Nagel v. Colvin
Filing
19
MEMORANDUM Opinion and Order Signed by the Honorable Sheila Finnegan on 1/22/2016: Plaintiff's Motion for Summary Judgment 7 is granted. Pursuant to sentence four of 42 U.S.C. § 405(g), the ALJ's decision is reversed, and this case is remanded to the Social Security Administration for further proceedings. Civil case terminated. [For further details see memorandum opinion and order.] Mailed notice. (is, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PAMELA NAGEL,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
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No. 14 C 8060
Magistrate Judge Finnegan
MEMORANDUM OPINION AND ORDER
Plaintiff Pamela Nagel seeks to overturn the final decision of the Commissioner
of Social Security (“Commissioner” or “Defendant”) denying her application for Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 416.
The parties consented to the jurisdiction of the United States Magistrate Judge pursuant
to 28 U.S.C. § 636(c), and Plaintiff filed a motion for summary judgment. (Doc. 8). After
careful review of the record, the Court grants Plaintiff’s motion and remands the case for
further proceedings.
PROCEDURAL HISTORY
Plaintiff applied for DIB on November 15, 2011. In her application, she alleged
disability on the basis of spinal stenosis, polyarthritis, depression, digestive problems,
bronchitis, and allergies beginning on January 2, 2007, approximately four years before
December 31, 2011, the date upon which she was last insured for DIB (the “DLI). (R.
21, 154-55, 181).
The Social Security Administration denied Plaintiff’s application
initially on February 17, 2012, and again upon reconsideration on May 15, 2012. (R.
72-73).
She then filed a timely request for a hearing and appeared before
Administrative Law Judge Joel G. Fina (the “ALJ”) on May 15, 2013. (R. 34-71). The
ALJ heard testimony from Plaintiff, who was represented by counsel, a vocational
expert (“VE”), and Sheldon J. Slodki, M.D., an independent medical expert. On July 12,
2013, the ALJ found that Plaintiff was capable of performing her past relevant work.
Therefore, the ALJ found that Plaintiff was not disabled at any time from the alleged
onset date through her DLI and denied her application for benefits. (R. 19-26).
On October 14, 2015, Plaintiff filed a complaint for judicial review. In her motion
for summary judgment, Plaintiff identifies three bases upon which this Court should
remand the decision to the Commissioner. First, Plaintiff argues that the ALJ did not
assign proper weight to the several medical opinions of record, particularly with respect
to the opinion of her treating physiatrist. Second, she urges that the ALJ erred by
discrediting her subjective pain allegations without considering and discussing the
regulatory credibility factors. Finally, she contends that the ALJ erred by overlooking
certain hearing testimony of the independent medical expert.
FACTUAL BACKGROUND
Plaintiff was born on February 6, 1958, and was fifty-five years of age at the time
of the ALJ’s decision. (R. 154). She lives with her husband and youngest daughter,
has completed some college course work, and prior to her application for DIB, she
worked as a loan processor and a personal banker. (R. 46-48). She left the work force
on January 2, 2007 when she resigned from the bank at which she worked. As Plaintiff
explained at the hearing, she experienced increasing difficulty concentrating in her loan
processing position because she “couldn’t sit or stand or do the job anymore due to the
pain.” (R. 47). The bank decided to “relocate [Plaintiff] to a different position, . . .” a
2
“[t]eller position, which required a lot of standing” because of Plaintiff’s “physical
condition and the fact that [she] was missing work[,]” which occurred “two or three days
every week or other week.”
(Id.).
Plaintiff resigned rather than transfer positions
because she believed she “couldn’t handle the [teller] position” due to the amount of
standing. (R. 47-48).
A.
Medical History
The earliest medical evidence in the record dates to 2006, prior to Plaintiff’s end
of employment. The record reflects that, between 2006 and 2012, she saw her primary
care physician and other specialists for various complaints that included allergies,
asthma, and digestive issues. (R. 299-304, 347-55). During some of the primary care
visits, Plaintiff reported knee pain, and a medical imaging report dated January 9, 2006
documented some mild degenerative changes. (R. 275-78). Some years later, Plaintiff
injured her wrist during a fall, and an x-ray dated April 21, 2010 documented a fracture
of Plaintiff’s right wrist, for which she was given a brace and pain medication. (R. 294,
364-65).
Although Plaintiff’s employment ended in 2007 and she lost healthcare
insurance at that time, she continued seeing at least some of her medical providers.
Treatment notes from this period document some complaints of back pain (R. 304), but
the record does not contain medical records related to mental health, back, or arthritisrelated treatment.
Six weeks before her date last insured, Plaintiff filed her application for DIB on
November 15, 2011. Several days later, on November 21, 2011, she saw physiatrist
Lawrence Frank, M.D. with complaints of low back pain, leg pain, and wrist pain. (R.
305). Dr. Frank’s notes indicate that Plaintiff told him that she had applied for DIB and
3
was seeing him because her attorneys “recommended a specialist.” (Id.). Although the
visit was an “initial evaluation,” Dr. Frank recalled that Plaintiff had previously seen him,
the last visit occurring in 2004.
(Id.).
In the “past medical history” portion of his
treatment note, he summarized Plaintiff’s self-reported medical history, which included
depression, anxiety, osteoarthritis, osteoporosis, two lumbar surgeries, one neck
surgery, and epidural injections for pain management. (Id.; see also R. 342-44). In his
physical examination, Dr. Frank observed that Plaintiff had “painful limited lumbar
extension” and was able to stoop forward only by ten degrees. (R. 305). He further
stated that, “[n]eurologically, [Plaintiff was] intact in the lower extremities to light touch
sensation, reflexes, and strength.” (Id.). He observed a “relatively good hip range of
motion.” (Id.). Dr. Frank diagnosed her with osteoarthritis of the back and legs, and
opined that medical imaging was not needed to make this diagnosis because it “is selfevident” and Plaintiff lacked healthcare insurance. (R. 306). He prescribed Naprosyn
(an anti-inflammatory) and doxepin (an antidepressant), and asked her to return in four
to six weeks. (Id.).
At the December 20, 2011 follow-up appointment, Dr. Frank found unchanged
Plaintiff’s physical condition, and he newly prescribed Mobic (an anti-inflammatory) and
doubled the doxepin dosage. (R. 334). On February 2, 2012, Plaintiff returned to Dr.
Frank and reported that the Mobic was ineffective. (R. 394). She also stated that the
Naprosyn, while helpful for pain, “seemed to upset her stomach.” (Id.). Dr. Frank found
no changes during the physical exam, and he again increased her dosage of doxepin,
prescribed an enteric-coated version of Naprosyn (to ameliorate the stomach problems),
and asked her to return in six weeks. (Id.).
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On February 9, 2012, non-examining psychiatrist Glen Pittman, M.D., completed
a consulting opinion for the State of Illinois Bureau of Disability Determination Services
(“DDS”). (R. 368). He opined that there was “insufficient evidence” of a psychiatric
impairment in the above-described records. (R. 368, 380). Days later, on February 14,
2012, Young-Ja Kim, M.D., a non-examining consulting physician, also completed an
opinion for DDS. (R. 389). Relying on the evidence in the record, Dr. Kim opined that
Plaintiff’s allegations of pain, including her claim that she cannot sit or stand without
pain and is not able to sleep longer than two consecutive hours due to pain, were only
partially credible.
(R. 387).
Dr. Kim did find, however, that Plaintiff has certain
exertional limitations: she could occasionally lift or carry twenty pounds; frequently lift or
carry ten pounds; stand or walk for six hours in an eight-hour work day; and sit for six
hours in an eight-hour work day. (R. 383).
Plaintiff next visited Dr. Frank on March 15, 2012.
She reported some
improvement but rated the pain as a six out of ten. (R. 400). Plaintiff told Dr. Frank that
standing and walking exacerbated her back pain, and Dr. Frank found that extension,
rotation, and side-bending produced pain during the physical examination. (R. 400-01).
He also found a limited range of motion during extension, with normal reflexes,
unremarkable gait, a normal straight leg raise test, and normal strength. (R. 401). He
diagnosed Plaintiff with lumbosacral spondylosis without myelopathy (degenerative
changes in the spine without neurologic deficits), osteoarthritis at multiple (unspecified)
locations, anxiety disorder, and depressive disorder.
(R. 402).
medications and instructed her to follow up in three months. (Id.).
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He refilled her
On May 10, 2012 and May 14, 2012, DDS obtained additional consulting
opinions from non-examining psychologist Donald Cochran, Ph.D. and non-examining
physician Vidya Madala, M.D. (R. 404-06, 408-10). Each doctor affirmed the findings
of the prior consulting opinions (those of Dr. Pittman and Dr. Kim), notwithstanding
Plaintiff’s allegation of worsening symptoms. (R. 406, 410). Each doctor indicated that
he or she considered additional evidence, including treatment records from Dr. Frank.
(Id.).
On June 18, 2012, Plaintiff returned to Dr. Frank and reported a marked
worsening of her symptoms. (R. 418). She stated that the medication was not helpful,
and that the onset of the pain was sudden – pain that she rated as eight out of ten.
(Id.). Her physical examination was unchanged from the March visit. (See R. 419). Dr.
Frank refilled her medications, newly prescribed Norco (a pain reliever), and asked her
to return in three months. (R. 420). When she did so on October 15, 2012, she again
described worsening of her pain. (R. 412). She reported poor sleep in the past few
weeks, but told Dr. Frank that the medication had been helpful. (Id.). Her subjective
pain rating remained eight out of ten. (Id.). Dr. Frank refilled her prescriptions and
noted that she would be a candidate for facet injections (an invasive procedure for pain
relief) or possibly radiofrequency neurotomy (likewise, an invasive procedure that
disables spinal nerves to prevent transmission of pain signals), but she had “no
insurance.” (R. 414). He directed Plaintiff to follow up in three months, and at her next
appointment, on January 14, 2013, Plaintiff reported no change in her symptoms. (R.
415). The medications were helping “a little,” but the pain ratings and physical exam
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findings were unchanged.
(R. 415, 417).
Dr. Frank refilled her prescriptions and
instructed her to return in three months. (R. 417).
Dr. Frank completed a Pain Report on May 5, 2013 at the request of Plaintiff’s
attorney. (R. 448-49). He stated that he had been seeing Plaintiff for six-to-seven
years, and that she had reported pain “mostly [in her] low back but [also] at 4
extremities and trunk.” (R. 448). Based upon his clinical observations and diagnostic
impressions, Dr. Frank opined that standing and walking were the primary activities in
which Plaintiff experienced her chronic and acute pain, and medication relieved the pain
only temporarily. (R. 448-49). Dr. Frank opined that pain markedly impacted her ability
to concentrate, and based on his observations and treatment, he did not believe she
was able “to function in a competitive work setting . . . on an eight hour per day, five
days per week basis[.]” (R. 449). In addition, Dr. Frank predicted that working would
likely increase the amount of pain Plaintiff experiences. (Id.).
B.
The Administrative Hearing
Plaintiff appeared at a hearing before the ALJ on May 15, 2013, at which both
she and Dr. Slodki testified.
Dr. Slodki is board certified in internal medicine and
appeared as a neutral medical expert. (R. 38). Having had an opportunity to review the
record in this case, Dr. Slodki opined on the nature and extent of Plaintiff’s medical
impairments.
(Id.).
In his view, Plaintiff’s back pain was a significant impairment
between the alleged onset date and the DLI of December 31, 2011. When asked by the
ALJ about imaging studies of Plaintiff’s back during the relevant period, Dr. Slodki
responded that none were present in the record, but he did acknowledge that Plaintiff
had pain in her back, legs, and wrist during this time period. (R. 39-40). For this
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reason, he agreed with the opinions of Dr. Kim and Dr. Madala that Plaintiff had some
environmental and postural limitations. (R. 41).
He also noted that Dr. Frank had
offered a medical opinion and that this was part of the record, but the ALJ did not ask
him to dispute or opine on the opinion.
(See R. 41).
Dr. Slodki also testified, in
response to a question by Plaintiff’s attorney, that Plaintiff’s level of pain “could” be
expected to interfere with her ability to concentrate and sustain tasks, but whether that
was so would depend both “on the individual” and “on the impact.” (R. 44).
C.
The ALJ’s Decision
In his July 12, 2013 decision, the ALJ determined that Plaintiff has osteoarthritis,
lumbosacral spondylosis without myelopathy, degenerative joint disease of the bilateral
knee, obesity, and asthma, each a severe impairment under the Social Security
regulations. (R. 21). The ALJ next evaluated whether Plaintiff’s severe impairments
met or medically equaled the severity of the impairments listed in the appendices to
Subpart P of 20 C.F.R. Part 404, and he found that none of the impairments, alone or in
combination, met the criteria of the relevant listings. (R. 21-22). Thereafter, the ALJ
found that Plaintiff’s residual functional capacity (“RFC”) allowed her to perform light
work with the following additional restrictions: she could lift up to twenty pounds only
occasionally; lift and carry ten pounds frequently; stand or walk for approximately six
hours in an eight-hour day and sit for approximately six hours in an eight-hour work day,
with normal breaks; only occasionally climb ladders, ropes, or scaffolds; frequently
balance, stoop, and crouch; and she must avoid concentrated exposure to respiratory
irritants (such as “fumes, odors, dusts, and gases”) and exposure to poorly ventilated
areas. (R. 22).
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In making this RFC determination, the ALJ reviewed and considered Plaintiff’s
subjective complaints and allegations, her daily activities, and medical records,
including those from Dr. Frank, the consulting doctors, and the testimony of Dr. Slodki.
(R. 24-25). The ALJ accepted the opinion of Dr. Pittman as to the insufficiency of
evidence of psychological impairments, and also accepted the testimony of Dr. Slodki
and the RFC findings of Dr. Kim and Dr. Madala.
(R. 24-25). The ALJ made no
mention of Dr. Frank’s opinion. (See id.). The ALJ also found not credible Plaintiff’s
allegations as to the severity and persistence of her symptoms. (R. 24).
Relying on the testimony of the VE, the ALJ determined at step four that Plaintiff
could return to her past relevant work as a loan processor and as a “customer service
representative,” a position the VE likened to the personal banker position. (R. 25).
Accordingly, the ALJ concluded that Plaintiff was not disabled at any time between
January 2, 2007, the alleged onset date, and December 31, 2011, the DLI, and thus
denied her application for DIB. (R. 25-26).
DISCUSSION
A.
Standard of Review
Judicial review of the Commissioner’s final decision is authorized by section
405(g) of the Social Security Act. See 42 U.S.C. § 405(g). In reviewing the decision,
the Court may not engage in its own analysis of whether Plaintiff is severely impaired as
defined by the Social Security Regulations. Young v. Barnhart, 362 F.3d 995, 1001 (7th
Cir. 2004) (citation omitted). Nor may it “displace the ALJ’s judgment by reconsidering
facts or evidence or making credibility determinations.” Castile v. Astrue, 617 F.3d 923,
926 (7th Cir. 2010) (quoting Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007)). The
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Court’s task is to determine whether the ALJ’s decision is supported by substantial
evidence, which is “‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir.
2011) (quoting Skinner, 478 F.3d at 841).
In making this determination, the court must “look to whether the ALJ built an
‘accurate and logical bridge’ from the evidence to [his] conclusion that the claimant is
not disabled.” Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009) (quoting Craft v.
Astrue, 539 F.3d 668, 673 (7th Cir. 2008)). Where the Commissioner’s decision “‘lacks
evidentiary support or is so poorly articulated as to prevent meaningful review,’ a
remand is required.” Hopgood ex rel. L.G. v. Astrue, 578 F.3d 696, 698 (7th Cir. 2009)
(quoting Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002)). Similarly, where the
Commissioner’s decision “lacks adequate discussion of the issues,” Seventh Circuit
precedent requires remand. Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009) (citing
cases).
B.
Five-Step Inquiry
To recover DIB under Title II of the Social Security Act, a claimant must establish
that she is disabled within the meaning of the Act. Keener v. Astrue, No. 06-CV-0928MJR, 2008 WL 687132, at *1 (S.D. Ill. Mar. 10, 2008).1 A claimant is disabled if she is
unable to perform “any substantial gainful activity by reason of a medically determinable
physical or mental impairment which can be expected to . . . last for a continuous period
of not less than 12 months.” Crawford v. Astrue, 633 F. Supp. 2d 618, 630 (N.D. Ill.
2009) (quoting 42 U.S.C. § 423(d)(1)(A)). In determining whether a claimant suffers
1
The regulations governing the determination of disability for DIB are found at 20 C.F.R. §
404.1501 et seq.
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from a disability, the ALJ conducts a standard five-step inquiry: (1) Is the claimant
presently unemployed? (2) Is the claimant’s impairment severe? (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 her former occupation? and (5) Is the
claimant unable to perform any other work? See 20 C.F.R. §§ 404.1520; Clifford v.
Apfel, 227 F.3d 863, 868 (7th Cir. 2000).
C.
Analysis
Plaintiff seeks remand on the basis of three alleged errors: (1) the ALJ’s flawed
weighting of the medical opinions; (2) his improper credibility determination; and (3) his
failure to consider Dr. Slodki’s opinion about the effect of pain on her concentration
ability. The Court discusses each in turn.
1.
Weighting of Medical Opinions
Plaintiff urges that the ALJ erred by ignoring the opinion of her treating
physiatrist, Dr. Frank, and relatedly, by accepting the opinion of Dr. Slodki without
articulating reasons for doing so. (Doc. 8, at 6-8, 8-9). The Social Security regulations
govern an ALJ’s weighting of medical opinions. 20 C.F.R. § 404.1527(c). A treating
source opinion is entitled to controlling weight if it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence” in the record. 20 C.F.R. § 404.1527(c)(2); Scott v. Astrue,
647 F.3d 734, 739 (7th Cir. 2011); Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir.
2010). Even if a treating doctor’s opinion is not given controlling weight, an ALJ must
determine what weight the opinion merits in light of the regulatory factors. Scott, 647
F.3d at 740; Campbell, 627 F.3d at 308. The analysis is a “two-step process” in which
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the ALJ first determines in light of the factors whether the opinion deserves controlling
weight, and should it not, the ALJ then assigns a weight in light of those same factors.
Duran v. Colvin, No. 15 C 50316, 2015 WL 4640877, at *8 (N.D. Ill. Aug. 4, 2015). 2 In
making both determinations, the ALJ considers: (1) the length, nature, and extent of the
treatment relationship; (2) the frequency of examination; (3) the doctor’s specialty; (4)
the types of tests performed; and (5) the consistency and support for the doctor’s
opinion. 20 C.F.R. § 404.1527(c)(2)-(5); see also Simila, 573 F.3d at 515. These same
factors apply to the ALJ’s consideration and weighting of medical opinions from nontreating and non-examining sources. 20 C.F.R. § 404.1527(e); see Cirelli v. Astrue, 751
F. Supp. 2d 991, 1006-07 (N.D. Ill. 2010). At bottom, the ALJ must offer “good reasons”
for the weight he assigns. Scott, 647 F.3d at 739; Bauer v. Astrue, 532 F.3d 606, 608
(7th Cir. 2010).
Because the ALJ did not consider and assign weight to Dr. Frank’s opinion
(specifically, the several limitations he suggested in the May 5, 2013 “Pain Report”), the
ALJ erred and remand is required. The ALJ’s decision, as described, has no discussion
of Dr. Frank’s opinion and as a result, the ALJ did not articulate any legally sufficient
reasons for disregarding it. ALJs are obligated to consider each of the medical opinions
in the record, see 20 C.F.R. § 404.1527(b) (“we will always consider the medical
opinions in your case record . . .”), and the ALJ’s decision provides no indication that he
met this requirement. Defendant suggests that, although the ALJ “did not specifically
2
There is an apparent conflict about whether the ALJ make these determinations in two
separate steps, or whether a single, conflated discussion suffices. See Duran, 2015 WL
4640877, at *9-10 (explaining the two approaches and their bases in Seventh Circuit authority).
The Court notes the conflicting authority but need not adopt an approach because, under either,
the ALJ erred in his failure to evaluate Dr. Frank’s opinion at all, and in his acceptance of Dr.
Slodki’s opinion without a discussion of the regulatory factors.
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discuss” Dr. Frank’s opinion, there was no error because the ALJ discussed several of
Dr. Frank’s treatment notes and “was aware of [Dr. Frank’s] completed form.” (Doc. 17,
at 4). Defendant’s view is unpersuasive, as it is speculative the ALJ was “aware” of the
opinion simply because he discussed Dr. Frank’s treatment notes. Moreover, the ALJ’s
“awareness” of Dr. Frank’s opinion does not relieve him of the obligation to evaluate it
under the applicable regulatory factors and thereafter afford it weight for the “good
reasons” he provides in writing.
Notwithstanding the error, Defendant contends that the Court should affirm the
ALJ’s decision because the error was harmless.
To recover DIB, a plaintiff must
demonstrate that she became or was disabled between the alleged onset date and the
DLI – here, between January 2, 2007 and December 31, 2011. See Parker v. Astrue,
597 F.3d 920, 924 (7th Cir. 2010) (explaining the requirement of disability during the
relevant period for DIB).
Dr. Frank completed the Pain Report in May 2013, and
Defendant points out that Dr. Frank “did not indicate that his opinion applied to Plaintiff’s
condition prior to her date last insured.” (Doc. 17, at 5). Accordingly, in Defendant’s
view, the Pain Report is entirely irrelevant to the question before the ALJ: whether
Plaintiff was disabled between the alleged onset date and the DLI.
The harmless error argument is unavailing. An error is harmless only when the
Court is “convinced that the ALJ will reach the same result” upon remand. McKinzey v.
Astrue, 641 F.3d 884, 892 (7th Cir. 2012). In this case, the same result is not certain
upon remand. As the Seventh Circuit has explained, evidence that post-dates the DLI
may suggest a claimant is currently disabled, and it may also suggest disability during
the relevant period; an ALJ may reasonably conclude that such evidence does or does
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not support the application for DIB. See Eichstadt v. Astrue, 537 F.3d 663, 666 (7th Cir.
2008); Mackay v. Astrue, No. 11 C 283, 2011 WL 6753848, at *13 (N.D. Ill. Dec. 22,
2011).
In either case, remand may be appropriate for consideration of a post-DLI
medical opinion. See Estok v. Apfel, 152 F.3d 636, 639-40 (7th Cir. 1998). Dr. Frank’s
opinion does not state, as Defendant correctly notes, that it pertains to Plaintiff’s
condition prior to the DLI, but it also does not state that it pertains only to dates
thereafter. Simply put, the opinion is silent on the matter, but even in this silence
(without clarification from Dr. Frank), the ALJ could view the opinion as evidence of a
disability prior to the DLI. It is not for this Court to speculate about the ALJ’s view or to
resolve the issue in the first instance. Because the ALJ’s resolution of this question,
along with his analysis of the opinion under the regulatory factors, may well lead to an
award of benefits, the error is not harmless and the remand is required.
Additionally, the Court agrees that the ALJ failed to provide legally sufficient
reasons for accepting Dr. Slodki’s opinion regarding Plaintiff’s residual functional
capacity. The ALJ wrote: “The testimony of the medical expert, Dr. Slodki[,] and the
Disability Determination Service analysis [Dr. Kim and Dr. Madala] for a light residual
functional capacity are accepted.” (R. 24) (internal citations omitted). The ALJ had just
concluded his discussion of the medical evidence, and continued on to discuss
Plaintiff’s daily activities, but he articulated no view as to how the medical evidence or
activities supported Dr. Slodki’s opinion, and relatedly, his own decision to rely upon the
opinion. As observed, the ALJ must state “good reasons” for weighting an opinion; his
stating that an opinion is “accepted” without explaining why fails to communicate any
reason, let alone a “good” one. For the same reason, the ALJ also failed to provide
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legally sufficient reasons for his weighting of the consulting opinions. Although Plaintiff
raised the argument only with respect to Dr. Slodki, the ALJ’s decision reflects that he
also accepted, without stating why, the opinions of Dr. Kim, Dr. Madala, and Dr. Pittman
(and presumably Dr. Cochran as well, although the opinion makes no mention at all of
his report). An express discussion of the factors was of heightened importance in this
case with respect to the opinions of the independent and DDS physicians (Dr. Slodki,
Dr. Madala, and Dr. Kim), as the record does not reflect that any of them are specialists
like Dr. Frank, who as a physiatrist is an expert “in diagnosing and treating acute and
chronic pain and musculoskeletal disorders.” White v. Barnhart, 415 F.3d 654, 660 (7th
Cir. 2005). Although their lack of specialization alone does not compel the ALJ to give
their opinions lesser weight, it is a factor that the ALJ should have considered and
explained when assessing and weighting the opinions. On remand, the ALJ should
evaluate and weight each of the medical opinions in light of the regulatory factors.
2.
Credibility Determination
Next, Plaintiff argues that the ALJ’s credibility determination is flawed because
the ALJ cited no reasons for discrediting her subjective allegations of pain. (Doc. 8, at
9-10). An ALJ “must justify the credibility finding with specific reasons supported by the
record[.]” Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009). The regulations require
that an ALJ consider objective medical evidence, the claimant’s daily activities,
allegations of pain, aggravating factors, course of treatment, and functional limitations
when assessing credibility. 20 C.F.R. § 404.1529(c); Simila, 573 F.3d at 517 (citing
Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006)).
Usually, a court gives
deference to the credibility determination, for an ALJ “is in the best position to evaluate
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credibility.” Simila, 573 F.3d at 517. However, an ALJ’s “failure to adequately explain
his or her credibility finding . . . is grounds for reversal.” Minnick v. Colvin, 775 F.3d
929, 937 (7th Cir. 2015).
In this case, the Court agrees with Plaintiff that the ALJ erred. In his decision,
the ALJ wrote: “claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms [of pain]; however, the claimant’s statements
concerning the intensity, persistence[,] and limiting effects of these symptoms are not
entirely credible for the reasons explained in this decision.” (R. 23) (emphasis added).
The ALJ went on to discuss and analyze the medical evidence, but not once did he
articulate, cite, or explain what were those reasons (which might have been any of the
reasons with which federal courts have become familiar in reviewing Social Security
appeals, such as inconsistency of allegations with the plaintiff’s daily activities, lack of
objective support, conservative treatment, and work history). In this silence, the ALJ’s
decision leaves the Court to infer and speculate as to what were his bases for finding
Plaintiff not credible, and this “failure to adequately explain” constitutes error. Minnick,
775 F.3d at 937.
Defendant urges that the ALJ “adequately explained his decision” because the
ALJ stated that he made this determination consistent with the requirements of Social
Security Regulation 96-7p. His decision, she argues, is owed deference so long as it is
not “patently wrong.” (Doc. 17, at 8-9). Plaintiff retorts that this oft-used phrase is
“useless boilerplate,” quoting Shauger v. Astrue, 675 F.3d 690 (7th Cir. 2012), and the
language does not satisfy the ALJ’s obligation to support his finding with “specific
reasons.” (Doc. 8, at 10). The Court agrees. This is not an instance where the Court
16
owes deference to an ALJ’s view of particular facts, such as his conclusions about a
plaintiff’s work history.
There, even were the Court to disagree with the ALJ’s
reasoning, the determination must stand so long as it is not “patently wrong.” Simila,
573 F.3d at 517.
Here, in contrast, the ALJ omitted discussion of the regulatory
credibility factors. He did not discuss any facts within context of a particular factor,
articulate a conclusion about those facts, and explain how that conclusion impacted
Plaintiff’s credibility.
Thus, his decision precludes the Court from reviewing, even
minimally, the legal sufficiency of his reasons. As the Villano court reasoned, an ALJ’s
mere discussion of facts relevant to the credibility determination, such as daily activities,
cannot support a credibility finding when the ALJ does not “explain whether [the
plaintiff’s] daily activities were consistent or inconsistent with the pain and limitations
she claimed.” 556 F.3d at 562.
Even reading the decision in a way most favorable to Defendant, and thereby
construing the credibility finding to rely on a discrepancy between Plaintiff’s allegations
and the objective evidence (more accurately, the lack thereof), the reason is not
enough. The Villano court held that “a lack of medical evidence alone is an insufficient
reason to discredit testimony.” Id. at 562-63. Further, the lack of objective evidence
may have a reasonable explanation: Plaintiff’s lack of medical insurance. Indeed, Dr.
Frank’s Pain Report suggested that Plaintiff is in need of medical care but cannot obtain
it due to her circumstances (R. 449), so this may explain why the record lacks
corroborating objective evidence. It is for the ALJ to consider, weigh, and resolve such
an issue in the first instance, and the regulations require him to do so. On remand, the
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ALJ should reevaluate the credibility of Plaintiff’s allegations in light of the regulatory
factors and offer “specific reasons” for his credibility finding. Terry, 550 F.3d at 447.
3.
Dr. Slodki’s Testimony
Finally, Plaintiff contends that the ALJ ignored Dr. Slodki’s statement that her
impairments “could be expected to produce some problems with her ability to
concentrate and sustain tasks.” (Doc. 8, at 8). “[A]n ALJ need not discuss every piece
of evidence in the record, [but] the ALJ may not ignore an entire line of evidence that is
contrary to the ruling.” Terry, 550 F.3d at 447. In his opinion, the ALJ made no mention
of Dr. Slodki’s suggestion, and Plaintiff urges this omission was error. In Plaintiff’s view,
because she testified at the hearing that the bank planned to transfer her out of her loan
processing position because of her “pain and inability to concentrate” (which effectively
led to the end of her employment), and also because Dr. Frank opined that her pain
markedly impacted her ability to sustain concentration and attention, this line of
evidence was a “significant” one that required discussion. (Doc. 8, at 8 (citing R. 47,
449)).
The Court rejects this claim of error because it mischaracterizes Dr. Slodki’s
testimony.
At the hearing, Plaintiff’s attorney asked: “So the level of pain she’s
experiencing[,] is there – could that be expected to produce some problems with her
ability to concentrate and sustain tasks?”
(R. 44).
Dr. Slodki responded: “Could.
Depends on the individual. Depends on the impact.” (Id.). Immediately prior, Dr. Slodki
testified that Plaintiff’s pain lacked objective support, and he took care to note that “the
back problem” did not appear to be a central complaint in her “long office record in
which she goes to the office frequently . . .” for digestive, asthma, and allergy issues
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between January 2, 2007 and December 31, 2011. (R. 42). He subsequently opined
that the existence of her pain was a credibility issue. (R. 43). Colored by that context,
what Dr. Slodki’s response indicates is that the pain Plaintiff alleged could produce
concentration problems for some individuals, depending on its particular impact. His
phrasing rendered the response not one about Plaintiff, but instead a generalized nonanswer; he might as well have said, “it’s possible.” The statement is not, as Plaintiff
suggests, Dr. Slodki’s opinion about her own limitations due to pain, which undercuts
the argument that the ALJ ignored a significant line of evidence. To the extent the ALJ
erred in not considering the impact of the pain on Plaintiff’s concentration and attention
abilities, such error arose in his failure to consider Dr. Frank’s Pain Report (which
contained, as Plaintiff observes, an opinion about that matter). This will be addressed
by the ALJ when he evaluates Dr. Frank’s opinion on remand.
CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Summary Judgment (Doc. 7)
is granted. Pursuant to sentence four of 42 U.S.C. § 405(g), the ALJ’s decision is
reversed, and this case is remanded to the Social Security Administration for further
proceedings consistent with this Opinion.
ENTER:
Dated: January 22, 2016
_____________________________
SHEILA FINNEGAN
United States Magistrate Judge
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