Mills v. Colvin

Filing 33

MEMORANDUM Opinion and Order Signed by the Honorable M. David Weisman on 9/27/2016. Mailed notice (ao,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANTHONY MILLS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the U.S. Social
Security Administration,1
Defendant.

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No. 14 C 9307
Magistrate Judge M. David Weisman

MEMORANDUM OPINION AND ORDER
Plaintiff Anthony Mills appeals defendant’s decision denying his application for Social
Security benefits. For the reasons set forth below, the Court reverses the Commissioner’s
decision and remands this case for further proceedings.

Background
Plaintiff filed an application for benefits on September 17, 2008, alleging a disability
onset date of June 8, 2008, due to kidney problems, hypertension, and congestive heart failure.
(R. 175-77, 193.) His application was denied initially on October 27, 2008, and again on
reconsideration on June 2, 2009. (R. 95-96.)

Plaintiff requested a hearing before an

Administrative Law Judge (“ALJ”), which was held on August 23, 2010. (R. 44-92, 111-13.)
On November 18, 2010, the ALJ issued a decision denying plaintiff’s application. (R. 29-39.)
The Appeals Council denied review (R. 1-3, 23-25), leaving the ALJ’s decision as the final
decision of the Commissioner. See Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).

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Carolyn W. Colvin is substituted for her predecessor, Michael J. Astrue, pursuant to Federal Rule of Civil
Procedure 25(d).

Plaintiff appealed to this Court, which remanded the action for further proceedings on August 14,
2013. Mills v. Colvin, 959 F. Supp. 2d 1079 (N.D. Ill. 2013); (R. 938-66.)
On July 28, 2014, a second administrative hearing was held before an ALJ. (R. 832-74.)
On September 5, 2014, the ALJ again denied Mills’ benefits claim. (R. 813-26.) This suit
followed.

Discussion
The Court reviews the ALJ’s decision deferentially, affirming if it is supported by
“substantial evidence in the record,” i.e., “‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” White v. Sullivan, 965 F.2d 133, 136 (7th Cir.
1992) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Although this standard is
generous, it is not entirely uncritical,” and the case must be remanded if the “decision lacks
evidentiary support.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
Under the Social Security Act, disability is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The
regulations prescribe a five-part sequential test for determining whether a claimant is disabled.
See 20 C.F.R. § 404.1520. Under the regulations, the Commissioner must consider: (1) whether
the claimant has performed any substantial gainful activity during the period for which she
claims disability; (2) if not, whether the claimant has a severe impairment or combination of
impairments; (3) if so, whether the claimant’s impairment meets or equals any listed impairment;
(4) if not, whether the claimant retains the residual functional capacity (“RFC”) to perform her

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past relevant work; and (5) if not, whether she is unable to perform any other work existing in
significant numbers in the national economy. Id.; Zurawski v. Halter, 245 F.3d 881, 885 (7th
Cir. 2001). The claimant bears the burden of proof at steps one through four, and if that burden
is met, the burden shifts at step five to the Commissioner to provide evidence that the claimant is
capable of performing work existing in significant numbers in the national economy. See 20
C.F.R. § 404.1560(c)(2).
At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity
since September 17, 2008, the application date. (R. 818.) At step two, the ALJ found that
plaintiff had the severe impairments of congestive heart failure and hypertension. (Id.) At step
three, the ALJ determined that plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments. (Id.)
At step four, the ALJ found that plaintiff had no past relevant work but had the residual
functional capacity (“RFC”) to perform light work with additional restrictions. (R. 819, 824.)
At step five, the ALJ found that there were jobs that existed in significant numbers in the
national economy that plaintiff could perform, and thus he was not disabled. (R. 825-26.)
Plaintiff asserts that the ALJ improperly weighed the opinion of Dr. Naveed Mallick,
plaintiff’s treating physician. Dr. Mallick diagnosed plaintiff with New York Heart Association
Class II heart failure (R. 810), the symptoms of which are described as: “Slight limitation of
physical activity. Comfortable at rest. Ordinary physical activity results in fatigue, palpitation,
dyspnea (shortness of breath).” See Am. Heart Ass’n, Classes of Heart Failure, available at,
http://www.heart.org/HEARTORG/Conditions/HeartFailure/AboutHeartFailure/Classes-ofHeart-Failure_UCM_306328_Article.jsp#.V9lyBE1TFv4 (last visited Sept. 14, 2016).

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He said that plaintiff: (1) could sit, stand, or walk less than two hours of an eight-hour workday;
(2) would need to shift positions at will; (3) would need to take an unscheduled break every
hour; (4) would need to elevate his legs to waist level about fifteen percent of an eight-hour
workday; and (5) could occasionally lift and carry up to a maximum of ten pounds. (R. 811-12.)
An ALJ must give a treating physician’s opinion controlling weight if “it is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.”

20 C.F.R. §

404.1527(c)(2). “If an ALJ does not give a treating physician’s opinion controlling weight, the
regulations require [him] 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,” in assessing the opinion. Moss v.
Astrue, 555 F.3d 556, 561 (7th Cir. 2009); see 20 C.F.R. § 404.1527(c).
The ALJ gave “slight weight” to Dr. Mallick’s opinion because it was “too
accommodating” and was not supported by objective evidence. (R. 823-24.) The ALJ reached
this conclusion, however, without addressing the regulatory factors applicable to medical opinion
evidence; that is, without considering that Dr. Mallick was plaintiff’s treating physician, that he
treated plaintiff from January of 2009 through June 2012 (R. 793-99, 801-802, 805-06, 809-12,
1141-47, 1150-51), that he examined plaintiff numerous times during that period (id.), and that
his opinion is corroborated by a January 2009 echocardiogram of plaintiff’s heart. (R. 705
(stating that plaintiff has a left ventricle ejection fraction of thirty seven percent); see
http://my.clevelandclinic.org/services/heart/disorders/heart-failure-what-is/ejectionfraction (last
visited Sept. 13, 2016) (stating that “a normal [left ventricle ejection fraction] ranges from 5570%” and “[a]n [ejection fraction] of less than 40% may confirm a diagnosis of heart failure”).

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Because the ALJ did not evaluate Dr. Mallick’s opinion in accordance with the regulations, and
his rejection of that opinion impacted the outcome of the disability determination, the case must
be remanded for a new determination. See 20 C.F.R. § 404.1527(c) (stating that an ALJ “will
evaluate every medical opinion” according to the regulatory factors).
Plaintiff also argues that the ALJ erred by failing to identify the evidentiary basis for his
RFC assessment. In making an RFC determination, “the ALJ must decide which treating and
examining doctors’ opinions should receive weight, determine how much weight should be given
to each opinion, and explain the reasons for that finding.” Burke v. Colvin, No. 11 C 50001,
2013 WL 5288155, at *10 (N.D. Ill. Sept. 17, 2013). Moreover, the ALJ’s RFC assessment
“must include a narrative discussion describing how the evidence supports each conclusion,
citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations).” SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996).
The ALJ concluded that plaintiff had the RFC:
[T]o lift and carry 20 pounds occasionally and 10 pounds frequently[,] [to] be on
his feet standing/walking about 4 hours in an 8-hour workday and sit about 6
hours, with normal rest periods. . . . [, but cannot] work at heights, climb ladders,
or frequently negotiate stairs. . . . [, can] occasionally stoop, crouch, kneel, or
crawl[,] . . . . should avoid concentrated exposure to fumes, dusts, odors, gases, or
poorly ventilated areas or extremes of temperatures. . . . [, and] should avoid
operation of moving or dangerous machinery. . . . [,] and would be unsuited for
work impacted by fast-paced production quotas.
(R. 819.) The ALJ then summarized the medical evidence, but did not specifically identify the
evidence that supports each of these limitations. (See R. 819-24.) Absent that information, the
Court cannot determine whether the RFC is supported by substantial evidence. See Briscoe ex.
rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005) (“In addition to relying on substantial
evidence, the ALJ must also explain his analysis of the evidence with enough detail and clarity to
permit meaningful appellate review.”).
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The Court also agrees with plaintiff that the ALJ’s credibility determination is flawed.
The ALJ said, for example, that plaintiff’s “infrequent[] . . . treatment” and “medication noncompliance” are “inconsistent with his allegations of disabling impairments.”

(R. 822.)

However, an ALJ can draw an adverse inference from such facts only after “considering possible
reasons [plaintiff] may not [have] compl[ied] with treatment or [sought] treatment consistent
with the degree of his . . . complaints,” SSR 16-3p, 2016 WL 1119029, at *8 (Mar. 16, 2016),2
something the ALJ did not do. Given that lapse, the ALJ’s credibility determination cannot be
sustained.

Conclusion
For the reasons set forth above, the Court denies the Commissioner’s motion for
summary judgment [28], reverses the Commissioner’s decision and remands this case to the
Commissioner for further proceedings consistent with this Memorandum Opinion and Order.
SO ORDERED.

ENTERED: September 27, 2016

_________________________________
M. David Weisman
United States Magistrate Judge

2

SSR 16-3p, 2016 WL 1119029 (S.S.A. Mar. 16, 2016) superseded SSR 96-7p, the regulation that governed
credibility evaluations when this case was decided. Both regulations, however, require this inquiry. See id., at *8;
SSR 96-7p, 1996 WL 374186, at *7 (July 2, 1996).

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