Tolbert v. Social Security Administration
MEMORANDUM Opinion and Order: The Commissioner's motion for remand 30 , is granted in part in that the case will return to the Social Security Administration for final disposition; the plaintiff's motion for summary judgment 16 is granted in part in that the remand order is with instructions to calculate and award benefits retroactive to April 1, 2005. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 7/18/2017:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
No. 14 C 8142
Judge Thomas M. Durkin
MEMORANDUM OPINION AND ORDER
Rochelle Tolbert brings this action for judicial review of the decision of the
Commissioner of Social Security denying her claim for disability insurance benefits
(“DIB”) and social security income (“SSI”). Ms. Tolbert moved this Court for
summary judgment. R. 16. In lieu of a response, the Commissioner filed a motion
for remand, conceding errors in the decision of the Administrative Law Judge
(“ALJ”). R. 30 at 1. The Commissioner’s motion for remand is granted in part in that
the case will return to the Social Security Administration for final disposition; Ms.
Tolbert’s motion for summary judgment is also granted in part in that the remand
order is with instructions to calculate and award benefits to Ms. Tolbert retroactive
to April 1, 2005. The Court’s reasoning is set forth below.
This is the second appeal of this case to the district court. The opinion on the
first appeal, decided by Judge Mason in 2012, sets forth in extensive detail the
medical history relevant to this case. See Tolbert v. Astrue, 2012 WL 1245611 at *18 (N.D. Ill. Apr. 13, 2012) (remanding to the Social Security Administration for
further proceedings). The Court will not recite that entire medical history here, as it
is voluminous. Instead, it incorporates by reference Judge Mason’s recitation of the
medical evidence, and summarizes the salient facts as follows.
Ms. Tolbert was 43 years-old at the time this appeal was filed, and claims
that she became disabled within the meaning of 42 U.S.C. § 416(i)(1) on April 1,
2005. R. 1. At all times relevant to this case, Ms. Tolbert has been a single mother of
three children, the youngest of whom is disabled. A.R. 454-58.1 She has at all times
lived with her children and her grandchild in an apartment in Chicago. Id.
Ms. Tolbert completed the 8th grade and part of her first year of high school.
Id. She does not now, nor has she ever, had a driver’s license. Id. As an adult, she
received vocational and on-the-job training in home care services, landscaping and
security work. Id. She has not been substantially gainfully employed since April 1,
2005. Id. at 157-68.
Ms. Tolbert has maintained that since that date, she has been unable to
complete housework due to back and joint pain, unable to stand for more than
several minutes at a time, unable to walk more than a half-block without pain and
difficulty breathing, and unable to complete even sedentary tasks such as reading
or watching a television show without falling asleep. Id. at 11-61, 157-68, 444-508.
Citations to R. refer to the record number that a document is assigned on the
docket for this case. Citations to A.R. refer to the administrative record of these
proceedings, which is titled as R. 15 on this docket.
The medical records, including x-rays and other medical imaging reports, support
Ms. Tolbert’s representations. See, e.g., id. at 228-245, 261-271, 293-97, 315, 333-34,
358-360, 372-382, 731-33. Ms. Tolbert has been prescribed a host of medications
over time to treat shortness of breath and wheezing, see id. at 689 (Albuterol), as
well as pain and inflammation, see, e.g., id. at 166 (Feloditine, Indapamide, Aspirin,
Folic Acid, Cyclobenzaprine to control pain and inflammation), id. at 336 (adding
Tylenol 3 with codeine). In addition, Ms. Tolbert’s longstanding complaints of
daytime drowsiness and lack of energy, coupled with an acute cardiac incident in
2008, led her to undergo a sleep study in 2009, which ultimately resulted in a
diagnosis of sleep apnea. Id. at 280-82; 299-300; 335-57. Ms. Tolbert was prescribed
a CPAP machine to treat her symptoms, id. at 361-66, however, the daytime
drowsiness persists, see id. at 317, 461, 802-03. Ms. Tolbert has also consistently
reported, and more recently sought treatment for depression. Id. at 393-94, 401-09.
Ms. Tolbert filed the DIB and SSI applications at issue on May 8, 2006,
alleging disability beginning April 1, 2005. A.R. 135-42, 157-81. She claimed then,
as she has claimed for more than a decade since, that arthritis, diabetes,
hypertension, hypothyroidism, sleep apnea, and morbid obesity (weight in excess of
350 pounds, body mass index of greater than 50) prevent her from obtaining gainful
Ms. Tolbert’s claims were initially denied on August 17, 2006, id. at 62-63,
66-80, and again upon request for reconsideration five months later, id. at 64-65,
81-87 . She appeared unrepresented before the ALJ on March 18, 2009, and again
on June 10, 2009 after medical records had been added to her file. See id. at 11, 46.
On August 31, 2009, the ALJ issued a written decision denying Ms. Tolbert’s
applications for benefits. Id. at 66-76. Central to the ALJ’s determination of Ms.
Tolbert’s claims were his unfavorable assessment of her credibility and rejection of
the opinion of her treating physician, Dr. Ahmed. Id. at 72-75. Ms. Tolbert
requested further review of her case by the Social Security Administration’s
Appeals Council. Id. at 131-34. The Appeals Council denied her request for review,
set aside that denial to consider additional medical records, and then denied the
request again, rendering the decision final and appealable. Id. at 1-10.
As previously noted, Ms. Tolbert then sought judicial review in this district.
Tolbert, 2012 WL 1245611 at *1. On April 23, 2012, Judge Mason issued a lengthy
Memorandum Opinion and Order granting in part and denying in part her motion
for summary judgment and remanding the case for further review. Id. Specifically,
the court found the ALJ’s credibility assessment of Ms. Tolbert “unreasonable and
not supported by the record,” replete with findings contradicted by the medical
evidence and based on considerations that were either impermissible under Seventh
Circuit precedent or not grounded in common sense. Id. at *11-12. In particular, the
court took issue with the ALJ’s finding that Ms. Tolbert’s claims of daytime
drowsiness lacked support in the medical record. Id. at *12. The Court furthermore
cautioned that on remand, “if the ALJ declines to give th[e] opinion [of Dr. Ahmed,
Ms. Tolbert’s treating physician] controlling weight, he must properly articulate his
reasons for doing so.” Id. at *12-13.
During the pendency of the first appeal to the district court, Ms. Tolbert filed
a second application for DIB and SSI. See A.R. 641-48. The reviewing medical
consultant opined at that time, based on evidence of chronic hip, lower back and
knee pain, degenerative arthritis, and limited range of motion, that Ms. Tolbert’s
severe impairments equaled listing-level disability 1.02A (Major dysfunction of a
joint(s) due to any cause). Id. at 782-85. She identified the date of onset as
November 19, 2009 “based on evidence which shows that claimant weighed 404 lbs.
on this date.” Id. at 784. The Appeals Council reviewed and affirmed the
determination. See id. at 537-40.
In accordance with Judge Mason’s order, the Appeals Council remanded the
case to the ALJ for a determination of disability for the period from April 1, 2005,
the alleged onset date in Ms. Tolbert’s first application for benefits, to November 19,
2009, the onset date identified by the physician who reviewed and approved Ms.
Tolbert’s second application for benefits. Id. Ms. Tolbert re-appeared before the ALJ
on December 9, 2013, with the assistance of counsel. See id. at 444-508. Her
testimony at that hearing was consistent with the testimony she had given a few
years earlier, though she reported that the condition of her left knee had become
more painful over time. See id. at 455-77.
The ALJ’s Decision
On June 26, 2014, the ALJ again denied Ms. Tolbert’s claims. See A.R. 42143. Specifically, he found that while Ms. Tolbert had the severe impairments of
morbid obesity, osteoarthritis in the knees and lumbar spine, obstructive sleep
apnea, insulin dependent diabetes mellitus, and depression from April 1, 2005
through November 18, 2009, these impairments were insufficiently severe to
constitute a disability, because Ms. Tolbert had the residual functional capacity
(“RFC”) to perform restricted sedentary work. Id. 427-35. In reaching this
conclusion, the ALJ again made adverse credibility determinations as to both Ms.
Tolbert and her treating physician, Dr. Ahmed. See id. He relied instead on the RFC
determinations of three state agency physicians, none of whom considered the
impact of Ms. Tolbert’s sleep apnea and daytime drowsiness when reaching their
conclusions about her ability to perform restricted sedentary work. See id. at 43335. Ms. Tolbert once again appeals, this time seeking summary judgment in her
favor on a complete medical record. R. 17.
Judicial review of a final decision of the Social Security Administration is
generally deferential. The Social Security Act requires the court to sustain the
ALJ’s findings if they are supported by substantial evidence. See 42 U.S.C. § 405(g).
Substantial evidence means “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,
401 (1971). The court should review the entire administrative record, but must “not
reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute
[its] own judgment for that of the [ALJ].” Clifford v. Apfel, 227 F.3d 863, 869 (7th
Cir. 2000). “However, this does not mean that [the court] will simply rubber-stamp
the [ALJ’s] decision without a critical review of the evidence.” Id. A decision may be
reversed if the ALJ’s findings “are not supported by substantial evidence or if the
ALJ applied an erroneous legal standard.” Id. In addition, the court will reverse if
the ALJ does not “explain his analysis of the evidence with enough detail and
clarity to permit meaningful appellate review.” Briscoe ex rel. Taylor v. Barnhart,
425 F.3d 345, 351 (7th Cir. 2005). “Although a written evaluation of each piece of
evidence or testimony is not required, neither may the ALJ select and discuss only
that evidence that favors his ultimate conclusion.” Herron v. Shalala, 19 F.3d 329,
333 (7th Cir. 1994); see Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir. 2014) (“This
‘sound-bite’ approach to record evaluation is an impermissible methodology for
evaluating the evidence.”). Additionally, the ALJ “has a duty to fully develop the
record before drawing any conclusions,” Murphy v. Astrue, 496 F.3d 630, 634 (7th
Cir. 2007), and deference in review is lessened when the ALJ has made errors of
fact or logic, Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014). In oft-quoted
words, the Seventh Circuit has said that the ALJ “‘must build an accurate and
logical bridge from the evidence to his conclusion.’” Clifford, 227 F.3d at 872
(quoting Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014)). When the ALJ has
satisfied these requirements, the responsibility for deciding whether the claimant is
disabled falls on the Social Security Administration, and, if conflicting evidence
would allow reasonable minds to differ as to whether a claimant is disabled, the
ALJ’s decision must be affirmed. Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990)
(internal quotation marks and citation omitted).
However, the ALJ’s decision need not be affirmed, and “[c]ourts have the
statutory power to affirm, reverse, or modify the Social Security Administration's
decision, with or without remanding the case for further proceedings.” 42 U.S.C.
§ 405(g). Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011). “This power includes
the courts’ ability to remand with instructions for the Commissioner to calculate
and award benefits to the applicant,” and “an award of benefits is appropriate . . . if
all factual issues involved in the entitlement determination have been resolved and
the resulting record supports only one conclusion—that the applicant qualifies for
disability benefits.” Id.
This case is unusual because the Commissioner agrees with the Plaintiff that
the ALJ erred in his reaching and articulating his decision. See R. 30. Indeed, the
Commissioner concedes without reservation that “the ALJ did not adequately
explain how Plaintiff’s sleep apnea significantly limited her ability to do basic work
activities, nor did he explain how the residual functional capacity finding
accommodated the limitations stemming from the sleep apnea.” R. 30 at 1 n. 2. On
that basis, the Commissioner states that “[t]he only issue for the Court is to decide
whether to reverse the Commissioner’s final decision and remand for further
administrative proceedings, or reverse the decision with an order to award
benefits.” Id. at 1. For the following reasons, the Court will do the latter.
The ALJ’s credibility determination of Ms. Tolbert is against the
manifest weight of the evidence and is not supported by the record.
The ALJ is given a great amount of deference in his credibility findings.
Getch v. Astrue, 529 F.3d 473, 483 (7th Cir. 2008). However, when the ALJ’s
determination is “patently wrong . . . unreasonable or unsupported,” it may be
overturned. Id. In this case, despite finding Ms. Tolbert “generally credible,” the
ALJ discredited her testimony for three reasons: (1) because she “failed to follow-up
on recommendations made by the treating doctor, which suggests that the
symptoms may not have been as serious as . . . alleged;” (2) because her “allegedly
limited daily activities cannot be objectively verified with any reasonable degree of
certainty;” and (3) because “even if the claimant’s daily activities are truly limited
as alleged, it is difficult to attribute that degree of limitation to the claimant’s
medical condition as opposed to other reasons.” A.R. 433-34. The record does not
support any of these conclusions.
Ms. Tolbert’s Failure to Follow-up
The ALJ discredited Ms. Tolbert’s testimony because she did not pursue diet
and exercise with the rigor her physician recommended. A.R. 427, 430-33. Her
failure to do so, however, does not logically build to the conclusion reached by the
ALJ—that she overstated the seriousness of her symptoms. To the contrary, Ms.
Tolbert’s explanation that her attempts to exercise were stifled by shortness of
breath, body aches, and lack of energy due to poor sleep, actually supports her claim
for disability. See, e.g., id. at 287-360. So, too, do her claims that she lacked
motivation to diet due to depression and low energy. See id. Far from feeling so well
that she opted not to engage in diet and exercise as prescribed, the record
establishes that the debilitating nature of Ms. Tolbert’s symptoms prevented her
from doing so. The contrary conclusion reached by the ALJ is unreasonable.
The Lack of Objective Evidence
The ALJ’s bald conclusion that there is insufficient “objective” medical
evidence of Ms. Tolbert’s condition is puzzling. After all, he thoroughly catalogues
years of medical records in determining her residual functional capacity (“RFC”).
See A.R. 430-33. As set forth above, those records reflect that from 2005 through
2009, Ms. Tolbert had recurring knee and back pain, headaches, swelling in her
feet, ankles and legs, shortness of breath, poor sleep, daytime drowsiness, and
forgetfulness. Id. at 430-32 (citing Exs. 1F, 2F, 4F, 8F, 11F). They establish that
during that same timeframe, Ms. Tolbert was prescribed a host of medications for
treating pain and inflammation. Id. at 431 (citing Exs. 11F). At all relevant times
her height was 5’7” and her weight was in excess of 350 pounds. Id. at 430 (citing
Exs. 1F, 4F, and 11F). The records show that following a sleep study, which Ms.
Tolbert undertook on her doctors’ recommendation, she was diagnosed with
obstructive sleep apnea and prescribed a CPAP machine. Id. at 432 (citing Ex. 8F).
The records also establish that Ms. Tolbert was diagnosed with and treated for
hypertension, hypothyroidism, diabetes, arthritis, and depression. Id. at 431 (citing
Exs. 4F and 11F); id. at 432 (citing Ex. 18F). The Court is unclear how Ms. Tolbert’s
testimony could find any further support than the pages upon pages of medical
reports in the record. The ALJ’s inexplicable concern that Ms. Tolbert’s limitations
are unverifiable is therefore confounding and without basis. It also bears mention
that even if this were not the case, the Seventh Circuit has unequivocally held that
“the ALJ may not discredit a claimant’s testimony solely because there is no
objective medical evidence supporting it.” Villano v. Astrue, 556 F.3d 558, 562 (7th
Cir. 2009). Accordingly, discounting Ms. Tolbert’s credibility on the basis that her
symptoms could not be verified was erroneous.
“Other Reasons” for Ms. Tolbert’s Limitation
Finally, in deciding not to credit Ms. Tolbert’s testimony, the ALJ states that
there may be “other reasons” unrelated to Ms. Tolbert’s medical condition that
explain the chronic joint and back pain, shortness of breath, poor sleep, daytime
drowsiness and other limiting physical and cognitive symptoms that prevent Ms.
Tolbert from working. A.R. 433-34. He does not specify what those “other reasons”
might be, leaving a hole in his logic that prevents his credibility determination from
being upheld. The Court infers (from nothing more than the general context of his
analysis) that the ALJ may consider Ms. Tolbert’s weight to be the “other reason”
she is not working. But under Seventh Circuit precedent, obesity is a compounding
factor when evaluating disability, not a reason to deny benefits. See Villano, 556
F.3d at 562 (noting that “a person who is obese and arthritic may experience greater
limitations than a person who is only arthritic”). Moreover, it was the critical factor
the reviewer of Mrs. Tolbert’s second application for benefits cited when she
determined that Ms. Tolbert was, in fact, eligible for SSI and DIB as of November
19, 2009. See A.R. 782-784 (finding that Mrs. Tolbert’s severe impairments equaled
listing-level disability 1.02A (Major dysfunction of a joint(s) due to any cause) as of
November 19, 2009 “based on evidence which shows that claimant weighed 404 lbs.
on this date”).
The ALJ also comments, almost as an aside, on Ms. Tolbert’s “sporadic
employment,” prior to April 1, 2005. Id. at 434. The intended implication of his
remark is that Ms. Tolbert’s true motive in applying for disability benefits was not
actually her medical condition, but rather her inability to find and maintain steady
work. But the record shows that Ms. Tolbert was consistently employed from 19982005. See A.R. 171. It is therefore illogical to conclude from her employment history
any ulterior motive or non-medical reason for her claimed inability to work,
particularly in light of the overwhelming medical evidence of her physical and
cognitive impairments and, as set forth below, the testimony of the administration’s
vocational experts regarding jobs suitable to her functional limitations.
If there was some other, “other reason” the ALJ was referring to, the Court is
at a loss to identify it. There is no basis in the record to question Ms. Tolbert’s
credibility. The ALJ’s conclusion to the contrary lacks foundation and cannot be
The ALJ’s failure to afford controlling weight to Dr. Ahmed as Ms.
Tolbert’s treating physician was erroneous.
Dr. Ahmed, Ms. Tolbert’s treating physician, opined that Ms. Tolbert’s
“physical routine is restricted” such that she “will not be able to do routine work.”
A.R. 264. He based this conclusion on his long-term doctor-patient relationship with
Ms. Tolbert, and his view of the aggregate impact of “Hypertension, Arthritis,
Chronic Backache, Moderate Obesity, Sleep Apnea, [and] Hypothyroidism,” (and the
medications required to treat those conditions) on Ms. Tolbert’s health. Id. “A
treating doctor’s opinion receives controlling weight if it is ‘well-supported’ and ‘not
inconsistent with the other substantial evidence’ in the record.” Scott v. Astrue, 647
F.3d 734, 739 (7th Cir. 2011) (quoting 20 CFR § 404.1527(c)(2)). If an ALJ declines
to give controlling weight to the claimant’s treating physician, he must offer “good
reasons” for doing so. See id.
On Ms. Tolbert’s first appeal, Judge Mason described the reason given by the
ALJ to discredit Dr. Ahmed’s opinion as “far from good,” and instructed the ALJ on
remand to “consider the length, nature, and extent of the treatment relationship,
frequency of examination, the physician’s specialty, the types of tests performed,
and the consistency and supportability of the physician’s opinion,” as required by
federal regulations. Tolbert, 2012 WL 1245611 at *13 (referring to 20 CFR §
404.157(c)(2)). Unfortunately, the ALJ failed to do so.
In his second opinion, despite finding that Dr. Ahmed “regularly saw the
claimant,” the ALJ rejected Dr. Ahmed’s opinion because “[t]he course of treatment
pursued by the doctor has not been consistent with one would expect if the claimant
were truly disabled.” A.R. 434. Specifically, the ALJ would have expected Dr.
Ahmed to “order [more] x-rays.” Id. Along similar lines, the ALJ found it suspicious
that Dr. Ahmed “relied quite heavily” on Ms. Tolbert’s subjective reports about her
symptoms. See id. Apparently, the ALJ was concerned that without medical
imaging, Dr. Ahmed’s diagnosis was merely conjectural. But Dr. Ahmed, a general
practitioner who specializes in internal medicine, conducted at least 20 physical
examinations of Ms. Tolbert and referred her to specialists for symptoms he lacked
the expertise to diagnose or treat himself. See id. at 232-45, 372-82. Having
regularly spoken to and physically examined Ms. Tolbert, Dr. Ahmed was in an
optimal position to assess her credibility and the consistency between her subjective
grievances and objective physical state. See 20 CFR § 404.1527(c)(2) (explaining
that treating physicians “bring a unique perspective to the medical evidence that
cannot be obtained from the objective medical findings alone or from reports of
individual examinations”). After the sleep study Dr. Ahmed recommended for Ms.
Tolbert, see id. at 385-91, his suspicion that she suffered from sleep apnea was
confirmed, and treatment was ordered accordingly, see id. at 363-65. What is more,
the x-rays ordered by internists at Rush beginning in 2007, after Ms. Tolbert left
Dr. Ahmed’s primary care, do, in fact, show impairments in Ms. Tolbert’s knees and
spine. See id. at 333-34, 713-714, 795-97. Far from contradicting Dr. Ahmed’s
medical opinion, the imaging reports in her medical file bolster it. The Court
therefore considers his opinion to be entitled to controlling weight. The ALJ’s
determination to the contrary cannot be sustained.
The ALJ’s RFC determination was erroneous.
The Commissioner concedes that the ALJ “did not adequately explain how
Plaintiff’s sleep apnea significantly limited her ability to do basic work activities,
nor did he explain how the residual functional capacity finding accommodated the
limitations stemming from the sleep apnea. The ALJ also did not adequately
address Plaintiff’s allegations of falling asleep during the day.” R. 30 at 1 n. 2. Still,
the Commissioner argues that three “competing opinions” offered by the state
agency physicians create an issue of fact that requires further consideration on
remand. Id. at 4 (“When you have three physicians finding that Plaintiff can do
sedentary work and one other physician,” Dr. Ahmed, “finding that she cannot,
there is a discrepancy to be resolved; the record most assuredly does not support
only one conclusion.”). Because none of the three physicians the Commissioner
references took Ms. Tolbert’s sleep apnea into account, the Commissioner is
The agency’s reviewing doctors failed to consider Ms. Tolbert’s sleep
apnea in determining her RFC.
The Court first examines the opinion reached by Dr. Savage, the physician
who testified at Ms. Tolbert’s administrative hearing based on a review of her
medical file. In reaching his conclusion as to Ms. Tolbert’s RFC, Dr. Savage
considered only the arthritic conditions in her knees and back and her weight. See
A.R. 484-85. Dr. Savage testified that he considered Ms. Tolbert’s hypertension,
hypothyroidism and diabetes to be medically controlled and to play no role in her
ability to work. See id. at 480, 483-84, 487. Though Dr. Savage agreed with the
diagnostic report finding that Ms. Tolbert had sleep apnea, id. at 491, he did not
factor sleep apnea into his RFC determination. When asked why not, Dr. Savage
responded that the delay of several months between the date Ms. Tolbert was
referred for a sleep study and the time she actually completed it led him to believe
that Ms. Tolbert’s symptoms of daytime drowsiness were not as severe as she
reported. Id. at 487. Dr. Savage admitted in response to further questioning that his
decision not to consider sleep apnea was not based on medical evidence, but rather
on his “thought,” “extrapolat[ed] from [Ms. Tolbert’s] decision to wait,” that if she
were as uncomfortable and drowsy as she claimed, she would have undergone a
sleep study sooner. Id. at 487-91. Of course, since Dr. Savage never examined Ms.
Tolbert or spoke with her about her symptoms, see id. at 488, his “thought” amounts
to little more than conjecture.
The Court has already found that Dr. Ahmed’s opinion is entitled to
controlling weight and that Ms. Tolbert, who explained that she “didn’t go [to the
sleep clinic sooner] because of depression,” is credible. Dr. Savage’s “thought,” which
contradicts Dr. Ahmed’s medical findings and Ms. Tolbert’s consistent reports of her
subjective symptoms, do not create a fact issue that needs to be weighed. Indeed,
because Dr. Savage failed to take Ms. Tolbert’s sleep apnea into account in reaching
his RFC determination, his opinion has no bearing on the error the Commissioner
concedes: that the ALJ “did not adequately address Plaintiff’s allegations of falling
asleep during the day.” R. 30.
Nor do the opinions of the state agency’s two reviewing physicians. The first,
Dr. Arjmand, does not mention sleep apnea anywhere in his report. See id. 253-260.
The second, Dr. Bitzer, mentions Ms. Tolbert’s sleep apnea as a “secondary
diagnosis” and notes that due to “daytime drowsiness, [and] obesity,” Ms. Tolbert
“[s]hould avoid working at hazardous h[ei]g[h]ts or with hazardous machinery or
equipment.” Id. at 272, 276. He does not otherwise account for her inability to stay
awake during work hours or her need for breaks. Thus, neither Dr. Arjmand nor Dr.
Bitzer’s opinions contradict Dr. Ahmed’s, because both failed to adequately consider
Ms. Tolbert’s daytime drowsiness.
When sleep apnea and daytime drowsiness are taken into account, the
record is unequivocal that Ms. Tolbert is disabled.
To complete its review of the RFC evidence, the Court turns to the testimony
of vocational expert Lisa Gagliano, upon whom the ALJ relied heavily in reaching
his conclusion. See A.R. 436 (“Based on the testimony of the vocational expert, I
conclude that . . . [a] finding of ‘not disabled’ is [ ] appropriate.”) During the hearing,
the ALJ asked Ms. Gagliano to consider two hypotheticals. The first was as follows:
Claimant is currently 42 . . . years of age, a younger individual; eighth
grade education–that’s limited. And she does have past relevant work.
For a hypothetical individual matching that vocational profile first of all,
we note the morbid obesity that has been present consistently throughout
the entire period and the impact that that could have in terms of
aggravating, detrimentally affecting capacities in the presence of other
impairments. And other impairments are shown here.
But assume a hypothetical individual matching the claimant’s profile and
morbid obesity. If that person could occasionally lift and carry 20 pounds,
frequently 10—if that person could sit for six of eight hours, standing and
walking only two of eight—two hours out of an eight-hour period. That
would be intermittently, of course, and 10 minutes straight.
There is a limitation with regard to stairs and ramps; only occasional
climbing of short stairs or ramps. No work on ladders, ropes, or
scaffolding. No work at unprotected heights or around hazardous moving
machinery and only occasional exposure to dangerous conditions, such as
open vats or containers that one could fall or stumble into.
Posturally [sic], could only occasionally stoop, crouch; no kneeling; no
crawling in association with doing any work. But in terms of the weights
prescribed here, could frequently balance.
In the presence of pain syndrome, her depressive disorder, and the effects
of sleep apnea and/or medications, the individual would be limited to
understanding, remembering, and carrying out short and simple
instructions but would be able to maintain attention and concentration for
extended periods in that type of job function.
This person would be able to perform activities within a schedule,
maintaining the punctuality and attendance, and could use judgment and
make simple work-related decisions.
This person would be able to complete a normal work day and work week
and perform at a consistent pace within this established weight and
simple-short-instructions-type work. The individual would be limited to
only occasional interaction with the public but could respond
appropriately and interact appropriately with coworkers and supervisors.
No joint work projects with coworkers, but they could interact within the
This individual could respond to occasional and routine changes in this
work setting, and the individual could frequently travel independently or
use public transportation.
For this person, as described, what, if any work, including a consideration
of the claimant's past relevant work, could they perform?
Id. at 502-03. In response, Ms. Gagliano testified that there would be “no past work
available” and “a limited number of jobs that would still be available with that
hypothetical situation.” Id. at 504. The ALJ followed up with a second hypothetical,
which, as set forth below, accounts for Mrs. Tolbert’s daytime drowsiness secondary
to sleep apnea:
What if the hypothetical person matching the claimant’s vocational
profile, because of the chronic pain syndrome—there’ s evidence of that—
depression, lack of motivation, and, perhaps, some degree of fatigue or
tiredness[,] sleep apnea producing some degree of drowsiness and lack of
focus[,] as well as medications side effects, which would enhance, possibly,
the effects of drowsiness and attention—would require—would change the
mental limitations stated in that this person would only occasionally,
because of all of these things, be able to complete a normal work day and
work week and to perform at a consistent pace without an unreasonable
number and length of rest breaks . . . If you add those things into the first
hypothetical, in terms of making it more severe, what impact would that
have on the jobs cited?
Id. at 505-06 (emphasis added). Ms. Gagliano responded, unequivocally, “That
would eliminate all competitive employment. Those limitations are work
preclusive.” Id. at 506. An identical conclusion was reached by Ms. Kerr, the
vocational expert who testified at Ms. Tolbert’s first hearing before the ALJ in 2009:
Q: Now, if this hypothetical is, again, amended to limit sitting to only
four of eight hours and stand and walk still at two of eight hours.
And we make one other modification, sleeping due to dozing off one
to two hours total in an eight-hour period. What, if any, work could
you find for such an individual so limited?
A: That would preclude all competitive employment.
Id. at 43 (emphasis added).
There is no fact issue. When the limiting effects of Ms. Tolbert’s sleep apnea
are taken into account, the record supports only one conclusion: that Ms. Tolbert is
incapable of working.
For these reasons, the Court remands the case to the Social Security
Administration with instructions to calculate and award benefits to the Plaintiff.
Honorable Thomas M. Durkin
United States District Judge
Dated: July 18, 2017
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