Fugate v. Colvin
Filing
21
MEMORANDUM Opinion and Order Signed by the Honorable Mary M. Rowland on 3/16/2016. Mailed notice.(dm, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SCOTT MICHAEL FUGATE,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
No. 14 C 4240
Magistrate Judge Mary M. Rowland
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Scott Michael Fugate filed this action seeking reversal of the final decision of the Commissioner of Social Security denying his application for Disability
Insurance Benefits under Title II of the Social Security Act (Act). 42 U.S.C.
§§ 405(g), 423 et seq. The parties have consented to the jurisdiction of the United
States Magistrate Judge, pursuant to 28 U.S.C. § 636(c), and filed cross-motions for
summary judgment. For the reasons stated below, the case is remanded for further
proceedings consistent with this Opinion.
I. THE SEQUENTIAL EVALUATION PROCESS
To recover Disability Insurance Benefits (DIB), a claimant must establish that
he or she is disabled within the meaning of the Act. 1 York v. Massanari, 155 F.
The regulations governing the determination of disability for DIB are found at 20
C.F.R. § 404.1501 et seq. The standard for determining DIB is virtually identical to that
used for Supplemental Security Income (SSI). Craft v. Astrue, 539 F.3d 668, 674 n.6 (7th
Cir. 2008) (“Although the Code of Federal Regulations contains separate sections for DIB
1
Fugate v. Colvin, No. 14 C 4240
Page 1 of 30
Supp. 2d 973, 977 (N.D. Ill. 2001). A person is disabled if he or she is unable to perform “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.” 20 C.F.R. § 404.1505(a). In determining whether a claimant suffers from a
disability, the Commissioner conducts a standard five-step inquiry:
1. Is the claimant presently unemployed?
2. Does the claimant have a severe medically determinable physical or
mental impairment that interferes with basic work-related activities and is expected to last at least 12 months?
3. Does the impairment meet or equal one of a list of specific impairments enumerated in the regulations?
4. Is the claimant unable to perform his or her former occupation?
5. Is the claimant unable to perform any other work?
20 C.F.R. §§ 404.1509, 404.1520; see Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir.
2000). “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.” Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985). “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.
and SSI, the processes of evaluation are identical in all respects relevant to this case.”). Accordingly, this Court cites to both DIB and SSI cases.
Fugate v. Colvin, No. 14 C 4240
Page 2 of 30
II. PROCEDURAL HISTORY
Plaintiff applied for DIB on September 6, 2011, alleging that he became disabled
on May 19, 2010, due to chronic back pain and depression. (R. at 17, 108, 114). The
application was denied initially and on reconsideration, after which Plaintiff filed a
timely request for a hearing. (Id. at 17, 71, 76). On February 26, 2013, Plaintiff,
represented by counsel, testified at a hearing before an Administrative Law Judge
(ALJ). (Id. at 17, 35–59). The ALJ also heard testimony from Grace Gianforte, a vocational expert (VE). (Id. at 17, 35–36, 59–66, 97–98).
The ALJ denied Plaintiff’s request for benefits on May 10, 2013. (R. at 17–
30). Applying the five-step sequential evaluation process, the ALJ found, at step
one, that Plaintiff had not engaged in substantial gainful activity since his alleged
onset date of May 19, 2010. (Id. at 19). At step two, the ALJ found that Plaintiff’s
status post hemi-laminectomies of December 2005 and February 2010, his status
post cerebrospinal leak repair of July 2010, his moderate obesity, and his major depression and anxiety are severe impairments. (Id. at 20). At step three, the ALJ determined that Plaintiff does not have an impairment or combination of impairments
that meet or medically equal the severity of any of the listings enumerated in the
regulations. (Id. at 20–21).
The ALJ then assessed Plaintiff’s Residual Functional Capacity (RFC) 2 and
determined that Plaintiff has the RFC to perform light work as defined in 20 C.F.R.
Before proceeding from step three to step four, the ALJ assesses a claimant’s residual
functional capacity. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). “The RFC is the maximum
2
Fugate v. Colvin, No. 14 C 4240
Page 3 of 30
§ 404.1567(b), except that he can only occasionally climb ramps and stairs or stoop,
crouch, kneel, or crawl; can never climb ropes, ladders, or scaffolds; cannot do work
involving public contact or frequent communication with others; and can do only
unskilled, routine work that stays the same day-to-day. (R. at 22). Based on Plaintiff’s RFC and the VE’s testimony, the ALJ determined at step four that Plaintiff
cannot perform any past relevant work. (Id. at 28). At step five, based on the VE’s
testimony and Plaintiff’s RFC, age, education, and work experience, the ALJ determined that there are jobs that exist in significant numbers in the national economy
that Plaintiff can perform, including the following representative occupations: clerical/checker; inspector/packer, and addresser. (Id. at 29). Accordingly, the ALJ concluded that Plaintiff was not under a disability, as defined by the Act, from the alleged onset date through the date of the ALJ’s decision. (Id. at 30).
The Appeals Council denied Plaintiff’s request for review on April 28, 2014. (R.
at 1–5). Plaintiff now seeks judicial review of the ALJ’s decision, which stands as
the final decision of the Commissioner. Villano v. Astrue, 556 F.3d 558, 561–62 (7th
Cir. 2009).
III. STANDARD OF REVIEW
Judicial review of the Commissioner’s final decision is authorized by § 405(g) of
the SSA. In reviewing this decision, the Court may not engage in its own analysis of
whether the plaintiff is severely impaired as defined by the Social Security Regula-
that a claimant can still do despite his mental and physical limitations.” Craft, 539 F.3d at
675–76.
Fugate v. Colvin, No. 14 C 4240
Page 4 of 30
tions. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Nor may it “reweigh
evidence, resolve conflicts in the record, decide questions of credibility, or, in general, substitute [its] own judgment for that of the Commissioner.” Id. The Court’s
task is “limited to determining whether the ALJ’s factual findings are supported by
substantial evidence.” Id. (citing § 405(g)). Evidence is considered substantial “if a
reasonable person would accept it as adequate to support a conclusion.” Indoranto v.
Barnhart, 374 F.3d 470, 473 (7th Cir. 2004); see Moore v. Colvin, 743 F.3d 1118,
1120–21 (7th Cir. 2014) (“We will uphold the ALJ’s decision if it is supported by
substantial evidence, that is, such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”) (citation omitted). “Substantial evidence
must be more than a scintilla but may be less than a preponderance.” Skinner v.
Astrue, 478 F.3d 836, 841 (7th Cir. 2007). “In addition to relying on substantial evidence, the ALJ must also 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 this Court accords great deference to the ALJ’s determination, it “must
do more than merely rubber stamp the ALJ’s decision.” Scott v. Barnhart, 297 F.3d
589, 593 (7th Cir. 2002) (citation omitted). “This deferential standard of review is
weighted in favor of upholding the ALJ's decision, but it does not mean that we
scour the record for supportive evidence or rack our brains for reasons to uphold the
ALJ's decision. Rather, the ALJ must identify the relevant evidence and build a ‘logical bridge’ between that evidence and the ultimate determination.” Moon v. Colvin,
Fugate v. Colvin, No. 14 C 4240
Page 5 of 30
763 F.3d 718, 721 (7th Cir. 2014). Where the Commissioner’s decision “lacks evidentiary support or is so poorly articulated as to prevent meaningful review, the case
must be remanded.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
IV. RELEVANT MEDICAL EVIDENCE
Plaintiff, a high school graduate who was thirty-eight years old at the time of his
hearing, has a history of lower back pain and depression. In 2005, he reported pain
in his low back, left hip, and left leg down to his foot, together with numbness and
tingling radiating to the back of his left leg. (R. at 351–52). An MRI of June 28,
2005, revealed lumbar spinal stenosis (a narrowed spinal canal)3 and minimal disc
bulging. (Id.). Based on clinical exams and Plaintiff’s MRI, Leonard I. Kranzler,
M.D., a neurosurgeon, attributed Plaintiff’s pain and neurological symptoms to the
spinal stenosis, not to the disc bulging. (Id.). After conservative treatment with
steroids and bed rest was unsuccessful, Dr. Kranzler performed a lumbar laminectomy. 4 (Id.). Following the surgery, Plaintiff experienced relief for a time he later
estimated as four to six months. (Id. at 354). He “returned to a vigorous lifestyle,
Spinal stenosis occurs when the spinal cord in the neck (cervical spine) or the spinal
nerve roots in the lower back (lumbar spine) are compressed. Symptoms of lumbar stenosis
often include leg pain (sciatica) and leg tingling, weakness, or numbness.
(last visited Feb. 18, 2016).
3
A lumbar laminectomy involves removing a small portion of the bone in order to allow
more room for the nerve root, with the goal of reducing pain, leg weakness, and neurological
symptoms associated with spinal stenosis. (last visited Feb. 18, 2016). Plaintiff’s surgery also involved removal of some “extraordinarily thickened” connective tissue (R. at 352);
such tissue can contribute to spinal stenosis.
http://www.spine-health.com/glossary/ligamentum-flavum (last visited February 18, 2016).
4
Fugate v. Colvin, No. 14 C 4240
Page 6 of 30
including weightlifting,” but gradually developed pain and difficulty, even in walking. (Id. at 343).
There is a gap in the medical records after 2005. The next available record indicates that Plaintiff was referred to a pain clinic in 2010. (R. at 354). In January and
February 2010, he reported sharp pain radiating down his left leg to the ankle, at a
level of 9/10, exacerbated by walking or sitting straight and alleviated by moving
about. (Id. at 343, 354). A January 14 MRI revealed several anomalies including
mild disc bulges, degeneration, and mild bilateral neural foraminal narrowing (a
narrowing of the nerve passageways on both sides of the spine). 5 (Id. at 347). After
conservative treatments and steroid injections failed to alleviate his pain, Plaintiff
agreed to a repeat surgery. (Id. at 344).
On February 26, 2010, Plaintiff had a repeat hemi-laminectomy in which Dr.
Kranzler removed additional bony protrusions, connective tissue, and scar tissue
from the prior surgery. (R. at 339, 344). During the surgery, there was also an inadvertent incision into his dura mater (the outermost layer of the thick membrane
around the spine) and a leak of cerebrospinal fluid. (Id. at 344). After surgery,
Plaintiff recovered in the hospital for several days and was discharged on March 3.
(Id. at 326–32, 339).
Neural foraminal narrowing means nerve passageways in the spine have less space
than they used to, which may cause the compression or pinching of nerves.
(last visited Feb. 18, 2016).
5
Fugate v. Colvin, No. 14 C 4240
Page 7 of 30
Around 4:00 am on March 5, Plaintiff developed a headache that grew progressively more severe. (R. at 304). That night he began vomiting, and on March 6, he
presented at the emergency room with a severe headache, back pain, vomiting, and
a fever. (Id. at 279–89, 304). He was admitted and treated with pain medication,
which somewhat relieved his headache. He also experienced sharp pains in his
neck, which were somewhat relieved with ice packs. (Id. at 298–300, 309). Extreme
light sensitivity prompted hospital staff to draw his shades and turn off his lights.
(Id.). When moved from the emergency department to an inpatient unit, he covered
his face and head with a blanket to block the light (Id. at 299). The headache was
initially diagnosed as musculoskeletal/paraspinal in nature, possibly caused by myelomeningocele. 6 (Id. at 315, 318). By March 9, his headache had improved, and he
was discharged. (Id. at 320).
During the second hemi-laminectomy, doctors noted a cerebrospinal fluid leak,
but they were unable to repair it at that time. (R. at 258). Plaintiff continued to experience post-operative fluid build-up at the site of the surgery, and by July, he had
developed a cyst producing a visible bulge on his back. (Id. at 260). For four months
following the second surgery, Plaintiff experienced headaches as a result of the loss
of cerebrospinal fluid. (Id. at 258, 260). On July 8, 2010 Dr. Kranzler performed a
third surgery to repair the leak; that surgery involved reopening the wound from
his prior surgery and suturing layers of his spinal membrane together with layers of
The term refers to protrusion of the spinal cord and its membranes through a defect in
the vertebral column. (last visited Feb. 11, 2016).
6
Fugate v. Colvin, No. 14 C 4240
Page 8 of 30
membrane that had developed around the cyst. (Id. at 219–20, 258). A drain was installed in his lumbar region for several days. Plaintiff remained in the hospital for a
week and was discharged on July 17. (Id. at 258).
Records reflect that Plaintiff received ongoing treatment with Advocate Illinois
Masonic Family Practice in Ravenswood (Ravenswood Clinic). In February, Dr. R.
Niehaus examined him and gave him pre-operative clearance for upcoming surgery;
in June, Gina Schueneman, D.O., did the same. (R. at 364, 396). Plaintiff followedup with Dr. Niehaus on March 12, shortly after his first surgery (id. at 366), and
again on September 22, 2011 (id. at 501).
At his September 2010 appointment, Plaintiff admitted to having difficulty controlling his anger, describing an incident where he had yelled at a neighbor outside;
only the intervention of his wife kept him from confronting the neighbor with a
knife. (R. at 501). Two days later, he began visiting a psychiatrist at the Ravenswood Clinic. He recounted irritability, pervasive anger, an erratic sleep schedule,
and some depression. He also indicated that he had lost his job three months prior,
in part due to downsizing and in part due to his back problems. (Id. at 527).
In October 2010, Plaintiff again saw Dr. Niehaus and reported decreased but
continuing lower back pain radiating to his left foot, describing the pain level as
6/10. (R. at 501, 535). On an October 12, 2010, intake form for physical therapy,
Plaintiff reported “pain and stiffness” in his lower back. His listed goals for physical
therapy as “get active again” and “light lifting.” (Id. at 467). That day he indicated
that he was experiencing pain in his lower back and left hip, leg, and foot, at a level
Fugate v. Colvin, No. 14 C 4240
Page 9 of 30
of 5/10, sometimes rising to 8/10. (Id. at 468, 489). He reported that his pain was
made worse by stairs, sitting for a long time, and walking, and that the pain improved when he changed positions or lay down. (Id. at 467). Asked to circle a number between one and five to indicate how much his emotional status had changed
since the onset of his condition, he circled five. (Id.).
The record documents six visits to the physical therapist during October 2010.
On October 27, Plaintiff reported “[s]ignificant improvement.” (R. at 487). Plaintiff
had improved 70% since beginning physical therapy, could walk for thirty minutes,
could go up and down a flight of stairs, and could perform light weight lifting—all
with no increase in pain. (Id.). Plaintiff stated that he was experiencing no pain that
day, just stiffness, and that he had pain referral to his buttocks approximately twice
a week. (Id.). The therapist indicated “all goals met,” and released him to “selfmanagement of pain” and a home exercise program. (Id.).
Six month later, on April 25, 2011, Plaintiff returned to Dr. Niehaus to follow up
on his low back pain and his pain medications. (R. at 356). He reported a pain level
of 6/10 with pain radiating to his left leg and stated that he had been doing “light
exercises” at home as taught by his physical therapist but was still taking on average one Vicodin and one Valium every day. He expressed an interest in trying pool
therapy at the YMCA and asked the doctor to fill out a form to clear him for that
activity. (Id.).
In September 2011, Plaintiff filed his DIB application. On September 28, he returned to the Ravenswood Clinic, reporting a pain level of 6/10. (R. at 374, 500). He
Fugate v. Colvin, No. 14 C 4240
Page 10 of 30
also reported constant lower back and buttocks pain running down his left leg to the
foot. (Id. at 374). Vicodin and stretching provided some relief, but the surgery had
not helped much. Plaintiff also reported some neck and left foot pain, and indicated
that his balance felt “off” and that he was sleepy. Dr. Schueneman noted that Plaintiff was in therapy for anger, and on the treatment note form circled physical symptoms including headache, tingling, and back pain. She diagnosed chronic low back
pain and adjustment disorder. (Id.).
Thereafter, Plaintiff received monthly osteopathic manipulative treatment from
David Smith, D.O., and Andrea Clem, D.O., at the Ravenswood Clinic. 7 On October
4, 2011, Plaintiff recounted low back and neck pain, with a chronic tingling sensation in his left leg. (R. at 373). Observing tightness in various areas of his musculoskeletal system and tenderness in his piriformis, Dr. Clem diagnosed somatic dysfunctions in the cranial-cervical, thoracic, and sacral areas of the spine. (Id. at 373,
500). On November 4, Dr. Smith observed that Plaintiff’s leg was improving, but
Plaintiff still had anger issues and was no longer seeing a therapist since the person
he was seeing left the practice. (Id. at 378). Dr. Smith diagnosed chronic low back
pain and adjustment disorder with anger and instability. (Id.). On November 8,
According to the Glossary of Osteopathic Terminology published by the American Association of Colleges of Osteopathic Medicine, osteopathic manipulative treatment is the
“therapeutic application of manually guided forces . . . to improve physiological function and
homeostasis that has been altered by somatic dysfunction.” 28 American Association of Colleges of Osteopathic Medicine, Glossary of Osteopathic Terminology (Nov. 2011), available
at https://www.aacom.org/docs/default-source/insideome/got2011ed.pdf?sfvrsn=2 (last visited Feb. 10, 2016) (the “Glossary”). Manipulation is considered a compliment to, not a substitute for, conventional therapies. Emil P. Leshoe, An Overview of Osteopathic Medicine, 8
Archives of Fam. Med. 477, 477 (1999), available at http://triggered.edina.clockss.org/ (last
visited Feb. 17, 2016).
7
Fugate v. Colvin, No. 14 C 4240
Page 11 of 30
Plaintiff reported pain at a level of eight out of ten and stated that he could not sit
or stand for very long. (Id. at 500, 526). He also reported that, after initial soreness,
his last treatment had helped somewhat.
In connection with his application for DIB, Plaintiff was examined by Fauzia A.
Rana, M.D., on November 14, 2011. (R. at 402–06). Plaintiff complained of constant
pain in his left lower back, radiating to the back of his left thigh with a tingling sensation, with pain at a level of 9/10 every day, plus aching pain in his right shoulder
and depression because he cannot work. (Id. at 403). Plaintiff demonstrated moderate difficulty squatting and arising, instability attempting to hop on one leg, and a
slow gait without a limp or use of an assistive device. (Id. at 403–04). A physical exam was otherwise normal, including all ranges of motion, except that Plaintiff complained of pain in his back on various movements. (Id. at 404–05). Dr. Rana opined
that Plaintiff would have “some difficulty in prolonged sitting, standing, walking,
lifting and carrying due to obesity and chronic low back pain.” (Id. at 406).
Consulting psychiatrist Ana A. Gil, M.D., also examined Plaintiff on November
14, 2011. (R. at 411–14). She noted that Plaintiff’s wife drove him to the appointment, and that he shifted position throughout the exam and stood once because of
back pain. He expressed that he was in terrible pain every single day and experienced feelings of hopelessness, helplessness, and decreased energy, stating “I rarely
even go out. . . . I can’t sit for very long.” (Id. at 411). He indicated that his wife does
most of the cleaning, laundry, and grocery shopping. After a cognitive and psychological exam, Dr. Gil opined that Plaintiff’s history and symptoms are indicative of
Fugate v. Colvin, No. 14 C 4240
Page 12 of 30
recurrent major depression without psychotic features, moderate in severity. (Id. at
414).
Also on November 14, 2012, Dr. Schueneman filled out a “Multiple Impairments
Questionnaire” in which she reported that she had been treating Plaintiff for chronic low back pain following three surgeries plus a history of spinal stenosis and herniated discs. She described his symptoms as “constant low back pain; . . . left hip
pain; pain radiates down left leg; muscle weakness; fatigue; unable to find position
of comfort.” (R. at 548–55). She also noted “some mid-thoracic pain.” (Id. at 549).
She concluded that he has “all bad days” with no good days; that sitting, standing,
walking, and lifting all exacerbate his pain; that the range of pain he experiences is
ten out of ten; that the range of his fatigue is similarly ten out of ten; and that his
symptoms are not completely relieved by medication. (Id. at 550, 554). She opined
that Plaintiff can sit for no more than one hour in an eight-hour workday and can
stand or walk for no more than one hour in an eight-hour workday, and that he
needs to get up and move around every twenty minutes. (Id. at 550). She concluded
that Plaintiff would need to take unscheduled breaks to rest every twenty minutes
throughout the day, lasting on average twenty minutes each. (Id. at 553). She further opined that he can frequently lift or carry up to five pounds, occasionally lift or
carry five to ten pounds, and never lift or carry any weight in the ten-to-twenty
pound range or higher. (Id. at 551). Due to chronic shoulder pain, Plaintiff is unable
to do repetitive reaching or pulling. (Id.).
Fugate v. Colvin, No. 14 C 4240
Page 13 of 30
Dr. Schueneman further opined that Plaintiff has moderate limitations in grasping, turning or twisting objects and marked limitations in reaching (including overhead) with either hand, but minimal limitations in using his fingers/hands for fine
manipulations. (R. at 551–52). She made note of Plaintiff’s treatment history, including his medications, surgeries, and osteopathic manipulative treatments. (Id. at
552). She concluded that his symptoms would likely increase if he were in a competitive work environment, that he could not keep his neck in a constant position, and
that his pain would frequently interfere with his attention and concentration. (Id. at
552–53). Dr. Schueneman opined that Plaintiff was physically unable to tolerate
even low stress jobs. (Id. at 553).
Dr. Schueneman found that Plaintiff’s symptoms and limitations dated back to
January 2005 and based her opinion on clinical findings, including “positive
straight leg test,” “decreased muscle strength left lower extremity,” “difficult to
toe/heel walk and squat,” “decreased motion of lumbar spine,” and “tenderness
around surgical scar.” (R. at 548, 554). She further cited Plaintiff’s June 2005 and
January 2010 MRIs as evidence of his disc bulge, spinal stenosis, facet degeneration, and diffuse disc osteophyte complex (bone spurs). (Id. at 549).
On December 8, 2011, Plaintiff reported pain at 9/10, which radiated down his
legs. (R. at 499, 525). He was unhappy with the outcome of his surgery; his pain was
persistent and chronic. (Id.).
Marva Dawkins, Ph.D., a nonexamining DDS consultant, completed a Mental
RFC Assessment on December 14, 2011. She found that Plaintiff is moderately limFugate v. Colvin, No. 14 C 4240
Page 14 of 30
ited in several work-related capabilities. (R. at 429–30). She opined that Plaintiff
retains the mental capacity to understand, remember, and carry out simple, oneand two-step instructions within the limits of his physical condition. (Id. at 431).
On December 19, 2011, Plaintiff reported left shoulder pain at 9/10, along with
back and neck pain. (R. at 499). He requested cholesterol-lowering medication “because he doesn’t think he can exercise” and had already changed his diet. (Id. at
523). At his January 12, 2012 manipulation treatment, Dr. Smith and Dr.
Schueneman noted that Plaintiff had gotten some relief from the last session, but
was now complaining of pain in his upper and lower back, left hip tightness, and
pain at a level of 9/10 radiating down his left buttock; non-steroidal antiinflammatory drugs provided temporary relief. (Id. at 522). In February, Plaintiff
reported pain at 7/10, with increased neck pain. (Id. at 499, 521). Dr. Schueneman
diagnosed myalgia, neck pain, joint pain, back pain, and a series of somatic dysfunctions related to her clinical findings. (Id. at 521).
Julio Pardo, M.D., a nonexamining DDS consultant, prepared a Physical RFC
assessment on December 19, 2011 (R. at 433–40), in which he opined that Plaintiff
can occasionally lift twenty pounds and frequently lift ten pounds, and that he can
stand or sit for six hours each in an eight-hour workday (id. at 434). Dr. Pardo concluded that Plaintiff can never climb ladders, ropes, or scaffolds, but he can occasionally climb ramps or stairs and occasionally kneel, crouch, and crawl. (Id. at
435). Dr. Pardo disagreed with Dr. Rana’s conclusion that Plaintiff would have difficulty in prolonged sitting, standing, walking, lifting, and carrying because “the evi-
Fugate v. Colvin, No. 14 C 4240
Page 15 of 30
dence provided by the examining source reveals only a snapshot of [Plaintiff’s] functioning.” (Id. at 439).
Glen Pittman, M.D., and Young-Ja Kim, M.D., reviewed the record and, in
March 2012, affirmed the prior physical and mental RFC assessments. (R. at 455–
57). One of the reviewing physicians commented that Plaintiff “had some other
complaints related to somatic dysfunction, which was the only description of mental
impairment.” (Id. at 457).
At his March 6, 2012 manipulation treatment, Plaintiff complained of stiffness
from “playing basketball this weekend with his son, moderate intensity.” (R. at
520). Dr. Schueneman assessed him with low back pain alleviated by manipulation
treatments and oral pain control, and again made clinical findings relevant to his
various spinal segments plus bilateral hamstring tightening and restrictive extension in the left shoulder. (Id.). On April 11, Plaintiff complained of headache pain at
8–9/10, accompanied by mild nausea and photosensitivity, which resolved temporarily with rest. His low back pain had improved mildly since his last visit but was reportedly at a level of eight that day. (Id. at 519).
On April 13, 2012, Plaintiff sustained a head injury in an altercation. In his
hearing testimony, he explained that he had exchanged words with someone blocking an alley, and that several people had subsequently assaulted him. (R. at 58–59).
He suffered a concussion but no apparent loss of consciousness. (Id. at 546–47). A
speech-language specialist, who evaluated him for brain injury the next day, diagnosed “mild traumatic head injury.” (Id. at 464).
Fugate v. Colvin, No. 14 C 4240
Page 16 of 30
In a visit to his primary doctor on May 7, 2012, Plaintiff reported pain of 10/10 in
his left upper back and ribs, along with left flank pain, which worsens with movement. (R. at 498, 517–18). Dr. Schueneman prescribed pain medications and rest
with no contact activities. (Id. at 517). Dr. Smith’s June 2012 physical exam found
osteoarthritic restrictions in the cervical spine and restrictions in the thoracic, lumbar, sacral, and pelvic spine, all of which are listed as specific types of somatic dysfunctions. (Id. at 514–16).
In a letter dated June 14, 2012, Dr. Schueneman described Plaintiff as “still
quite physically limited.” (R. at 565). She opined that Plaintiff cannot lift more than
ten pounds, cannot walk more than ten minutes before sitting, and cannot sit more
than five minutes without adjusting his body position. (Id.). She concluded that
Plaintiff’s prognosis is poor, opining that Plaintiff’s impairments would endure life
long and preclude him from competitive work. (Id.).
On October 18, 2012, Dr. Jewison gave Plaintiff an injection in his left shoulder
for pain symptoms that had worsened over the prior two weeks. (R. at 502, 506–07).
Plaintiff reported that his shoulder pain is worst in the morning and awakens him
from sleep. Lifting “light weights” overhead causes him pain. (Id. at 506). A week
later, on October 25, he reported that the pain injection in his shoulder had been
effective, but he still had hip and mid-thoracic pain; Dr. Smith diagnosed chronic
low back pain and various segmental dysfunctions. (Id. at 502–04).
Finally, on February 17, 2013, Dr. Smith completed a Multiple Impairments
Questionnaire that appears remarkably similar to that completed by his colleague
Fugate v. Colvin, No. 14 C 4240
Page 17 of 30
Dr. Schueneman three months prior. (Compare R. at 548–55, with id. at 557–64). In
fact, in the thirty-eight instances in which the form requests a “check-the-box” or
“circle-the-number” response, all thirty-eight of Dr. Smith’s responses align with Dr.
Schueneman’s. (Id.). These included, for example, the assessments that the Plaintiff’s pain and fatigue are both a constant ten out of ten, and that Plaintiff can sit
for no more than one hour in an eight-hour work day. (Id.). The responses to all
short-answer questions are likewise identical, with only the longer responses varying their wording slightly.
At his hearing on February 6, 2013, Plaintiff reported that his 2005 surgery had
afforded him temporary relief, but that everything had been “downhill” since the
second surgery in 2010. (R. at 41–42). He testified that he had not been able to drive
for about five years because of low back pain; in written testimony, he described
discomfort with turning the wheel or looking over his shoulder (Id. at 38, 154). He
spends 10–12 hours each day lying down and otherwise alternates between sitting,
standing, and walking, requiring a change of position every 15 or 20 minutes. (Id. at
40–42). He can walk just one block and back, cannot lift more than five pounds at a
time per orders from his doctors, and stopped lifting light weights in 2005. (Id. at
42, 45–46). His written testimony indicates that, for exercise, he walks to the end of
the block and back and performs prescribed physical therapy exercises. (Id. at 130).
He stated that he can wash a few dishes, and can go the grocery store if his wife
gives him a short list. (Id. at 42–43). His medications cause drowsiness and blurred
vision. (Id. at 43).
Fugate v. Colvin, No. 14 C 4240
Page 18 of 30
Plaintiff’s wife drives them to visit his parents in Lake Zurich, which requires a
40-minute drive, approximately once every two months, and in 2012 he took one
longer trip to Fort Wayne, Indiana to see an aunt. (R. at 46). That trip, normally a
two-and-a-half-hour drive, took longer because his father, who was driving, took
frequent stops so Plaintiff could stretch his legs. (Id. at 52–53).
V. DISCUSSION
Plaintiff raises two arguments in support of his request for reversal: (1) the ALJ
improperly weighted the opinions of Drs. Schueneman and Smith, Plaintiff’s treating physicians; and (2) the ALJ’s credibility determination was patently wrong.
A. The ALJ’s Evaluation of the Opinion Evidence Is Not Supported by Substantial Evidence.
Plaintiff contends that the ALJ failed to give good reasons for giving only “minimal weight” to the opinions of Drs. Schueneman and Smith, his treating physicians.
(Dkt 11 at 8–12). Plaintiff asserts that even if the ALJ declined to extend controlling
weight to those opinions, the ALJ was required to assess their weight in accordance
with the regulatory checklist of factors. (Id. at 8, 12–13). Drs. Schueneman and
Smith found, inter alia, that Plaintiff can lift less than five pounds frequently and
five to ten pounds occasionally, can sit for no more than one hour in an eight-hour
period, can stand or walk for no more than one hour in an eight-hour period, needs
to get up and move around every twenty minutes, and needs to take unscheduled
breaks to rest every twenty minutes throughout the day, each lasting on average
twenty minutes. (R. at 550–55, 557–64).
Fugate v. Colvin, No. 14 C 4240
Page 19 of 30
In Social Security disability claims, the opinion of a treating physician is afforded controlling weight if it is both “well-supported” by clinical and diagnostic evidence and “not inconsistent with the other substantial evidence” in the case record.
20 C.F.R. § 404.1527(c)(2); see Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011). Because of a treating doctor’s “greater familiarity with the claimant’s condition and
circumstances,” Gudgel v. Barnhard, 345 F.3d 467, 470 (7th Cir. 2003), an ALJ
must “offer ‘good reasons’ for discounting a treating physician’s opinion,” Campbell
v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010) (citations omitted); see also Stage v. Colvin, — F.3d —, 2016 WL 492333 at *5 (7th Cir. Feb. 9, 2016). Those reasons must
be “supported by substantial evidence in the record; a contrary opinion of a nonexamining source does not, by itself, suffice.” Campbell, 627 F.3d at 306. Where the
opinions of treating and nontreating physicians contradict one another, the ALJ
must decide which doctor to believe, considering such factors as “the length, nature,
extent of the treatment relationship; frequency of examination; [each] physician’s
specialty, the type of tests performed, and the consistency and supportability of
[each] opinion.” Scott, 647 F.3d at 740; Books v. Chater, 91 F.3d 972 (1996). The ALJ
must then provide a “sound explanation” for that decision. Punzio v. Astrue, 630
F.3d 704, 710 (7th Cir. 2011).
In his decision, the ALJ gave “minimal weight” to Drs. Schueneman’s and
Smith’s opinions. (R. at 26–27). Specifically, the ALJ concluded that Drs. Schueneman’s and Smith’s opinions relied on Plaintiff’s subjective reports and were not
supported by the record, inconsistent with Plaintiff’s work history, inconsistent with
Fugate v. Colvin, No. 14 C 4240
Page 20 of 30
Plaintiff’s physical activities and abilities, and contradicted by the state agency consultants’ opinions. (Id. at 26–28).
Under the circumstances, the ALJ’s decision to give Drs. Schueneman’s and
Smith’s opinions “minimal weight” is legally insufficient and not supported by substantial evidence. First, the ALJ erroneously rejected Drs. Schueneman’s and
Smith’s opinions because they were based on Plaintiff's subjective reports. (R. at
26–27). If an 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) (emphasis
added); see also Rice v. Barnhart, 384 F.3d 363, 371 (7th Cir. 2004) (“[M]edical opinions upon which an ALJ should rely need to be based on objective observations and
not amount merely to a recitation of a claimant’s subjective complaints.”). But here,
the treating physicians’ opinions were based not only on Plaintiff’s complaints but
also on their own examinations and clinical findings. (R. at 520, 548, 554, 557).
Moreover, almost all diagnoses require some consideration of the claimant’s subjective symptoms, and here, Plaintiff’s subjective statements were necessarily factored
into the treating physicians analyses. See McClinton v. Astrue, No. 09 C 4814, 2012
WL 401030, at *11 (N.D. Ill. Feb. 6, 2012 (“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.”). And there is
nothing in the record to suggest that either Dr. Schueneman or Dr. Smith disbelieved Plaintiff’s descriptions of his symptoms, or that they relied more heavily on
Plaintiff’s descriptions than the test results and their own clinical observations in
Fugate v. Colvin, No. 14 C 4240
Page 21 of 30
concluding that Plaintiff was seriously impaired. See Davis v. Astrue, No. 11 C 0056,
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.”); see also Ryan v. Comm’r, 528 F.3d 1194, 1199–200 (9th Cir. 2008)
(“[A]n ALJ does not provide clear and convincing reasons for rejecting an examining
physician’s opinion by questioning the credibility of the patient’s complaints where
the doctor does not discredit those complaints and supports his ultimate opinion
with his own observations.”).
Second, the ALJ misapprehends the medical record. For example, he concluded
that Dr. Schueneman had “limited longitudinal familiarity” with Plaintiff’s medical
history because she diagnosed low back pain “status post three back surgeries,”
when “the medical source was not aware specifically that the claimant only had undergone two back surgeries.” (R. at 26). But Plaintiff did, indeed, have three back
surgeries: a hemi-laminectomy in 2005, a hemi-laminectomy revision in February
2010, and a cerebrospinal leak repair in July 2010, after which Plaintiff was hospitalized for a week with a lumbar drain. (Id. at 351–52, 339, 219–20).
The ALJ al-
so faults Dr. Schueneman for relying on 2005 and 2010 MRIs that predated his back
surgeries. The ALJ contends that these MRI’s only “showed some degeneration and
disk bulging” (id. at 26), which is not the case. Both scans also revealed narrowing
in segments of the spinal canals. (Id. at 351–52, 347). Dr. Kranzler, Plaintiff’s neu-
Fugate v. Colvin, No. 14 C 4240
Page 22 of 30
rosurgeon, opined that Plaintiff’s symptoms were due the narrowing, and not to the
mild degeneration and disk bulging. (Id. at 351–52).
The ALJ also misapprehends a key medical term. In describing a April 25, 2011
treatment note, the ALJ said that Plaintiff “also alluded to somatic dysfunction,
which signifies that a precise medical etiology did not describe the claimant’s complaints, merely his subjective perception.” It is unclear where the ALJ found this
definition of “somatic dysfunction.” For osteopathic medicine doctors, including Drs.
Schueneman and Smith, “somatic dysfunction is defined as the impaired or altered
function of related components of the somatic (bodywork) system including: the
skeletal, arthrodial, and myofascial structures, and their related vascular, lymphatic, and neural elements.” (last
visited Feb. 26, 2015). This misunderstanding on the part of the ALJ caused him to
overlook substantial portions of the treating physicians’ treatment records.
The ALJ erroneously asserts that because Plaintiff’s primary doctor did not refer
him back to his treating surgeon, Plaintiff symptoms must not have been severe. (R.
at 26). To the contrary, the record indicates that surgery afforded Plaintiff only
temporary relief. The spinal stenosis that was surgically treated in 2005 reoccurred
in early 2010. (Id. at 343–44, 354). Following the July 2010 surgery to repair a spinal fluid leak caused during the February 2010 surgery, Plaintiff reported only a
brief period of improvement before describing a return of his pre-surgery symptoms
by April 2011. (Id. at 356). He also expressed a desire to avoid any additional sur-
Fugate v. Colvin, No. 14 C 4240
Page 23 of 30
geries. (Id. at 42). In any event, the ALJ does not identify any medical evidence
suggesting that another surgery would be helpful.
Third, the treating physicians’ opinions are supported by the record. A September 2011 treatment note indicates dysfunctions in Plaintiff’s “central cervical, thoracic, sacrum” and remarks that the Plaintiff will return for osteopathic manipulative treatment. (R. at 373–74). In October 2011, Dr. Clem found tightness in various
areas of Plaintiff’s musculoskeletal system and tenderness in his piriformis, and diagnosed somatic dysfunctions in the cranial-cervical, thoracic, and sacral areas of
the spine. (Id. at 373, 500). In a November 2011 examination performed by Dr. Rana, Plaintiff had moderate difficulty squatting and arising, instability attempting to
hop on one leg, and a slow gait without a limp or use of an assistive device. (Id. at
403–04). On the same day, Plaintiff shifted positions throughout Dr. Gil’s examination and had to stand because of his back pain. (Id. at 411). In February 2012, after
a clinical examination, Dr. Schueneman diagnosed myalgia, neck pain, joint pain,
back pain, and a series of somatic dysfunctions. (Id. at 521). In March, Dr.
Schueneman found bilateral hamstring tightening and restrictive extension of
Plaintiff’s left shoulder. (Id. at 520). During a June 2012 physical examination, Dr.
Smith found osteoarthritic restrictions in the cervical spine and restrictions in the
thoracic, lumbar, sacral, and pelvic spine. (Id. at 514–16).
Fourth, the ALJ’s decision to give the treating physicians’ opinions minimal
weight because they were “inconsistent with work after onset” (R. at 27) is contrary
to law and not supported by substantial evidence. The Seventh Circuit has repeat-
Fugate v. Colvin, No. 14 C 4240
Page 24 of 30
edly noted that “the fact that a person holds down a job doesn’t prove that he isn’t
disabled.” Henderson v. Barnhart, 349 F.3d 434, 435 (7th Cir. 2003). In some circumstances, “even persons who are disabled . . . cope with their impairments and
keep working long after they might have been entitled to benefits.” Czarnecki v.
Colvin, 595 F. App’x 635, 644 (7th Cir. 2015) (quoting Shauger v. Astrue, 675 F.3d
690, 697 (7th Cir. 2012)). Here, the record shows that, for a period of less than six
months, Plaintiff worked for eight hours per week, in two weekly shifts of just four
hours each, at a job where he was allowed to alternate position between standing,
sitting on a stool, and walking. (R. at 39, 42–43). He eventually determined that
even that level of activity was more than he could bear. (Id. at 39, 42–43, 52). This
limited level of work is not inconsistent with the treating physicians’ findings that
Plaintiff is in pain, needs to shift frequently from a seated to standing position, and
can handle only low-stress work. (Id. at 550–55, 557–64). Further, Plaintiff’s “unsuccessful attempts to pursue various vocations might just as easily provide corroboration that [his] impairments significantly limited [his] ability to work, as opposed
to evidence that [his] ability was greater than [he] alleged.” McKinzey v. Astrue, 641
F.3d 884, 891 (7th Cir. 2011).
Similarly, the ALJ’s reasoning that Dr. Schueneman’s opinion is inconsistent
with Plaintiff’s “forty work applications he made after disability onset to obtain unemployment insurance” (R. at 27) is contrary to Seventh Circuit precedent. Applying for work does not necessarily mean that Plaintiff is capable of full-time work. Cf.
Jelinek v. Astrue, 662 F.3d 805, 812 (7th Cir. 2011) (“[W]e are hard-pressed to un-
Fugate v. Colvin, No. 14 C 4240
Page 25 of 30
derstand how Jelinek’s brief, part-time employment supports a conclusion that she
was able to work a full-time job, week in and week out, given her limitations.”). The
Seventh Circuit has held that a Social Security claimant’s certifying that he is able
to work for the purpose of collecting unemployment insurance benefits might have
some bearing on his credibility. Lott v. Colvin, 541 F. App’x 702, 707 (7th Cir. Oct.
16, 2013); Schmidt v. Barnhart, 395 F.3d 737, 746 (7th Cir. 2005). However, an ALJ
cannot consider ability-to-work certifications and job applications to reject a treating physician’s opinion unless the ALJ also addresses any reasons that the claimant
provides for his actions. Richard v. Astrue, 370 F. App’x. 727, 732 (7th Cir. Apr. 13,
2010). For example, financial desperation might drive someone to falsely certify
that to certify that she can work. Id. Or, “a claimant might seek a job in ignorance
of the nature of his conditions, only to find later, after being hired, that his attempt
to work is unsuccessful due to his disabilities.” Heldenbrand v. Chater, 132 F.3d 36,
1997 WL 775098, at *13 (7th Cir. Dec. 15, 1997). Here, Plaintiff testified that at the
time he was submitting job applications and receiving unemployment insurance
benefits, he hoped to find work that he could do despite his limitations. Later, he
learned that even an eight-hour-a-week job was impossible. (R. at 47, 49, 52). Such
actions do not undermine Dr. Schueneman’s opinion.
Fifth, Plaintiff’s trip to Indiana as the passenger in a car (R. at 26–27), is not inconsistent with his physicians’ opinions. During the 2012 trip to Fort Wayne, Indiana, Plaintiff’s father stopped several times during the drive out of concern for
Plaintiff’s need to stretch his legs, and the trip still caused him pain. (Id. at 46–47,
Fugate v. Colvin, No. 14 C 4240
Page 26 of 30
53). The ALJ also cited Plaintiff’s “light housework” as further evidence that his
abilities exceeded those described by his doctors. (Id. at 27). But the Seventh Circuit
has “repeatedly cautioned that a person’s ability to perform daily activities, especially if that can be done only with significant limitations, does not necessarily
translate into an ability to work full-time.” Roddy v. Astrue, 705 F.3d 631, 639 (7th
Cir. 2013). Plaintiff’s testimony that he was able to wash only a few dishes (R. at
42–43) indicates that his “light housework” as performed was not inconsistent with
the limitations reported by his treating doctors. The ALJ also contends that Plaintiff’s ability to get into an altercation with his neighbors proves that he is “mobile.”
(Id. at 23). But Plaintiff’s doctors do not contend that he is immobile; instead, they
opine that his pain and fatigue will make it unlikely that he can physically withstand full-time work.
Finally, the ALJ decision to give “substantial weight” to the nonexamining, state
agency medical consultants and adopt the physical RFC findings of Dr. Pardo, over
the treating physicians’ opinions, is contrary to law. (R. at 28). An ALJ cannot reject
the treating physicians’ opinions merely because they are at odds with a state agency medical consultant’s opinion. See Gudgel, 345 F.3d at 470 (“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.”). Dr. Pardo found that Plaintiff could perform light work—sitting or standing for up to six hours in a given work day—with some limitations. (R. at 433–40).
In his assessment, Dr. Pardo cited Dr. Rana’s clinical findings but rejected her con-
Fugate v. Colvin, No. 14 C 4240
Page 27 of 30
clusions, explaining that “the evidence provided by the examining source reveals
only a snapshot of the claimant’s functioning.” (Id. at 439). But Dr. Pardo did not
indicate which evidence contradicted that “snapshot,” providing only the details of
Dr. Rana’s own examination as support for his rejection of her conclusions. Neither
Dr. Pardo nor the ALJ identifies which medical evidence supports their conclusion
that Plaintiff has the ability to sit or stand for six hours in a work day. Further, Dr.
Pardo examined the record and prepared his opinion in December 2011, before over
100 pages of medical records were subsequently submitted, including the treating
physicians’ opinions. See Jelinek, 662 F.3d at 812 (criticizing ALJ for relying on
stale DDS opinions over that of the more recent treating physician opinion); Scott,
647 F.3d at 734, 739–40 (DDS opinion did not take into account the entire record).
The ALJ’s reliance on Dr. Pardo’s RFC Assessment was therefore misplaced.
The ALJ also assigned “substantial weight” to the opinions of Drs. Kim and
Pittman, two other nonexamining medical consultants who reviewed the record and
confirmed Dr. Pardo’s RFC assessment, finding their conclusions “consistent with
the record as a whole and [with] work that the claimant performed after onset for
five months.” (R. at 28). However, by referring to somatic dysfunction as a “mental
impairment,” the opinions of Drs. Kim and Pittman rest on a misunderstanding of
substantial portions of the record, as discussed above.
Even where a treating doctor’s opinion is not given controlling weight, an ALJ
must still “address the appropriate weight to give that opinion.” Stage, 2016 WL
492333, at *5; see also Scott, 647 F.3d at 740; Campbell, 627 F.3d at 308. In making
Fugate v. Colvin, No. 14 C 4240
Page 28 of 30
that determination, the regulations require the ALJ to consider a variety of factors,
including: (1) the length, nature, and extent of the treatment relationship; (2) the
frequency of examination; (3) the physician’s specialty; (4) the types of tests performed; and (5) the consistency and support for the physician’s opinion. 20 C.F.R.
§ 416.927(d)(2); Campbell, 627 F.3d at 308. Here, Plaintiff has a substantial history
of care at the Ravenswood Clinic, and visited the Clinic monthly throughout the relevant time period. On remand, if the ALJ elects not to give controlling weight to the
treating physicians’ opinions and provides good reasons for doing so, he must still
evaluate the required regulatory factors and provide a “sound explanation” for
whatever weight he gives to those opinions. Punzio, 630 F. 3d at 710.
B. The ALJ’s Credibility Assessment Was Based on a Flawed Understanding of the Medical Record.
Plaintiff also contends that the ALJ’s unfavorable assessment of his credibility
was not supported by substantial evidence. (Dkt. 11 at 13–15). As Plaintiff notes,
the ALJ’s credibility assessment flowed in part from the ALJ’s failure to recognize
“extensive clinical and diagnostic abnormalities . . . such as those detailed by the
treating doctors, before concluding treatment records failed to show any significant
findings.” (Id. at 14). The Court agrees. On remand, the ALJ shall reevaluate Plaintiff’s complaints with due regard for the full range of medical evidence. See
Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001).
Fugate v. Colvin, No. 14 C 4240
Page 29 of 30
VI. CONCLUSION
For the reasons stated above, Plaintiff’s motion for summary judgment [10] is
GRANTED, and Defendant’s Motion for Summary Judgment [18] is DENIED.
Pursuant to sentence four of 42 U.S.C. § 405(g), the ALJ’s decision is reversed, and
the case is remanded to the Commissioner for further proceedings consistent with
this opinion.
E N T E R:
Dated: March 16, 2016
MARY M. ROWLAND
United States Magistrate Judge
Fugate v. Colvin, No. 14 C 4240
Page 30 of 30
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?