Mullin v. Colvin

Filing 24

ORDER: Plaintiff David Mullins ("Plaintiff") appeals the decision of the Commissioner of Social Security ("Defendant," or the "Commissioner") denying his application for disability benefits. Before the Court is Plaintiff 's motion for judgment on the pleadings [dkt. 12 ]. For the following reasons, Plaintiff's motion is GRANTED and the Administrative Law Judge's decision is reversed and remanded for further proceedings consistent with this opinion. [For further details see order] - Signed by the Honorable Susan E. Cox on 5/17/2016. Mailed notice (np, ) (Main Document 24 replaced on 5/17/2016) (np, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID MULLIN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 15 C 1258
Magistrate Judge
Susan E. Cox

ORDER
Plaintiff David Mullins (“Plaintiff”) appeals the decision of the Commissioner of Social
Security (“Defendant,” or the “Commissioner”) denying his application for disability benefits.
Before the Court is Plaintiff’s motion for judgment on the pleadings [dkt. 12]. For the following
reasons, Plaintiff’s motion is GRANTED and the Administrative Law Judge’s decision is
reversed and remanded for further proceedings consistent with this opinion.
STATEMENT
On July 16, 2012, Plaintiff filed a claim for Disability Insurance Benefits (“DIB”) under
Title II of the Social Security Act (the “Act”), alleging disability beginning May 31, 2008, due to
impairments arising from degenerative disc disease, spinal fusion, nerve damage, and hand
problems. (R. 194, 214.) The claim was denied initially and upon reconsideration, after which
Plaintiff timely requested a hearing before an Administrative Law Judge (“ALJ”), which was
held on March 14, 2014. (R. 29-93.) On April 24, 2014, the ALJ denied Plaintiff’s claim, finding
him not disabled under the Act. (R. 10-28.) The Social Security Administration Appeals Council
then denied Plaintiff’s request for review, leaving the ALJ’s decision as the final decision of the

Commissioner and, therefore, reviewable by the District Court under 42 U.S.C. § 405(g). See
Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).
Plaintiff was born on December 6, 1952, and was sixty-one years old at the time of his
hearing. (R. 22, 194.) He has a high school education and worked for over thirty years as an auto
mechanic and as a labor union business agent. (R. 230.) Plaintiff’s medical history includes
several back surgeries, the most recent of which was a spinal fusion surgery in 2007. (R. 768.)
Plaintiff has also had a series of hand surgeries, including carpal tunnel release surgery, surgery
to repair his left pinky finger following an accident in 2008, trigger finger release surgeries for
his right index and ring fingers in 2009, and trigger finger release surgery for his left index and
ring fingers in 2010. (R. 541, 634-639, 677-678, 850, 870-871.) In May 2011, he reported left
shoulder pain, which was treated with an injection. (R. 816.) In December 2012 and January
2013, he underwent a course of occupational therapy to treat bilateral hand pain. (R. 1299, 13241331.) In June 2013, he reported continuing bilateral hand pain and numbness, particularly in the
thumb and index finger, which was worse with stretching and reaching. (R. 1439.) In 2013, he
also had neck pain which was treated with physical therapy, and shoulder pain which was treated
with injections. (R. 1439, 1476, 1504, 1513.) Plaintiff has also suffered other ailments which are
not germane to this opinion.
Two of his treating physicians, spinal surgeon Dr. Ghanayem and primary care physician
Keith E. Vesilek, M.D., each submitted “Residual Functional Capacity Questionnaires”
completed in August of 2012 and November of 2013 respectively; these documents were
substantively identical, and both doctors opined that Plaintiff’s lumbar impairments imposed
severe functional restrictions on Plaintiff. (R. 1195-96, 1558-59.) For example, the doctors
shared the opinion that Plaintiff could sit for no more than five minutes at a time for a total of

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less than an hour in a workday, that he could stand for no more than five minutes at a time for a
total of less than one hour in a workday, and that he could never lift ten pounds. (Id.) Both also
averred he had “limitations in doing repetitive reaching, handling or fingering,” but neither
explained whether it was his hands, fingers or arms that led to that conclusion or indicated what
percentage of a workday he could safely reach, grasp, or engage in fine manipulation. (R. 1159,
1196.)
In September 2012, state agency reviewer Richard Bilinsky, M.D., reviewed Plaintiff’s
medical file and opined that he could stand or walk for about six hours and sit for about six hours
in an eight-hour workday, and that he could occasionally lift twenty pounds and frequently lift
ten pounds. (R. 100.) He found that Plaintiff’s back pain would cause some postural limitations,
but noted no manipulative limitations. (R. 100-101.) On March 4, 2013, a second reviewing
physician, James Hinchen, M.D., reviewed Plaintiff’s file again, including treatment records
updated through February 22, 2013, and affirmed Dr. Bilinsky’s findings. (R. 107-108, 115-117.)
Medical expert Sai R. Nimmagadda, M.D., reviewed Plaintiff’s medical record and
testified at the hearing before the ALJ on March 14, 2014. (R. 29, 69-79.) He identified as severe
impairments Plaintiff’s degenerative lumbar disc disease, degenerative cervical disc disease,
bilateral carpal tunnel syndrome, ulcerative colitis, and chronic cholecystitis (inflammation of
the gallbladder) or cholangitis (inflammation of a bile duct or ducts). Dr. Nimmagadda also
stated that Plaintiff has shoulder pain that “is going to flare off and on, intermittently, depending
on the use and extent,” but can be controlled with medications and physical therapy. (R. 72-73.)
Dr. Nimmagadda opined that Plaintiff was restricted to lifting ten pounds occasionally or
frequently, and was able to stand for less than two hours and sit for about six hours in an eighthour workday, periodically alternating between sitting and standing every 30 to 60 minutes. (R.

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73.) As to Plaintiff’s upper extremities, Dr. Nimmagadda opined that he was limited to
occasional overhead use of his right arm due to shoulder pain, and that he was limited to only
occasional fine manipulation with either hand because of his history of carpal tunnel syndrome
and trigger fingers. (R. 73-74.) The medical expert testified that his assessment was based on the
evidence in the file, on the two treating physicians’ opinions, and on Plaintiff’s long history of
back pain and treatment. (R. 75.) Upon questioning, he clarified that the full range of limitations
dated back to June 2012, when Plaintiff first began reporting neuropathic pain and intensifying
his treatments. He then acknowledged that it is “hard to put a specific time point” on when that
pain began or to quantify Plaintiff’s sit/stand restrictions between 2008 and 2012. (R. 76, 79.) Dr.
Nimmagadda further testified that Plaintiff’s fingering limitations dated all the way back to the
alleged onset date in 2008, because of Plaintiff’s history of carpal tunnel surgery. (R. 78-79.)
At the hearing, the ALJ asked Vocational Expert Thomas F. Dunleavy (the “VE”) to
assume an individual of Plaintiff’s past age, education, and work experience, who retained the
residual functional capacity to perform light work except that he could only occasionally
balance, stoop, crouch, crawl, climb ramps and stairs; could never climb ladders ropes or
scaffolds; and could never work around hazards or in loud noise environments or be exposed to
concentrated amounts of vibration. (R. 85-86.) The VE opined that such a person would be able
to perform his past work as a union business agent as described in the DOT and as generally
performed. (R. 86.) Given Plaintiff’s transferrable skills, such a person could also perform the
jobs of car sales and auto parts sales. (R. 90-91.) In a second hypothetical, the ALJ asked the VE
to consider that the person had several additional limitations, including a sit/stand limitation and
the following upper-extremity limitations: no more than occasional reaching overhead with the
right hand and no more than occasional fine fingering bilaterally. (Id.) A discussion that ensued

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focused mainly on the nature and impacts of the sit/stand limitation, with the VE ultimately
concluding that the second hypothetical person would not be able to perform Plaintiff’s past
work. (R. 87-89.)
The ALJ issued a written decision on April 24, 2014, following the five-step analytical
process required by 20 C.F.R. § 416.920. As a preliminary matter, the ALJ found that Plaintiff
last met the insured status requirements for DIB eligibility on December 31, 2013. At step one,
the ALJ found that Plaintiff had not engaged in substantial gainful activity since his application
date of May 31, 2008. At step two, the ALJ concluded that Plaintiff had severe impairments of
obesity, degenerative disc disease of the lumbar spine, post laminectomy syndrome, status post
fusion, mild thoracic degenerative disc disease and thoracic disc bulge, degenerative disc disease
of the cervical spine, history of carpal tunnel syndrome and bilateral trigger finger surgeries. (R.
12.) She also found that Plaintiff had the non-severe impairments of hypertension, GERD,
history of ulcerative colitis, left shoulder pain, early degenerative joint disease in his right knee,
and tinnitus. At step three, the ALJ concluded that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of a listed impairment.
The ALJ then determined that Plaintiff retained the Residual Functional Capacity (“RFC”) to
perform light work, except that he may only occasionally balance, stoop, crouch, crawl and
climb ramps and stairs; he is never to climb ladders ropes or scaffolds; he can never work around
hazards such as unprotected heights and dangerous moving machinery; he is never to work in
loud noise environments; he is never to perform work involving exposure to concentrated
amounts of vibrations. (R. 15.)
At step four, the ALJ concluded that, through his date last insured, Plaintiff was capable
of performing his past relevant work as a labor union business agent. (R. 21.) At step five, the

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ALJ then made the alternative finding that, based on Plaintiff’s age, education, transferrable
work skills, and residual functional capacity, there were other jobs in the national economy that
Plaintiff could perform, including auto sales and auto parts sales. (R. 21-22.) These findings led
to the conclusion that Plaintiff was not disabled, as defined by the Act, from his alleged onset
date through his date last insured. (R. 22.)
DISCUSSION
I.

Standard of Review
Section 405(g) provides in relevant part that “[t]he findings of the Commissioner of

Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42
U.S.C. § 405(g). Judicial review of the ALJ’s decision is limited to determining whether the
ALJ’s findings are supported by substantial evidence or based upon legal error. Clifford v. Apfel,
227 F.3d 863, 869 (7th Cir. 2000); Stevenson v. Chater, 105 F.3d 1151, 1153 (7th Cir. 1997).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Skinner v. Astrue, 478
F.3d 836, 841 (7th Cir. 2007). This Court may not substitute its judgment for that of the
Commissioner by reevaluating facts, reweighing evidence, resolving conflicts in evidence, or
deciding questions of credibility. Skinner, 478 F.3d at 841; see also Elder v. Astrue, 529 F.3d
408, 413 (7th Cir. 2008) (holding that the ALJ’s decision must be affirmed even if “reasonable
minds could differ” as long as “the decision is adequately supported”) (citation omitted).
The ALJ is not required to address “every piece of evidence or testimony in the record,
[but] the ALJ’s analysis must provide some glimpse into the reasoning behind her decision to
deny benefits.” Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir. 2001). In cases where the ALJ
denies benefits, “he must build an accurate and logical bridge from the evidence to his

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conclusion.” Clifford, 227 F.3d at 872. The ALJ must at least minimally articulate the “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); Murphy v. Astrue, 496 F.3d 630, 634
(7th Cir. 2007). “An ALJ has a duty to fully develop the record before drawing any conclusions .
. . and must adequately articulate his analysis so that we can follow his reasoning.” See Boiles v.
Barnhart, 395 F.3d 421, 425 (7th Cir. 2005).
II.

The ALJ’s RFC Assessment Failed to Account for Plaintiff’s Hand Impairments
In step two of her evaluation, the ALJ found the Plaintiff’s history of carpal tunnel and

bilateral trigger finger surgery to be “severe impairments,” which by regulation means that those
impairments “significantly limit [his] ability to perform basic work activities.” (R. 17); Moore v.
Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014); see 20 C.F.R. § 404.1520(c). Where an ALJ finds
that a claimant has a hand impairment, she may find that person limited to either “occasional” or
“frequent” use of the hands for some actions at work. See, e.g., Marteau v. Colvin, No. 12 C
4058, 2015 WL 639266 at *2 (N.D. Ill. Feb. 13, 2015) (ALJ found claimant with ulnar palsy of
the left hand could “occasionally perform find manipulation with his left hand”); Cabrera v.
Astrue, No. 10 C 4715, 2011 WL 1526734 at *9 (N.D. Ill. Apr. 20, 2011) (Claimant with status
post carpal tunnel surgery and cubital tunnel syndrome retained RFC for “frequent but not
constant handling and fingering.”). Social Security Regulations define a limitation of
“occasional” as occurring no more than one-third and “frequent” as occurring from one-third to
two-thirds of a normal workday. SSR 83-10, 1983 WL 31251 at *5-6. Here, the ALJ has
imposed no limit at all on Plaintiff’s use of his hands, meaning that she found him capable of up
to constant reaching, handling, or fingering over an eight-hour workday, outside of regular
breaks. She has not adequately explained how Plaintiff’s hand impairments could “significantly

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limit” his work abilities in her step two finding and, at the same time, have no impact on his
capacity for work in her RFC finding.
Both of Plaintiff’s treating physicians found he would have some upper extremity
limitations, though they did not quantify what those might be. (R. 1159, 1196.) Testifying
medical expert Dr. Nimmagadda opined that Plaintiff’s hand restrictions limited him to
occasional fingering as far back as his alleged onset date in 2008, and that shoulder pain later
limited him to only occasional overhead reaching with his right hand. (R. 73-74, 78-79.) Only
the state agency reviewing physicians opined that Plaintiff would have no work-related
limitations in manipulation. (R. 101, 115-117.)
The ALJ’s reasons for entirely rejecting Dr. Nimmagadda’s assessment of Plaintiff’s
upper extremity limitations do not bear scrutiny. First, she states “the treatment record supports
improvement with surgery [and] reflects intermittent problems from hand to hand that come and
go.” (R. 20.) In this vein, the Commissioner points out that the ALJ “discussed” the evidence of
Plaintiff’s arm, hand, and finger problems. [dkt. 23 at 12, citing R. 16-17.] However, recitation
of a claimant’s medical history is not the same as analysis, and the ALJ did not explain how hand
symptoms that “come and go,” even after surgery, are consistent with an ability to use one’s
hands frequently or even constantly at work. The ALJ also finds that Plaintiff’s “activities with
his car are contrary to significant limitations with his hands.” (R. 20.) It may be true that
significant limitations are not warranted, but the ALJ has here assessed an RFC that lacks any
hand limitations at all. (R. 20.) The ALJ has not built a “logical bridge” from the medical
evidence of Plaintiff’s numerous hand ailments to such an extreme conclusion. See Craft v.
Astrue, 539 F.3d 668, 673 (7th Cir. 2008.)
III.

The ALJ’s Questioning of the Vocational Expert Was Flawed.

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Because the ALJ has failed to adequately support the lack of any hand or arm restrictions
in her RFC assessment, her questioning of the VE is also flawed. In order for the testimony of a
VE to be helpful in discerning whether there are jobs a claimant can perform, the ALJ must
direct the VE to the totality of the claimant’s limitations. O’Connor-Spinner v. Astrue, 627 F.3d
614, 619 (7th Cir. 2010). Here, in questioning the VE on the basis of her flawed RFC finding, the
ALJ failed to elicit testimony indicating that Plaintiff can perform his past job, or, alternately,
that there are jobs in the economy that he can perform. A second hypothetical question posed by
the ALJ did include some restrictions in reaching and fingering; however, those restrictions were
included in a list of restrictions that included a need to change positions between sitting and
standing every 30 minutes. The VE ultimately opined that there would be no jobs available for
someone of Plaintiff’s age and vocational profile given those cumulative restrictions. The ALJ
did not pose any hypotheticals that included upper extremities limitations in the absence of the
sit/stand restriction, leaving no evidence on record to explain whether an individual with any
upper extremities restrictions can perform the Plaintiff’s past work or the other jobs the ALJ has
found are available to him. Compare White v. Astrue, No. 11 C 8368, 2012 WL 5995743 at *2
(N.D. Ill. Nov. 29, 2012) (VE testimony showed that “[e]ven if [claimant] were limited to only
occasional (as opposed to frequent) fingering, handling, and feeling,” jobs were still available.)
Plaintiff also contends that the ALJ’s assessment of his lifting and sit/stand restrictions
are erroneous. Because this case must be remanded to address the extent Plaintiff’s impairments
in his upper extremities and to remedy the step four and five findings accordingly, the Court
forms no opinion on the ALJ’s analysis of his exertional or postural limitations at this time.
IV.

Subjective Symptom Evaluation

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Plaintiff also alleges that the ALJ erred in discounting his credibility while evaluating the
intensity and persistence of his symptoms. The Social Security Administration (the
“Administration”) has recently clarified its sub-regulatory policies about symptom evaluation,
eliminating the term “credibility” to emphasize that “subjective symptom evaluation is not an
examination of the individual’s character.” See SSR 16-3p, 2016 WL 1119029 at *1 (effective
March 28, 2016). This case requires remand to correct the above-discussed errors in the
evaluation of Plaintiff’s RFC. However, on remand, the ALJ should also take the opportunity to
re-evaluate the intensity and persistence of Claimant's symptoms in light of the Administration's
recent guidance.
CONCLUSION
For the foregoing reasons, this decision of the ALJ is reversed and remanded for
proceedings consistent with this opinion.
ENTER:
DATED: May 17, 2016
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Susan E. Cox
United States Magistrate Judge

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