Snedden v. Colvin

Filing 23

MEMORANDUM Opinion and Order Signed by the Honorable Sheila Finnegan on 2/29/2016: Plaintiff's Motion for Summary Judgment 11 is granted and Defendant's cross-motion 19 is denied. 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
ROSEMARY F. SNEDDEN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 14 C 9038
Magistrate Judge Finnegan

MEMORANDUM OPINION AND ORDER
Plaintiff Rosemary Snedden 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). Plaintiff filed a motion for summary
judgment in which she seeks reversal or remand for further proceedings (Doc. 11),
while Defendant filed a cross-motion that seeks affirmation of the decision (Doc. 19).
For the following reasons, Plaintiff’s motion is granted and Defendant’s motion is
denied.
PROCEDURAL HISTORY
Plaintiff applied for DIB on July 11, 2012, alleging that she became disabled on
June 8, 2012 due to degenerative arthritis in her hands, asthma, a rotator cuff tear in
her left shoulder, and high blood pressure. (R. 180, 201, 204). The Social Security
Administration denied Plaintiff’s application initially on October 22, 2012, and again
upon reconsideration on May 2, 2013. (R. 93, 99). She then filed a timely request for a

hearing and appeared before Administrative Law Judge Victoria A. Ferrer (the “ALJ”) on
May 23, 2014.

(R. 31-67).

The ALJ heard testimony from Plaintiff, who was

represented by counsel, and also a vocational expert (“VE”). On July 25, 2014, the ALJ
found that Plaintiff had the residual functional capacity (“RFC”) to perform light work with
several additional limitations, which rendered her capable of performing her past
relevant work as a call center agent. (R. 17, 25). Accordingly, the ALJ concluded that
Plaintiff was not disabled at any time from the alleged onset date through the date of
decision, and she denied Plaintiff’s application for benefits. (R. 25).
On November 11, 2014, Plaintiff filed a complaint for judicial review.

In her

motion for remand, she argues that the ALJ erred by: (1) overlooking certain testimony
in the credibility determination; (2) failing to incorporate each of Plaintiff’s impairments
into the RFC; and (3) failing to correctly assess the medical opinion evidence, due to the
ALJ’s ignoring of an opinion by Plaintiff’s treating psychiatrist, and mischaracterization
of the opinion of a consulting psychologist who examined Plaintiff.
FACTUAL BACKGROUND
Plaintiff was fifty-eight years of age at the time of the ALJ’s decision. (R. 69).
She lives with her adult daughter, has a high-school diploma, and prior to her
application for DIB, she worked as a call center agent for over fourteen years. (R. 41,
205-06). She left her job and the work force on June 8, 2012 when she no longer could
tolerate pain in her wrists while typing. (R. 36-37, 205). Although Plaintiff applied for
work after that date, including several positions that involved some degree of typing,
she has not been employed since June 2012. (R. 38-40).

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A.

Medical History
1.

January 2011 to December 2012

The first evidence of record dates to January 10, 2011, when Plaintiff visited her
primary care physician, Angela Sefah, M.D., for a general exam at Oak Forest Health
Center (“Oak Forest”). (R. 291). Dr. Sefah’s notes reflect that Plaintiff complained of
left shoulder pain.

(Id.).

Plaintiff’s current medications included triamterene (for

hypertension), enalapril (also for hypertension), an albuterol inhaler, and Tylenol 3 (for
pain). (Id.). Plaintiff’s past medical history, according to Dr. Sefah’s notes, included
bilateral ACL repairs, bilateral partial knee replacements, an abdominal hernia repair,
right rotator cuff surgery, and right thumb surgery. (R. 292). Plaintiff’s physical exam
was normal, and Dr. Sefah observed normal range of motion, normal strength, normal
gait, and absence of tenderness and swelling in Plaintiff’s musculoskeletal system.
(Id.).

She diagnosed Plaintiff with hypertension and obesity, along with controlled

asthma and left shoulder pain. (Id.). Notes also stated that Plaintiff had recently lost 50
pounds intentionally, and Dr. Sefah recommended that Plaintiff continue her course of
weight loss with a goal of ten pounds in the following three months. (R. 291-92).
At Dr. Sefah’s direction, Plaintiff returned for a follow-up appointment on April 5,
2011. (R. 289). Dr. Sefah noted Plaintiff’s report of a left rotator cuff tear and left
buttock pain.

(Id.).

Dr. Sefah observed limited range of motion in Plaintiff’s left

shoulder, and an absence of swelling or bruising in Plaintiff’s buttock.

(Id.).

She

diagnosed Plaintiff with rotator cuff syndrome and left buttock pain, added tramadol (a
pain reliever) to Plaintiff’s medication regimen, and referred her to an orthopedic

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specialist for repair of her rotator cuff tear. (R. 290). Notes also indicate that Plaintiff
had gained twelve pounds since the last visit.
Plaintiff next saw Dr. Sefah on October 17, 2011, at which time she reported that
she had not yet made an appointment with an orthopedic specialist. (R. 286). Dr.
Sefah again observed limited range of motion in Plaintiff’s left shoulder, but otherwise
Dr. Sefah found normal physical exam results. (R. 286-87). Plaintiff stated that the pain
associated with the tear was relieved by the Tylenol. (R. 286). Dr. Sefah stated that
Plaintiff’s weight management was improving, with twenty-five pounds lost in the prior
ten months, and she left Plaintiff’s diagnoses unaltered and refilled the medication
prescriptions.
Nearly six months later, on April 2, 2012, Plaintiff saw Dr. Sefah for a routine
visit. Plaintiff complained of left shoulder pain with minimal improvement since the last
visit. (R. 304). Plaintiff’s physical exam was once again normal, aside from mild lower
neck tenderness, moderate left shoulder pain and associated limited extension. (R.
305). Dr. Sefah found that Plaintiff’s weight management was worsening (due to an
eleven-pound weight gain), and she ordered Plaintiff to continue her present course of
pain management, diet, and exercise and also referred her to physical therapy. (R.
305-06).
On May 21, 2012, Plaintiff attended an occupational therapy appointment at Oak
Forest, at Dr. Sefah’s recommendation. (R. 322). Plaintiff told the therapist that she
had, in the past, improved her repaired right shoulder with therapy. She also explained
that her left shoulder was painful during activities of daily life, reaching, lifting items, and
while working on the computer. (Id.). During the physical exam, the therapist found

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decreased range of motion and pain in Plaintiff’s left shoulder during flexion, abduction,
extension, and rotation, and accordingly, the therapist recommended that Plaintiff begin
attending weekly therapy appointments.

(R. 322-25).

Plaintiff attended the first

appointment on June 5, 2012 (a few days before she last worked), but she cancelled or
did not appear for therapy following that date. (R. 318-20). At the hearing before the
ALJ, Plaintiff explained that she experienced a “period of depression” at this time and
lacked motivation to attend the appointments. (R. 45).
About one month later, on July 11, 2012, Plaintiff applied for DIB, alleging
disability on the basis of arthritis in her hands, asthma, the left rotator cuff tear, and
hypertension.

On August 24, 2012, Plaintiff presented at Little Company of Mary

Hospital’s emergency department due to low back pain. (R. 332). After lifting a laundry
basket, Plaintiff had developed pain in her right and left lower back. (R. 334). The
treating doctor diagnosed her with a muscle strain, prescribed pain medication, and told
her to follow-up with her primary care physician. (R. 333, 338). Not long after, on
September 4, 2012, Plaintiff saw Dr. Sefah, who described Plaintiff as “tearful and
stressed out . . . because [her] sister-in-law died and [she] lost her job.” (R. 359). Dr.
Sefah found normal physical exam results aside from mild tenderness in Plaintiff’s lower
back, refilled Plaintiff’s hypertension medications, newly prescribed methocarbamol (a
muscle relaxant), and she also diagnosed Plaintiff with depression and referred her to a
psychiatrist. (R. 360-61).
On October 9, 2012, Plaintiff attended a consultative physical exam with M.S.
Patil, M.D., at the request of the Illinois Bureau of Disability Determination Services
(“DDS”). (R. 363). Plaintiff told Dr. Patil that she had a long history of asthma and

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hypertension, arthritis with recurrent stiffness and pain in her hands, and neck pain that
sometimes radiated through her back. (Id.). Dr. Patil noted that Plaintiff had a left
rotator cuff tear that had not yet been repaired, along with prior ACL repairs and knee
replacement surgeries.

(R. 363-64).

At that time, Plaintiff’s current medications

included methocarbamol, Tylenol, enalapril, triamterene, and albuterol inhalers. (Id.).
Plaintiff’s physical examination was essentially normal.

She appeared moderately

obese, with normal gait, and normal heart sounds (without arrhythmia or tachycardia),
but she had limited range of motion in her cervical and lumbar spine and also in her
shoulders. (R. 365). Dr. Patil found that Plaintiff had mild difficulty with certain fine and
gross manipulations. (R. 366). In an x-ray of her left hand, Dr. Patil found osteoarthritis
and in an x-ray of her cervical spine, he found some straightening that might have been
“secondary to muscle spasms, pain, or positioning.”

He also observed moderate

narrowing of intervertebral disc space and mild narrowing of the C4-C5 neural foramen.
(R. 367). Dr. Patil noted that Plaintiff’s chronic asthma and hypertension were stable
and controlled. (Id.).
Not long after, on October 17, 2012, non-examining physician Reynaldo
Gotanco, M.D., completed a consulting opinion for DDS.

(R. 69-75). Dr. Gotanco

opined that Plaintiff had decreased range of motion in her cervical spine, shoulders, and
knees, but no signs of muscle wasting or paralysis. (R. 75). Notwithstanding these
limitations and also the osteoarthritis in her left hand, Dr. Gotanco opined that Plaintiff’s
limitations would not preclude her from performing her past work as a call center agent.
(R. 75-76). Days later, on October 22, 2012, Plaintiff’s application for DIB was denied.
She sought reconsideration, and alleged that her condition had worsened because she

6

had been diagnosed with depression and had developed pain in both shoulders. (R.
224).
On December 17, 2012, Plaintiff attended a musculoskeletal outpatient
appointment at Oak Forest due to left shoulder and neck pain. (R. 377). She stated
that pain was constant but fluctuated in intensity, and she told the doctor that
medication and therapy alleviated the pain. (Id.). During the physical exam, the doctor
found that Plaintiff’s left shoulder was limited in range of motion and strength. (R. 379).
The doctor diagnosed her with shoulder pain and refilled her prescriptions for Tylenol 3,
methocarbamol, and tramadol. (R. 380).
Notes from the musculoskeletal appointment also reflect that Plaintiff was taking
citalopram and trazodone (each an antidepressant) as of this date. (R. 378). As earlier
stated, Dr. Sefah referred Plaintiff to a psychiatrist in September 2012, but the record
does not contain notes or otherwise document a psychiatric visit between the
appointment with Dr. Sefah and this musculoskeletal visit. However, Plaintiff testified at
the hearing before the ALJ that she had visited psychiatrist Kaleel Khan, M.D. at Oak
Forest Urgent Care and he apparently prescribed these antidepressants, so although it
is unclear exactly when Plaintiff began a course of psychiatric care (and the extent of
that treatment), the record establishes that she began taking antidepressants sometime
in fall 2012.
2.

January 2013 to April 2014

Plaintiff attended a consultative psychological exam with Jeffrey Karr, Ph.D., on
April 11, 2013 at the request of DDS.

(R. 226, 384).

Dr. Karr’s report describes

Plaintiff’s life circumstances and daily activities, and also recites above-mentioned

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portions of her medical history. (R. 384-85). Dr. Karr noted that Plaintiff had recently
run out of medication and that, according to Plaintiff, she quickly angers and is unable to
sleep when she is unmedicated.

(R. 385).

Plaintiff told Dr. Karr that she was

depressed and had seen a psychiatrist six months earlier (presumably Dr. Khan, whose
notes are not part of the record), and she described associated symptoms of
withdrawal, sleep problems, irritability, persistent sadness, inability to relax, constant
worrying, and some racing thoughts. (Id.). In the exam, Dr. Karr observed that Plaintiff
had heightened affect, rapid and pressured speech, and lengthy responses “that at
times were tangential.” (Id.). Although she lacked visible physical distress and tremors,
she appeared “intense, on-edge, anxious.” (R. 386). Dr. Karr observed “no manifest
signs of gross psychopathy,” but he nevertheless diagnosed Plaintiff with major
depressive disorder and anxiety disorder, as her alleged depressive symptoms were
“consistent with her presentation . . . .” (R. 386-87).
Plaintiff visited Oak Forest psychiatrist Samina Khattak, M.D., on April 24, 2013
and complained that she had run out of medication. (R. 392). Dr. Khattak’s notes
reflect that Plaintiff had been unable to attend previous scheduled psychiatric
appointments (the record does not indicate why), and also that Plaintiff’s constant pain
affected her ability “to do anything.” (Id.). Notes reflect that Plaintiff had been taking
Xanax to relieve anxiety for the past several months, and Dr. Khattak diagnosed her
with major depressive disorder that she characterized as “worsening.” (R. 394). She
refilled prescriptions for trazodone and citalopram. (Id.).
Non-examining psychologist Lionel Hudspeth, Psy.D., completed a consulting
opinion for DDS on April 29, 2013. Dr. Hudspeth reviewed records related to Plaintiff’s

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mental health treatment, including the consulting exam report by Dr. Karr (but not the
April 24 treatment note from Dr. Khattak). Dr. Hudspeth opined:
It is reasonable for this claimant to experience some mild depressive and
anxiety symptoms, secondary to financial/life circumstance issues as well
as physical issues. Claimant’s limitations are more related to physical and
life circumstance issues rather than to due to [sic] a severe mental
disorder. This is a non severe mental impairment.
(R. 84). The following day, non-examining physician Vidya Madala, M.D. also wrote a
consulting opinion for DDS that was identical to Dr. Gotanco’s earlier opinion from
October 2012. A few days later, on May 2, 2013, Plaintiff saw Dr. Sefah for a routine
appointment, at which Plaintiff’s diagnoses remained unchanged and Dr. Sefah
continued the ongoing management of her physical conditions. (R. 395-96). Plaintiff’s
application for benefits was again denied on the same day.
On May 19, 2013, Plaintiff visited MetroSouth Medical Center (“MetroSouth”) with
complaints of lumbar pain. (R. 437). The emergency room physician treated her pain
with injectable medication, and she was discharged with Percocet and Valium for pain
relief. (R. 438, 443). About two months later, on July 29, 2013, Plaintiff was admitted at
Rush University Medical Center after she fell down five steps while walking her dog. (R.
404). She sustained traumatic hemorrhages in her head, lacerations on her forehand
and right hand, a hematoma on her right eye, and abrasions on her right knee and right
hand.

(R. 405-06).

A CT of the brain performed during the visit evidenced

hemorrhaging, cerebral atrophy and small vessel ischemic disease, while CTs of the
spine

evidenced

no

acute

spinal

injury

but

some

abnormalities

(including

disc/osteophyte complex, multilevel foraminal stenosis, and anterolisthesis in the
cervical spine). (R. 409). At discharge, Plaintiff was prescribed Norco (a pain reliever),

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Keppra (an anticonvulsant), and acetaminophen. (R. 424). Plaintiff was told she may
resume her taking citalopram, enalpril, trazodone, and her inhalers as needed. (Id.).
However, Plaintiff testified at her hearing that she did not resume taking the
antidepressants (citalopram and trazadone) because she did not believe they were
helpful and they made her “very drowsy.” (R. 46). Notes following this date reflect no
prescriptions for antidepressants or other psychiatric treatment.
On August 31, 2013, Plaintiff saw Solomon Okai, M.D., her new primary care
physician, to follow-up on the July injury. She reported some residual hearing loss,
swelling, neck pain, dizziness and headaches, along with preexisting arthritic pain in the
hands and knees. (R. 535). During the physical exam, Dr. Okai noted limited range of
motion in both shoulders, and back pain due to torn ligaments (the record does not
indicate the cause of this injury). (R. 536). On October 31, 2013, Plaintiff returned to
MetroSouth with complaints of low back pain, and she was discharged with
prescriptions for Vicodin (a pain reliever) and prednisone (an anti-inflammatory). (R.
472-73).

Plaintiff later explained at the administrative hearing that her visit to

MetroSouth (along with several others described hereafter) was for the specific purpose
of obtaining these pain medications, as Dr. Okai was unable or unwilling to prescribe
them. (R. 50-51). About two weeks later, on November 9, 2013, Plaintiff returned to Dr.
Okai and complained of back pain.

Her physical exam was normal, but Dr. Okai

observed that she was grossly overweight and had tenderness in her lower back. (R.
537). On November 21, 2013, Plaintiff visited MetroSouth due to sudden chest pain.
(R. 488). A chest x-ray evidenced a moderately enlarged heart, but otherwise, Plaintiff’s
chest was stable, and the doctor concluded that her chest pain was likely related to

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gastrointestinal issues.

(R. 489, 493).

She was discharged when the pain was

controlled. (R. 489).
On December 22, 2013, Plaintiff presented at MetroSouth complaining of low
back pain. As with prior visits, the physical exam was normal aside from lower back
pain, and she was discharged with Norco and prednisone. She told the doctor that
medications and rest alleviated her pain. (R. 526-27). At a January 1, 2014 follow-up
appointment with Dr. Okai, Plaintiff was diagnosed with degenerative joint disease of
the lumbar spine on the basis of a December 17, 2013 x-ray. (R. 539). Plaintiff again
complained of back pain at the visit, and Dr. Okai prescribed tramadol and referred her
to a neurology specialist. (R. 540). His notes also documented morbid obesity, as
Plaintiff was at least 100 pounds overweight (the recent MetroSouth visit note
documented a body mass index of 37.1 (see R. 525)).
On February 23, 2014, Plaintiff again visited MetroSouth due to back pain. She
told doctors that “lying still” and medications improved her symptoms, and she was
discharged with Norco and Flexeril (a muscle relaxant). (R. 548-49). Likewise, Plaintiff
visited MetroSouth due to pack pain on March 31, 2014, and was discharged with
Norco. (R. 565-66). Plaintiff then saw Michael Sturgill, M.D., a neurological specialist,
on April 18, 2014, and Dr. Sturgill suggested that Plaintiff’s back pain was likely related
to sacroilitis. (R. 579-80). Dr. Sturgill found normal range of motion in Plaintiff’s neck
but right-sided pain in the sacroiliac joint, and he ordered an MRI of the thoracic spine
and x-rays of the lumbar and cervical spines (the results of which, if obtained, are not in
the record).

(R. 580).

He further suggested that she may be a candidate for a

sacroiliac injection (for pain relief). (Id.). The visit with Dr. Sturgill on April 18, 2014 is

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the last medical appointment of record. Plaintiff then appeared before the ALJ for a
hearing on May 23, 2014.
B.

The ALJ’s Decision
In a decision dated July 25, 2014, the ALJ determined that Plaintiff has

degenerative joint disease of the right knee, status post partial knee prosthetic,
degenerative disc disease of the lumbar and cervical spine, osteoarthritis in the left
hand, partial left rotator cuff tear, bilateral rotator cuff syndrome, and obesity, each a
severe impairment under the Social Security regulations.

(R. 14).

The ALJ also

acknowledged that Plaintiff has asthma, depression, and anxiety disorder, but
concluded that none of these impairments caused more than a minimal limitation in
Plaintiff’s ability to perform basic work activities. (R. 15-16). 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 she found
that none of the impairments, alone or in combination, met the criteria of the relevant
listings. (R. 16-17).
Thereafter, the ALJ found that Plaintiff’s RFC (that is, what Plaintiff can still do
despite her limitations) permitted light work and allowed her to return to her job as a call
center agent. Plaintiff also had the following additional restrictions to her RFC: she
could only occasionally lift or carry twenty pounds, but frequently lift or carry ten pounds;
she could sit for six hours in an eight-hour work day, and stand or walk for six hours in
an eight-hour work day, but could sit continuously for only thirty minutes before needing
two minutes of standing or walking; she could only occasionally climb ramps, stairs,
ladders, ropes, or scaffolds; she could only occasionally crouch, reach in front laterally

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and above the shoulder level bilaterally; and she could frequently perform bilateral gross
manipulations.1 (R. 17). In addition, Plaintiff must avoid concentrated exposure to
wetness or humidity, pulmonary irritants, and hazards such as hazardous machinery,
working in high exposed places, and working with sharp objects. (Id.).
In making the RFC determination, the ALJ reviewed and considered Plaintiff’s
subjective complaints and allegations, her daily activities, medical records, and medical
opinions, including the one given by non-examining psychologist Dr. Hudspeth on April
29, 2013. (R. 17-25). The ALJ specifically discussed the consulting report of examining
psychologist Dr. Karr, who examined Plaintiff on April 11, 2013, and in that discussion,
the ALJ mistakenly attributed to Dr. Karr portions of Dr. Hudspeth’s opinion interpreting
his report, as further discussed below. Additionally, the ALJ afforded “great weight” to
each of the opinions offered by the DDS doctors (Dr. Hudspeth, Dr. Gotanco, and Dr.
Madala). In addition, the ALJ’s opinion discussed at great length the medical evidence
in relation to each one of Plaintiff’s conditions. (See R. 19-24).
The ALJ found not credible Plaintiff’s allegations regarding the extent of her pain
and symptoms. In so concluding, she cited lack of objective support for the extent of
limitations Plaintiff alleged, inconsistency in Plaintiff’s testimony and daily activities, and
Plaintiff’s application for jobs involving typing after her alleged onset date despite her
allegation that she no longer could type due to pain. (R. 19-24). Therefore, relying on

1

At one point, the ALJ stated that Plaintiff’s RFC allowed her to perform medium work
with certain restrictions (R. 17), but narrative text several pages later stated that Plaintiff could
perform light work. (Compare R. 17 with R. 23). The ALJ’s incorporation of limitations at the 20
and 10 pound weight levels suggest that the ALJ intended to say that Plaintiff could perform
light work, since these weight levels are part of the regulatory definition of “light” (but not
medium) work. See 20 C.F.R. § 404.1567(b) (“Light work involves lifting no more than 20
pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.”).

13

the testimony of the VE, the ALJ determined at step four that Plaintiff could return to her
past relevant work as a call center agent, a job classified at the sedentary level, and the
ALJ thus concluded that Plaintiff was not disabled at any time between the alleged
onset date and the date of decision. (R. 25).
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 this 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
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)

14

(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).2 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
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
The Court examines each of the three claims of error made by the ALJ in turn.

2

The regulations governing the determination of disability for DIB are found at 20 C.F.R. §
404.1501 et seq.

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1.

Credibility Determination

The ALJ found that Plaintiff’s “statements concerning the intensity, persistence,
and limiting effects of [her] symptoms are not entirely credible . . . .” (R. 19). She did
not provide clear or organized reasons, but it appears that the basis for her finding was:
a lack of objective evidence for Plaintiff’s allegations (R. 19-24); inconsistency in some
of Plaintiff’s allegations (such as her testimony she was unable to walk her dog but
admissions in her medical records that she walked her dog regularly) (R. 21);
inconsistency between Plaintiff’s allegations and her activities of daily living (Id.); and
her job applications following the alleged onset date for employment that involved
typing, despite her allegation that pain prevented her from typing. (R. 18-19, 21).
Plaintiff argues that the ALJ erred in the credibility determination by ignoring her
allegations about medication side effects and her need to lie down several times per
day. It is true that the ALJ made no specific mention of or finding about Plaintiff’s
testimony at the hearing that (1) she lies down six times each day, in thirty minute
intervals, “mostly because of the pain” (R. 61), and (2) her medications cause
drowsiness, dizziness, and other side effects. The Court agrees that the ALJ erred
when analyzing the evidence regarding Plaintiff’s alleged need to lie down regularly.
The VE testified, in response to a question by Plaintiff’s attorney, that Plaintiff would not
be able to sustain her past relevant work—or apparently, any work—if she indeed were
required to lie down for thirty minutes, six times daily. (See R. 65).
Defendant cites Harris v. Barnhart, 356 F.3d 926, 930 (8th Cir. 2004) for the
proposition that a need to lie down requires medical evidence, and the Seventh Circuit
has found no error in an ALJ’s rejection of testimony about a claimant’s need to lie down

16

when the medical evidence—in particular, the opinions of medical providers—provided
no corroboration for the allegation. See Books v. Chater, 91 F.3d 972, 981 (7th Cir.
1996). Yet in Indoranto v. Barnhart, the Seventh Circuit remanded a decision in which
the ALJ had “disbeliev[ed] in particular [the plaintiff’s] testimony that her pain required
her to lie down . . .” on the basis that the allegation lacked clinical support. 374 F.3d
470, 473-74 (7th Cir. 2004). Notwithstanding the deference courts owe to an ALJ’s
credibility finding, the Seventh Circuit noted that the record was “replete with evidence”
of the plaintiff’s severe back pain and there was “nothing incredible or inconsistent
about her statements that she lies down . . . during the day to alleviate her pain[,]” and it
remanded the case on account of this evidence. Id. at 475.
Indoranto is persuasive here. The ALJ made no mention of Plaintiff’s testimony
regarding her need to lie down throughout the day, yet the record has ample facts to
make Plaintiff’s allegation plausible. As earlier stated, Plaintiff was diagnosed with a
degenerative back condition, apparently had ligament tears in her back, and had welldocumented obesity.

She made recurring emergency room visits for strong opioid

medications to alleviate back pain, and saw at least one specialist about her back
condition. The notion that she must lie down to alleviate pain, as she stated at the
hearing, is not far-fetched. Notably, the hearing was not the first time she stated that
lying down alleviated her pain; medical records reflect that she told doctors at
MetroSouth that this was an ameliorative measure on at least two occasions, each
several months prior to her administrative hearing. While the Court does not tell the
ALJ that she should or must find the testimony credible, the ALJ should have made a

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specific finding about this statement, supported the finding with specific reasons based
on the record.
Further, none of the ALJ’s credibility findings was inconsistent with Plaintiff’s
testimony that she must lie down regularly. The ALJ observed that Plaintiff performs
only light chores, such as dusting, and these would allow her to take the rest breaks
about which she testified. (R. 19). In the discussion of medical evidence related to
Plaintiff’s degenerative lumbar condition, the ALJ does not reason that Plaintiff’s
allegation about lying down regularly cannot be substantiated by the evidence. Finally,
it is not apparent why certain normal physical exam results (such as normal gait,
absence of extremity pain, normal reflexes, and the like) would necessarily be
inconsistent with her testimony that she needs to lie down several times each day. (See
R. 19-20). At heart, the veracity of Plaintiff’s allegation is a key factual question, and the
lack of a specific discussion about the credibility of this statement prevents the Court
from meaningfully reviewing the determination in this case. Thus, the Court remands
the decision so the ALJ can address this testimony in the context of the assessment
and Plaintiff’s RFC and logically bridge the evidence to the conclusion.
Since the Court is remanding the case, the ALJ should also address Plaintiff’s
allegations about medication side effects since there is no discussion of them in the
ALJ’s decision.

Plaintiff complained in her application that her medications caused

drowsiness, constipation, dizziness, and frequent urination, and at the administrative
hearing, she stated that citalopram, which she began taking following her depression
diagnosis, made her drowsy. (R. 45-47, 220, 241). These side effects may not alter the

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RFC assessment, but the ALJ should take the opportunity to address this upon remand
to resolve any uncertainty.
2.

Additional Impairments

Relying on SSR 96-8p, Plaintiff next contends that the ALJ failed to consider
each of her impairments and therefore the RFC assessment is flawed. Specifically, she
identifies the following: evidence of a mild cardiomegaly (enlarged heart), a small
pericardial effusion (fluid around the heart), cerebral atrophy, chronic small vessel
ischemic disease (deterioration to small arteries in the brain), old lacunar infarcts (past
strokes from the ischemic disease), diverticulosis (formation of small, bulging pockets in
the colon), and a hiatal hernia. (Doc. 12, at 12).
Plaintiff’s argument fails. Although each condition is documented in the medical
records, Plaintiff makes no attempt to identify particular limitations that resulted from
these conditions for which the RFC assessment should have accounted. While it is
generally true that the Seventh Circuit has found reversible error in an ALJ’s failure to
consider each of a claimant’s medically determinable impairments, see Golembiewski v.
Barnhart, 322 F.3d 912, 917 (7th Cir. 2003), this case differs because it is not apparent
that the conditions the ALJ allegedly ignored limited Plaintiff in any way. See also Terry,
580 F.3d at 477 (similarly finding error when the RFC did not account for impairments
that imposed particular limitations). In other words, although Plaintiff has identified a
handful of medical conditions, she has not argued, much less demonstrated, that any of
them are “impairments” that affect her RFC.
For example, as to the heart conditions (cardiomegaly and pericardial effusion),
Plaintiff does not explain how they relate to any functional limitation that she has alleged

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is disabling (which generally concern pain in her extremities and back). Thus, it is
unclear why the ALJ’s omission constitutes reversible error. Notably, Plaintiff’s doctors
found the condition of her chest stable in an emergency room visit for chest pain,
notwithstanding these heart abnormalities, and none of the conditions was of serious
concern to them. (See R. 489, 493). Nor did Plaintiff seek out care related to the heart
conditions. Likewise, as to the diverticulosis, nothing in the record suggests a particular
limitation with which Plaintiff copes as a result of the condition, and Plaintiff does not
identify what such a limitation might be. The same is true of the other conditions she
identifies. Because the ALJ need not discuss each piece of evidence in the record, and
because there is no basis for concluding that the lack of discussion of the handful of
conditions Plaintiff identifies would have altered the RFC, there was no error in the
ALJ’s decision on this point.
3.

Medical Opinions

Finally, Plaintiff urges that the ALJ did not properly consider and weigh all the
medical opinion evidence because the ALJ ignored the opinion of Plaintiff’s treating
psychiatrist and mischaracterized the opinion of a consulting psychologist.
a.

Dr. Khattak

Plaintiff argues that the ALJ failed to consider Dr. Khattak’s opinion about her
depression. “Medical opinions are statements from physicians and psychologists or
other acceptable medical sources that reflect judgments about the nature and severity
of [a claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis and
prognosis, what [the claimant] can still do despite impairment(s), and [the claimant’s]
physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2). ALJs are obligated to

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consider each of the medical opinions in the record, see id. § 404.1527(b) (the ALJ “will
always consider the medical opinions in [the claimant’s] case record . . .”), and the
regulations provide several factors for determining the weight the ALJ is to afford an
opinion based upon its source (whether a treating doctor or only a non-examining
consultant) and its supportability. See generally id. § 404.1527(c). The ALJ must offer
“good reasons” for the weight she assigns. Scott v. Astrue, 647 F.3d 734, 739 (7th Cir.
2011); Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2010).
In the “History of Present Illness” (“HPI”) section of the April 24, 2013 visit note,
Dr. Khattak wrote: “The patient presents with a psychiatric problem. The psychiatric
problem(s) is described as depression and anxiety.

The severity of the psychiatric

problem(s) is moderate. The psychiatric problem(s) is worsening.” (R. 392). Plaintiff
interprets this as an opinion that the ALJ failed to consider.

The argument is

unconvincing for several reasons. First, Plaintiff overlooks that the HPI is not a portion
of the treatment note where a doctor offers an objective assessment or opinion.
Instead, the HPI merely reflects the patient’s subjective statements about the problem
for which she is seeking care and a history of that problem, if any.

See Peter R.

Lichstein, Clinical Methods: The History, Physical, and Laboratory Examinations 32 (3d
ed. 1990) (explaining that the HPI reflects subjective information shared by the patient:
“[t]he history of the present illness (HPI) includes all of the patient’s history, both recent
and remote, that is pertinent to understanding the current illness. In completing the HPI,
the physician will often collect pertinent information about the patient’s past history . . . ,
the patient’s family history . . . , and the social history . . . .”); Wieczorek v. Colvin, No.
13 C 4017, 2014 WL 3811015, at *7 (N.D. Ill. July 31, 2014) (explaining that a treatment

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note’s HPI section reflected the plaintiff’s “own subjective complaints about his
symptoms”). Accordingly, this portion of the note is not an “opinion” of Dr. Khattak and
the ALJ would have been incorrect to consider it as one.
Second, to the extent that Dr. Khattak offered a medical opinion, the ALJ did
consider it.

As described, Dr. Khattak stated in an objective portion of her note

(although not pointed to by Plaintiff) that the depression was “worsening.” (R. 394).
The regulations require the ALJ to consider every medical opinion, and although the
ALJ does not expressly quote this portion of the note, she specifically discussed Dr.
Khattak’s treatment note in her decision. (R. 23). This is the sole treatment note of
record from Dr. Khattak, and thus, the position that the ALJ failed to consider the
prognosis is tenuous.
But even if the ALJ erred by not discussing and weighting this opinion about the
prognosis of Plaintiff’s depression, the error was harmless.

Notably, Dr. Khattak

apparently saw Plaintiff on only one occasion, and this raises the question of how Dr.
Khattak could assess that Plaintiff’s condition was worsening, since Dr. Khattak lacked
a baseline from which to measure the supposed deterioration of Plaintiff’s depression.
In addition, Plaintiff herself testified that the depression was periodic, and she spoke of
it in the past tense at the hearing. She testified that she stopped taking her medications
following a temporary cessation during her July 29, 2013 hospital stay, and she did not
resume taking the antidepressants because she felt better when she was not
medicated. Accordingly, even had the ALJ discussed Dr. Khattak’s opinion that the
depression was “worsening” and weighted that opinion, Plaintiff’s own testimony

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contradicted the prognosis and thereby entitled Dr. Khattak’s opinion to minimal (if any)
weight.
b.

Dr. Karr (and Dr. Hudspeth)

Plaintiff finally argues that the ALJ erred by mischaracterizing the opinion of Dr.
Karr, a psychologist who performed a consulting examination at the request of DDS.
The ALJ wrote in her decision: “Dr. Karr further noted that the claimant’s limitations
were more related to physical and life circumstance issues rather than to due to a
severe mental disorder and thus, concluded the claimant’s condition non-severe.” (R.
23) (sic). Actually, it was Dr. Hudspeth who gave this opinion. While Dr. Karr discussed
Plaintiff’s life difficulties in his post-examination note, he diagnosed her with depression
and he did not opine that her symptoms owed to those difficulties. (See R. 384-87). Dr.
Hudspeth, the non-examining psychiatrist, interpreted Dr. Karr’s report and other parts
of the record, and it was he who wrote the opinion that the ALJ attributed to Dr. Karr.
(Compare R. 23 with R. 84). The ALJ went on to greatly weight Dr. Hudspeth’s opinion.
Although Plaintiff is correct that the ALJ misstated the opinion (attributing Dr.
Hudspeth’s opinion to Dr. Karr), this was harmless since another clinician of record
offered the opinion and that opinion was ultimately incorporated into the RFC
assessment.

That said, there is a need for remand due to a related and more

significant error: the ALJ’s weighting of Dr. Hudspeth’s opinion. Although Plaintiff does
not argue this point, the Court notes that the ALJ offered no reasons at all for greatly
weighting Dr. Hudspeth’s opinion.

Instead, the decision describes only what Dr.

Hudspeth said. (See R. 24). This is reversible error, since the ALJ must provide “good
reasons” for the weight she assigns to a medical opinion. Scott, 647 F.3d at 739;

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Bauer, 532 F.3d at 608. On remand, the ALJ should revisit the medical opinions and
provide legally sufficient reasons for the weight she assigns.
CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Summary Judgment (Doc. 11)
is granted and Defendant’s cross-motion (Doc. 19) is denied. 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: February 29, 2016

_____________________________
SHEILA FINNEGAN
United States Magistrate Judge

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