hygiene, but her son helps her
with the chores. (R. 67.)
The ALJ asked claimant to explain why, with this level of discomfort, it will be
difficult for her to do her old jobs. (R. 69.) She testified that it is hard for her to sit for
long periods, and when reaching for the phone or files she has no grip. (R. 69.) Her
hands ache when she grabs items, and she drops objects. (R. 69.) She stated,
“everything just aches, just feels heavy... even picking up something light to me is very
heavy, and it hurts, intensifies, it goes up my arm.” (R. 69.) She estimated that in an
8-hour period, she would last 2 hours using her hands to grip and type. (R. 75.) Also,
she could only be on her feet standing and walking for 1 hour throughout the day. (R.
76.) She cannot concentrate for more than 15 to 20 minutes before she becomes “off
focus” and “forgetful.” (R. 75-76.)
Herrold's counsel asked her to explain how much work she would have to miss at
her old job. (R. 72.) Before her fibromyalgia became an issue for her, she was very
busy with work and was always moving, typing, faxing, using the phone, copying,
reaching for files, reaching for a stapler, and using the computer. (R. 73.) She was also
able to sit at her desk for 3 to 4 hours at a time without moving, getting up, or taking a
break. (Id.) She replied that now she would have missed at least 2 or 3 days a week,
depending on the week. (R. 72.)
Herrold also stated that she has trouble breathing and contracted respiratory
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infections from the paper, dust, cologne, and perfume at her work. (R. 73.) She uses
an inhaler and a puffer, but does not use a nebulizer. (R. 74.) She experiences
dizziness for 2 hours of the day, and for 15 to 20 minutes at a time. (R. 75.) She says
she sits down and then feels okay. (Id.) In the past, she took Meclizine for the
dizziness, but the medicine made her sick. (Id.)
C. Vocational Expert's Testimony
The VE testified that Herrold's work as a loan processor over the past 15 years
would best be characterized as a mortgage loan processor. (R. 80.) The Dictionary of
Occupational Titles ("DOT") lists this position at the sedentary exertional level. (Id.)
Claimant performed the job at the light exertion level. (Id.) Herrold's particular job has
an SVP of 5, which is skilled, and means that the individual needs to do the job at least
one to two years to become proficient. (Id.) The VE testified that Herrold does not have
any additional education or preparation that would allow for direct entry to skilled work
or a skilled position. (Id.)
The ALJ reported that the state agency found Herrold, despite her impairment,
able to do light work subject to occasional postural limitations. (R. 81.) "Postural"
pertains to actions such as balancing, stooping, crouching, kneeling, crawling, climbing
ladders, and ascending ramps and stairs. (Id.) For manipulative limitations, the state
restricted her overhead reaching to occasional. (Id.) For environmental limitations, the
state restricted excessive, dust, fumes, odors, or temperature extremes. (Id.) The VE
testified that if the state findings represent the most that Herrold can do, she would be
able to go back to her work as a loan processor. (Id.) Other available jobs include a
telephone answering service operator, code 235.662-026; registration clerk, code
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205.362-042; and credit card clerk, code 209.587-014. (R. 82.) These are available in
the region, and all are at the sedentary exertion level with a SVP of 3. (R. 81-82.) All
three of the jobs require very good use of the hands. (R. 85.) The VE also
recommended those jobs that are considered semi-skilled work, because claimant has
transferrable work skills, identified by DI-25015.015. (R. 83.)
Additionally, the VE testified that a person who is absent 2 days a week, or
approximately eight days per month, is going to have excessive absenteeism. (R. 84.)
In his experience, the acceptable threshold for working in competitive employment, or
that for which claimant is qualified, is one day per month. (Id.) Any more absences
would preclude her employment. (Id.) In these types of positions, individuals need to
be alert and on-task at least 85 percent of the day, and any less would preclude
employment. (Id.) Thus, if an individual has to take an unscheduled break every 20
minutes, it is unlikely that the individual is going to consistently meet the 85 percent
threshold. (R. 85.) Similarly, if an individual has to elevate her legs approximately 8
times a day, it would preclude competitive employment. (R. 85-86.) If, for example, she
elevated her legs outside of one of the scheduled breaks for 15 to 20 minutes, during
the portion of the day when she was expected to be on-task, the action would preclude
her from competitive employment. (R. 86.) For a new employer, it would require an
accommodation not normally extended. (Id.) Therefore, there is no work for an
individual who could sit less than 2 hours in an 8-hour work day, and stand or walk less
than 2 hours in an 8-hour workday. (R. 87.) In other words, an individual limited to only
4 hours of work in a workday would be precluded from employment. (Id.)
II. LEGAL ANALYSIS
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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); 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.
Perales, 402 U.S. 389, 401 (1971)). We must consider the entire administrative record,
but will not “re-weigh evidence, resolve conflicts, decide questions of credibility, or
substitute our own judgment for that of the Commissioner.” Lopez v. Barnhart, 336 F.3d
535, 539 (7th Cir. 2003) (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).
In addition, while the ALJ “is not required to address every piece of evidence,”
she “must build an accurate and logical bridge from the evidence to [her] conclusion.”
Clifford, 227 F.3d at 872. 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) (quoting Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985)).
B. Analysis Under the Social Security Act
To be entitled to disability insurance benefits, a claimant must establish that he or
she is "disabled" under sections 216(i) and 223(d) of the Social Security Act. A person
is disabled under the Act if "he or she has an inability to engage in any substantial
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gainful activity by reason of a 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 twelve months." 42 U.S.C. § 423(d)(1)(A).
In determining whether a claimant is disabled, the ALJ must consider the
following five-step inquiry: (1) whether the claimant is currently employed, (2) whether
the claimant has a severe impairment, (3) whether the claimant's impairment is one that
the Commissioner considers conclusively disabling, (4) if the claimant does not have a
conclusively disabling impairment, whether he can perform his past relevant work, and
(5) whether the claimant is capable of performing any work in the national economy.
Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). 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, at step one, the ALJ determined that claimant had not engaged in
substantial gainful activity since September 10, 2010, the alleged onset date of her
disability. (R. 24.) At step two, the ALJ found that claimant had the following severe
impairments: fibromyalgia and asthma. (R. 25.) The ALJ determined that these
impairments were severe because they cause more than a minimum impact on
functioning. (R. 25.) At step three, the ALJ determined that claimant does not have an
impairment or combination of impairments that meets or medically equals the severity of
one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 26.) 20
C.F.R. 404.1520(d); 20 C.F.R. 404.1525; 20 C.F.R. 404.1526.
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Before moving to step four, the ALJ must first determine claimant's residual
functional capacity or “RFC”. An individual's RFC is her ability to do physical and
mental work activities on a sustained basis despite limitations from her impairments. In
making this finding, the ALJ must consider all of claimant's impairments, including those
that are not severe. 20 C.F.R. 404.1520(e); 20 C.F.R. 404.1545; SSR 96-8p. At step
four, the ALJ found that claimant has the RFC to perform light work as defined in 20
C.F.R. 404.1567(b), subject to only occasional ramps or stairs, occasional ladders,
ropes and scaffolds, occasional balancing, stooping, crouching, crawling and kneeling,
and no excessive dust, fumes, odors, or temperature extremes. (R. 26.) Last, at step
five, the ALJ found that claimant is capable of performing her past relevant work as a
mortgage loan processor, DOT 249.362-022. (R. 29.) He determined that this work
does not require the performance of work-related activities precluded by claimant's
RFC, 20 C.F.R. 404.1565. (R. 29.)
Claimant now argues that her case should be remanded on four grounds: (1) the
ALJ's discussion of whether claimant met or equaled a listing was impermissibly
cursory; (2) the ALJ improperly assessed claimant's credibility when he determined that
her statements concerning her symptoms were inconsistent with the assessed RFC; (3)
the ALJ assessed claimant's RFC incorrectly; and (4) the Appeals Council erred in
rejecting new and material evidence that claimant submitted after the hearing. We
address each of claimant's arguments below.
1. The ALJ's Discussion of the Listings Does Not Require Remand
Claimant first argues that the ALJ failed to properly consider whether claimant
met or equaled Listing 14.09 at step three of the disability analysis. At step three of the
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ALJ's analysis, "evidence demonstrating the claimant's impairments is compared to a
list of impairments presumed severe enough to preclude any gainful work." Rice v.
Barnhart, 384 F.3d 363, 365 (7th Cir. 2004). In order for a claimant's impairment to
meet a listing, all specified medical criteria must be satisfied. Maggard v. Apfel, 167
F.3d 376, 380 (7th Cir. 1999). An ALJ should mention by name the specific listings he
is considering. Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006). His failure to
mention the specific listings at step three, when combined with a "perfunctory analysis,"
requires remand. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004); Brindisi ex rel.
Brindisi v. Barnhart, 315 F.3d 783, 786 (7th Cir. 2003); Steele v. Barnhart, 290 F.3d
936, 940 (7th Cir. 2002).
Here, at step three, the ALJ only included one sentence in his analysis. He
stated: "[Claimant's] asthma does not correspond to the specific medical requirements
of Listings 3.02 and 3.03, and has not eventuated in emergency room treatment or
hospitalization." (R. 26.) The ALJ never identified Listing 14.09, which is the listing
associated with fibromyalgia. (Id.) However, remand is not automatic where the ALJ's
consideration of the listing criteria is apparent from the entirety of his opinion. Barnett v.
Barnhart, 381 F.3d 664, 668 (7th Cir. 2004); Ahmad v. Colvin, 2016 WL 98567, at *10
(N.D. Ill. Jan. 8, 2016) ("nor must a court discount a discussion that provides the
necessary detail to review the ALJ's step 3 determination in a meaningful way solely
because it appears in a later section of the ALJ's decision."); see also Rice, 384 F.3d at
369-70 (declining to remand where there was discussion of the listing in the record);
Zatz v. Astrue, 346 Fed. App'x 107, 110 (7th Cir. 2009) (declining automatic remand
based on the presence of listing consideration elsewhere in the record).
17
After our review of the ALJ's opinion, although he did not mention the listing
associated with fibromyalgia, we are satisfied that he adequately considered claimant's
fibromyalgia, the evidence supporting her limitations, and the criteria for meeting this
listing. (R. 27-28.) The ALJ noted that Dr. Mihailuscu was the physician primarily
treating claimant's fibromyalgia and that her treatment notes consisted mostly of a
recitation of claimant's subjective complaints. (R 28.) The ALJ also noted that Dr.
Mihailescu's medical observations were “intermittent” and included ambiguous
observations about claimant's limitations. (Id.) The ALJ stated that Dr. Khan's
objective findings regarding claimant's fibromyalgia symptoms were also not
remarkable. (Id.) Therefore, we are satisfied that the ALJ's opinion adequately
discusses the criteria in Listing 14.09. While we agree with claimant that it would have
been better had the ALJ specifically included this discussion in his step-three analysis,
because the relevant evidence was discussed elsewhere in this opinion, this is not
grounds for remand. Ahmad, 2016 WL 98567, at *10 ("while the ALJ did omit any
reference to any of the 14.00 Listings in his step three discussion, it is clear from the
remainder of his opinion that the ALJ considered the plaintiff's impairments…, noting
that they did constitute severe impairments and discussing their effects at length in
assessing plaintiff's RFC.").
Similarly, Herrold argues that the ALJ's step three analysis regarding Listings
3.02 and 3.03, which relate to her asthma, was too cursory. Listing 3.02 applies to
"chronic pulmonary insufficiency," which requires "chronic obstructive pulmonary
disease", "chronic restrictive ventilator disease," or "chronic impairment of gas
exchange due to clinically documented pulmonary disease." 20 C.F.R. Pt. 404, Subpt.
18
P, App. 1, § 3.02. Listing 3.03 applies to "asthma," but requires chronic asthmatic
bronchitis or attacks that occur at least every two months or six times of year which
require physician intervention. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 3.03.
Alternatively, an in-patient hospitalization for longer than 24 hours for the control of
asthma counts as two attacks. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 3.03. The ALJ
pointed out that claimant last saw a pulmonologist in September of 2010 and at that
time, it was noted that she had a "very modest obstructive ventilator defect." (R. 29.)
The ALJ also noted that her attacks have "not eventuated in emergency room treatment
or hospitalization." (R. 26.) Again some of this discussion was noted elsewhere in the
ALJ's decision, but regardless, we are satisfied that the ALJ's discussion of the criteria
for these listings was sufficient. Rice, 384 F.3d at 369-70; Ahmad, 2016 WL 98567, at
*10.
Next, claimant argues that her November 2, 2010 and November 14, 2011
examination results were not mentioned in the listing analysis and that these records
favor allowance of her disability claim. Remand is required where the ALJ failed to
acknowledge parts of the record that could in fact meet or equal a particular listing.
Minnick v. Colvin, 775 F.3d 929, 935-36 (7th Cir. 2015); Kastner v. Astrue, 697 F.3d
642, 647-48 (7th Cir. 2007). However, the ALJ is not required to discuss every piece of
evidence. Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). The ALJ need only
support his determinations with substantial evidence, and if he does so, this Court will
not displace the ALJ's judgment by reconsidering facts or evidence. Id; Skinner v.
Astrue, 478 F.3d 836, 841 (7th Cir. 2007).
We have reviewed these two records and we are not convinced that these
19
records should have necessarily been included in the ALJ's step-three analysis. The
first is a physical therapy report from 2010, in which it is noted that claimant has trouble
with walking, bed mobility and reaching overhead. (R. 323.) The second is a medical
report, in which Dr. Khan noted that everything about claimant's range of motion was
normal, her strength was between a 3/5 and a 4/5, and her reflexes, sensory
examination, and coordination, station and gait were also normal. (R. 397.) Neither of
these records establishes that the listings criteria for either impairment was met. As we
noted above, the ALJ did generally address Dr. Khan's notes regarding claimant’s
fibromyalgia and he found that these notes did not establish that the listings criteria
were met. Because the ALJ is not required to discuss every piece of evidence in the
record, it is not imperative that these particular records be included in the listings
analysis. Therefore, we disagree with claimant's argument that the ALJ's omission of
these two records requires remand.
2. The ALJ Failed to Consider Certain Evidence in His Credibility
Analysis
Claimant also argues that the ALJ's credibility determination was erroneous and
requires remand. As an initial matter, we note that the SSA has recently updated its
guidance about evaluating symptoms in disability claims. See SSR 16-3p, 2016 WL
1119029 (effective March 28, 2016). The new ruling eliminates the term "credibility"
from the SSA's sub-regulatory policies to "clarify that subjective symptom evaluation is
not an examination of the individual's character." Id. at *1. Though SSR 16-3p
post-dates the ALJ's hearing in this case, the application of a new social security
regulation to matters on appeal is appropriate where the new regulation is a clarification
20
of, rather than a change to, existing law. Pope v. Shalala, 998 F.2d 473, 482-483 (7th
Cir. 1993). In determining whether a new rule constitutes a clarification or a change,
courts give "great weight" to the stated "intent and interpretation of the promulgating
agency." Id. at 483. Though a statement of intent is not dispositive, the courts defer to
an agency's expressed intent to "clarify" a regulation "unless the prior interpretation…is
patently inconsistent with the later one." Id.; see also First Nat. Bank of Chicago v.
Standard Bank and Trust, 172 F.3d 472, 479 (7th Cir. 1999); Homemakers North Shore,
Inc. v. Bowen, 832 F.2d 408 (7th Cir. 1987).
Here, the SSA has specified in its new SSR that its elimination of the term
"credibility" in subjective symptom evaluation is intended to "clarify" its application of
existing rules and to "more closely follow our regulatory language regarding symptom
evaluation." SSR 16-3p, 2016 WL 1119029 at *1. Moreover, the two SSRs are not
patently inconsistent. Indeed, a comparison of the two reveals substantial consistency,
both in the two-step process to be followed and in the factors to be considered in
determining the intensity and persistence of a party's symptoms. Compare SSR 16-3p
and SSR 96-7p. Stated differently, "[t]he agency has had only one position, although it
has expressed that position in different words." Homemakers N. Shore, Inc., 832 F.2d
at 413. Therefore, it is appropriate to evaluate claimant's credibility argument in light of
the guidance the Administration has provided in SSR 16-3.
It remains the case that because the ALJ is in the best position to determine a
witness's truthfulness and forthrightness, courts afford the ALJ's credibility
determinations special deference. Nelson v. Apfel, 131 F.3d 1228, 1237 (7th Cir. 1997).
In assessing an ALJ's credibility determination, this Court will not undertake a de novo
21
review of the medical evidence. Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008).
Instead, this Court will affirm the ALJ's determination if it was reasoned and supported
by the record. Skarbek v. Barnhart, 390 F.3d 500, 505 (7th Cir. 2004). The court will
not overturn an ALJ's credibility determination unless it is "patently wrong." Shideler v.
Astrue, 688 F.3d 306, 310-11 (7th Cir. 2012).
Under SSR 16-3, the ALJ must still consider all of an individual's symptoms,
including pain, and the extent to which the symptoms can reasonably be accepted as
consistent with the objective medical and other evidence in the record. In assessing
symptoms, the ALJ should consider elements such as "objective medical evidence of
the impairments, the daily activities, allegations of pain and aggravating factors,
functional limitations, and treatment (including medication)." Prochaska v. Barnhart,
454 F.3d 731, 737 (7th Cir. 2006); SSR 16-3, 2016 WL 1119029.
Turning to claimant's credibility argument here, she states that the ALJ
improperly discredited her testimony when fashioning the RFC. The RFC must be
assessed based on all the relevant evidence in the record. 20 C.F.R. § 404.1545(a)(1).
Claimant again argues that the ALJ improperly ignored two reports that would support
her limitations - the 2010 physical therapy report and the 2011 record from Dr. Khan which we addressed above. As we discussed, neither of these records presents a
compelling case for debilitating fibromyalgia and as we explained, the ALJ is not
required to address every page in the record. Here, the ALJ did acknowledge that there
were some treatment notes in the record which were contrary to the ALJ's ultimate
conclusion, but the ALJ explained why he chose to disregard this evidence. He also
noted that Dr. Khan was not primarily treating claimant's fibromyalgia.
22
In addition, Herrold criticizes the ALJ’s use of "boilerplate" language when
assessing her credibility. However, the inclusion of boilerplate language is not grounds
for reversal when the ALJ otherwise adequately explains his conclusion. Filus v. Astrue,
694 F.3d 863, 868 (7th Cir. 2012); Pepper v. Colvin, 712 F.3d 351, 367-68 (7th Cir.
2013); Shideler v. Astrue, 688 F.3d 308, 312 (7th Cir. 2012). Remand is only warranted
when the ALJ's determination lacks any explanation or is otherwise "patently wrong."
Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008).
Here, we agree with the Commissioner that the boilerplate language does not
require remand because the ALJ included additional discussion to support his credibility
finding. (R. 26-29.) The ALJ considered claimant's "all over" body pain and other
symptoms and its effects on her daily activities. (R. 27.) He also considered that the
longest she can persist with any activity due to her pain and fatigue is 20 minutes. (Id.)
He acknowledged that she would need to change positions to relieve discomfort 8-12
times a day, and is unable to concentrate due to discomfort. (Id.) However, he
determined that the assessment of claimant's rheumatologist was only supported
claimant's subjective complaints that her pain was constant and worsened with
movement. (R. 27.) The ALJ noted that Dr. Mihailescu’s reports were somewhat
ambiguous and she failed to detail claimant’s symptoms with any objective measures.
(Id.) Further, there was no hair loss or thinning associated with autoimmune disease
and Dr. Mihailescu considered her fibromyalgia to be stable. (R. 27.) Dr. Mihailescu
also wrote that she did not plan on doing anything more than a medication change and
prescribing aerobic exercises. (R. 28.)
The ALJ also considered that in May of 2011, claimant told Dr. Khan that her
23
fibromyalgia discomfort was overwhelming, but as of August 2011, Dr. Khan recorded
full joint range of motion, no tenderness, and preserved motor strength. (Id.) He noted
that when Dr. Khan made the original fibromyalgia diagnosis, he observed a "normal
gait and station, no misalignment, no asymmetry, crepitus, defects, tenderness, masses
or effusion; no instability, no non-use atrophy, no abnormal muscle tone, no decrease in
range of motion or decrease in strength." (R. 28-29.)
However, the ALJ also discredited claimant's testimony based on her failure to
continue with her physical therapy sessions. (R. 28.) The ALJ stated that she
unilaterally stopped physical therapy after only four sessions, and concluded that "[f]our
sessions of physical therapy two years ago in combination with prescribed medication
does not appear to correspond with greater limitation than the undersigned has
inferred." (Id.) In her medical records, however, there is evidence that she suffered
from uterine leiomyoma and ovarian cysts, and in her testimony, claimant noted that her
gynecologist told her not to undergo any physical therapy until after her hysterectomy.
(R. 61.) Based on these facts, claimant argues that the ALJ improperly discredited her
without considering her explanation for failing to undergo additional physical therapy.
In response, the Commissioner argues that the gynecologist's recommendation
"pertained to a discrete time period and does not explain her noncompliance for the
entire period of time."
We agree with claimant that the ALJ should have considered her explanation
when he discredited her for failing to continue with her physical therapy. SSR 96–7p
prohibits an ALJ from drawing negative inferences about a claimant's failure to seek
treatment without first considering explanations for the failure. See Myles v. Astrue, 582
24
F.3d 672, 677 (7th Cir. 2009) (remanding where the ALJ failed to consider claimant’s
explanations for lack of treatment). While it is true that her hysterectomy did not happen
until August of 2012, and therefore, it is unlikely that her gynecologist's recommendation
was the reason she stopped physical therapy in early 2011, we are not in a position to
read in to the ALJ's decision or to make conclusions for him. See Moss v. Astrue, 555
F.3d 556, 564 (7th Cir. 2009) (“while infrequent treatment or failure to follow a treatment
plan can support an adverse credibility finding, we have emphasized that the ALJ must
not draw any inferences about a claimant's condition from this failure unless the ALJ
has explored the claimant's explanations as to the lack of medical care.”). For this
reason, the case should be remanded to the ALJ for further proceedings. On remand,
the ALJ should note claimant's explanation regarding her failure to undergo additional
physical therapy and should determine whether the objective evidence in the record
supports this explanation.
We do not opine on whether claimant’s testimony was credible, only that the
ALJ’s finding lacked the appropriate consideration of why she discontinued her physical
therapy treatment, in light of her medical records and her gynecologist’s
recommendations. The ALJ’s failure to adequately articulate the reasoning for her
credibility finding in light of this evidence warrants remand.
3. The ALJ's RFC Assessment
Claimant next argues that the ALJ failed to consider all of her impairments in
combination in assessing her RFC. Specifically, claimant asserts that the ALJ failed to
consider her testimony that she needed to elevate her legs half the time and the
25
testimony about her reduced range of motion in her shoulders and her grasp strength.
She also points to the VE’s testimony that she would be unemployable because of the
amount of time she would need to rest or be off task.
In determining a claimant’s RFC, the ALJ must evaluate all limitations that arise
from medically determinable impairments - even those that are not severe - and may
not dismiss a line of evidence that is contrary to his ruling. SSR 96-8p. Because we
have already determined that a remand is appropriate here, we do not need to address
at length claimant’s argument regarding the ALJ’s RFC determination. On remand, the
ALJ should be careful to consider all of the evidence in making his or her RFC
assessment, including the testimony noted above.
4. Claimant’s Claim Regarding New and Material Evidence
Lastly, claimant argues that the results of her October 12, 2012 scan were new
and material evidence relevant to whether her asthma met a listing. The Appeals
Council failed to consider it, and claimant argues this failure warrants remand. The
scan showed reactive lymph nodes, bilateral ground glass lung opacities, and anterior
pericardial fluid. (R. 560-66.) It showed no evidence of pulmonary embolism or aortic
aneurysm and bilateral pneumonitis with reactive adenopathy. (R. 560-61.) At that
scan, she was diagnosed with bronchitis and discharged. (R. 561.)
The Appeals Council determined that this scan was not "new and material
evidence," and thus, this Court's jurisdiction is only to review that conclusion for legal
error. Stepp v. Colvin, 795 F.3d 711, 722 (7th Cir. 2015). Evidence is new if it was "not
in existence or available to the claimant at the time of the administrative proceeding."
26
Schmidt v. Barnhart, 395 F.3d 737, 742 (7th Cir. 2005) (quoting Perkins v. Chater, 107
F.3d 1290, 1296 (7th Cir. 1997)). Then, evidence is "material" if there is a "reasonable
probability" that the ALJ would have reached a different conclusion had the evidence
been considered. Schmidt v. Barnhart, 395 F.3d 737, 742 (7th Cir. 2005) (citing
Johnson v. Apfel, 191 F.3d 770, 776 (7th Cir. 1999)).
Because we have already determined that a remand is necessary to address
previously discussed problems with the ALJ's opinion, we do not need to address this
final issue in great detail. On remand, the ALJ should carefully consider the results of
the October 12, 2012 scan in his or her analysis.
III. Conclusion
For the reasons set forth above, Herrold’s motion for summary judgment is
granted in part and the Commissioner's 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.
Dated: April 27, 2016
_________________________
MICHAEL T. MASON
United States Magistrate Judge
27
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